September 2007
47.47 Narrative statements and preliminary examination questionnaires
There is no limitation on the disclosure of narrative statements made pursuant to a statutory obligation under the Act. This does not mean that the official receiver is free to disclose information obtained by him/her to any person for any purpose. The official receiver may generally disclose information only for the purpose for which it was obtained (see paragraph 47.6).
The narrative statement and preliminary information questionnaire are obtained through the use of compulsory powers i.e. section 235 (company) and section 291 (bankruptcy) and the information contained in these documents is confidential. There is a strong public interest that this duty of confidence should be observed, because it facilitates and promotes the proper performance of the duties of the official receiver. Information obtained under compulsion must generally speaking only be used for the purposes for which those powers were conferred.
47.48 Provision of blank copies of the preliminary information questionnaire
Blank copies of the preliminary information questionnaire should only be supplied by the official receiver in connection with actual cases. All requests for blank copies of the questionnaire, which are not related to a specific case, should be referred to Technical Section for advice and comment. For example, if academics or the Citizens Advice Bureau want a blank copy of the preliminary questionnaire for research or assistance purposes, they should be referred to Technical Section.
47.49 When may the narrative statement and preliminary information questionnaire be disclosed
As described at paragraph 47.5, disclosure may be in the public interest. In deciding whether to disclose the narrative statement or preliminary information questionnaire in a case the official receiver has to judge where the balance lies. He/she should consider consulting Technical Section.
47.50 Copies of statements for company officers and bankrupts
An officer of a liquidating company or a bankrupt is entitled to a copy of any statement he/she gives to the official receiver, and a copy of any preliminary information questionnaire completed (see Chapter 11:Interviews and statements). If requested to supply a copy of these documents in these circumstances, the official receiver should do so without charge. The original papers may be produced, if necessary, in civil proceedings on a summons issued at the instance of the officer or bankrupt.
47.51 Request for formal production of statements
Copies of narrative statements and PIQs which contain information that is "reasonably required" by the liquidator or trustee will be handed over to the liquidator or trustee (see paragraph 47.46). Should the liquidator or trustee request copies of statements or PIQs not handed over to him/her by the official receiver having given due consideration to the contents of the statements or a witness summons be served on the official receiver, the matter should immediately be referred to Technical Section (see also paragraphs 47.22 - 47.27).
Notes: [s235 or s333]
47.52 Copies of statements for third parties
Copies of preliminary examinations and statements made by company officers or bankrupts can be handed to third parties, including the liquidator or trustee, provided that the written consent of the person who was examined or gave the statement has been obtained. The written consent must be produced to the official receiver and a copy retained on his/her file (see also paragraph 47.46 and chapter 11). Statements made voluntarily by third parties should not be disclosed without the written consent of the third party. The consent should be to the disclosure to a specific party for a specific purpose e.g. to a trustee for the purpose of realising assets.
47.53 Disclosure of information relating to assets and liabilities (Amended November 2010)
Official receivers frequently receive requests from creditors or their representatives for information about the assets and liabilities of an insolvent.
It is an offence for a person to falsely claim to be a creditor in order to obtain sight of documents to which he/she has no right of inspection under the Rules.
[Note: Rule 12.18(1)]
A creditor or member state liquidator has the right to require an office-holder, which includes the official receiver, to provide a list of the insolvent’s creditors and the amounts of their respective debts. The official receiver must provide the list to the person requiring it as soon as reasonable practicable. The appropriate fee may be charged for doing so but it is not anticipated that the official receiver would charge for sending such details unless significant expense is involved. A party authorised to act on behalf of a creditor, including the liquidator or trustee of an insolvent creditor may exercise this right. The above does not entitle creditors (or their representatives) to inspect material held by the official receiver.
Once a statement of affairs has been filed with the court or delivered to the registrar of companies (in a winding up or administration), the right of a creditor to require a list of creditors from an office-holder ceases and creditors are expected to inspect the court file for information (see paragraph 47.67(a)).
