Private examination - the hearing

Part 4

Private examination - the hearing

March 2011 

23.48 The official receiver and the hearing

Where the official receiver is the applicant he/she, or the assistant official receiver, should attend at court in person. The official receiver may be represented by a solicitor, with or without counsel [Note 1]. The official receiver should normally only employ counsel where the assets in the estate are sufficient to cover the cost of doing so or adequate funds are provided by a third party. Where the official receiver considers that the exceptional circumstances of the case require the employment of counsel and there are no or insufficient funds, these circumstances should be reported to Technical Section before a debit balance is incurred.


23.49 The respondent’s legal representation

The respondent may be accompanied by a solicitor, with or without counsel. The respondent is responsible for meeting the costs of his/her legal representatives [Note 2]. 


23.50 Other attendees

In addition to the official receiver and the respondent any person who was also able to make the application (see paragraph 23.4)  and a creditor who has provided information on which the application was based may also attend unless the applicant objects. Although the official receiver may object to their attendance he/she should not do so (see paragraph 23.57) [Note 3].


23.51 The applicant’s expenses

The applicant’s expenses shall be paid out of the estate account, unless the court otherwise directs [Note 4].


23.52 The respondent’s travelling expenses

The respondent must be offered a reasonable sum in respect of his/her travelling expenses incurred in enabling him/her to attend the hearing [Note 5]. A debit balance may be incurred in this instance. The respondent should be asked whether they require an advance for this purpose well before the hearing.


23.53 Other expenses of the respondent

The respondent may, at the court’s discretion, be able to claim for other expenses incurred in attending the hearing, for example, a witness fee, compensation for loss of earnings, etc [Note 6]. The Council of the Law Society has advised its members that if they attend for a hearing in either the High Court or a County Court they should make a claim for their conduct money and professional witness allowance under the Rules of the Supreme Court.


23.54 The costs of the hearing

The court may order the respondent to pay the costs of the hearing where, in its opinion, he/she has unjustifiably failed to provide the required information. The court may order the respondent to pay the costs of an application to deliver up property in his/her possession or to repay any debt [Note 7]. The applicant, including in certain circumstances the official receiver as liquidator or trustee, see paragraph 23.35, may be ordered by the court to pay the costs of the application.


23.55 The hearing – the official receiver

The official receiver or his/her legal representative, as the applicant, may put such questions to the respondent as the court may allow [Note 8]. The official receiver may wish to consider providing a list of questions to the court prior to the hearing to assist the court in deciding which questions to allow (see also paragraph 23.42).


23.56 The hearing – the respondent

If the respondent is legally represented his solicitor, or counsel, may put such questions to him/her as the court allows. The respondent’s solicitor or counsel may also make representations on his/her behalf [Note 9]. The court may order the respondent  to clarify any matter or provide additional information. The court will direct which of the questions he/she is required to answer and in what form, for example by way of a witness statement [Note 10]. If the respondent is examined on oath he/she may not refuse to answer any question allowed to be put by the court on the ground of self-incrimination [Note 11].


23.57 The hearing – other attendees

Any person (see paragraph 23.4) who, is allowed to attend the hearing, may put questions to the respondent through the official receiver with the permission of the court [Note 12]. The official receiver should not discourage such questions which may elicit further information from the respondent. The official receiver should, however, obtain details of the substance of any questions before the hearing to ensure their relevance.


23.58 Record of the hearing

The shorthand writer will take a written record of the hearing. The written record will, either, be read over either to, or by the respondent and signed by him/her at a venue fixed by the court [Note 13]. Unlike the record of a public examination, there is no need for verification by a statement of truth.


23.59 Written record as evidence

The written record may be used as evidence against the respondent in any proceedings under the Insolvency Act 1986 and any other Act of Parliament [Note 14]. This includes any proceedings under the Directors Disqualification Act 1986. The wide use to which the written record can be put may influence the conditions imposed by the court under which the hearing takes place, see paragraph 23.41 for further information and Arrows Ltd (No 2) [1992] B.C.C. 446.


23.60 Access to the written record and other documents

The written record of the examination and any witness statements submitted by the respondent in order to comply with the application will not be placed on the court file unless the court directs otherwise [Note 15]. The only persons who are entitled, without an order of the court, to inspect the written record, copies of the questions put to the respondent, or proposed to be put to him/her together with any answers are the applicant for the examination or anyone who could have made an application [Note 16]. The court may from time to time give directions as to the custody and inspection of any of the above documents or the provision of copies or extracts from them [Note 17]. Further guidance on disclosure of information generally is given in Chapter 47.

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