For cases where the bankruptcy petition was presented on or after 6 April 2010, the official receiver may omit the name and address of any creditor from a list of creditors, if he/she is of the view that its disclosure would be prejudicial to the conduct of the proceedings or might reasonably be expected to lead to violence against any person, provided that the amount of the debt in question is still shown in the list and a statement is included that the name and address of the creditor has been omitted in respect of that debt.
Notes: [r12.17 substituted by r12A.54] [r7.31 substituted by r7.31A] [r13.11]
The official receiver may provide certain other information to a creditor or his/her representative provided that the creditor is identified and that the representative, e.g. a solicitor or accountant, identifies himself/herself and his/her credentials, and has authority to act for the creditor in that particular insolvency. The information that the official receiver may provide to such a person or the creditor himself/herself includes confirmation of the existence of the proceedings, and whether or not a meeting of creditors is to be held, and, if so the date it will be held, the general nature and value of the assets and the amounts of the preferential and other liabilities in round figures.
Where the representative claims to have a general authority to act on behalf of a body, e.g. a mains service provider or local authority, the information should only be disclosed upon receipt of an authority which is specific to the case in question.
47.54 Information obtained under s235
Information and documents obtained by the office holder pursuant to section 235 may properly be disclosed to the Secretary of State so that he/she may determine whether disqualification proceedings may be brought. This is so, even if the office holder may have given an assurance that the information and documents will be used only for the purposes of the administration, since such disclosure is ‘within the purposes of the administration’ (Re Polly Peck International Plc, ex parte the joint administrators [1994] BCC 15).
In the ordinary course of events any such assurances should not be given.
(See also paragraph 47.58).
47.55 Disclosure of statements made during private examination
Section 236 gives the court the power to summon, to a private examination, any person thought to be capable of giving information about the affairs of a company in liquidation.
Section 366 provides for the private examination of the bankrupt (or his spouse/civil partner or former spouse/civil partner, or third parties believed to be in possession of the bankrupt’s property or information about his affairs).
Under section 433 any statement made under s236/s366 may be used in any proceedings (whether or not under the Insolvency Act 1986) brought against any person making or concurring in the making of the statement but it may not be used as evidence against anyone else (Re Norwich [1884] LR 27 ChD 515) (but see later paragraph 47.58).
Notes: [s236 and 366] [s433]
47.56 Disclosure of private examination transcript
The information obtained pursuant to a section 236 examination will often be of great interest to third parties, who may wish to use it for the purpose of pursuing causes of action against either the examinee or any other person.
The transcripts of the private examination of a person under this section attract legal professional privilege (Re Dubai Bank Ltd v Galadari & Others. [1989] 5 BCC 722) (see Chapter 64: Legal Professional Privilege), but this is subject to the power of the court to allow inspection under rule 9.5(2). Unless the court orders otherwise, inspection of the papers is limited to:
a) the applicant for an order under the applicable section, or
b) any person who could have applied for such an order in respect of the affairs of the same insolvent.
Notes: [r9.5(2) and (3)]
The court may order disclosure of information obtained under section 236 to third parties if it will assist in winding up the company, or it is otherwise justified in the interests of justice in a particular case (see Barlow Clowes Gilt Managers Ltd [1992] Ch208.
The position is different where the office-holder has obtained information under section 236/366, and is either authorised or under a duty to disclose it to another. The House of Lords, in Re Arrows (No 4)[1994] 3 WLR 656, held that ‘where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure’.
Office holders are subject to the following disclosure/reporting requirements:
Under section 218 of the Insolvency Act 1986, a liquidator is obliged, if it appears to him in the course of a winding up that any past or present officer of the company, or any member of it, has been guilty of any offence in relation to the company for which he is criminally liable, to report the matter to the official receiver. Additionally, the court may direct the liquidator to report the matter to the prosecuting authorities.
Under the Companies Directors Disqualification Act 1986 and the Insolvent Companies (Reports on Conduct of Directors) Rules 1996, an office holder is obliged to make reports and supply information to the Secretary of State for BIS where it appears that a disqualification order ought to be made.
In a compulsory winding up it is the duty of the liquidator to provide such information, documents and assistance to the official receiver as the official receiver may reasonably require for the purposes of carrying out his/her functions.
Rule 9.5(4) gives the court discretion to decide who may inspect the records of examination conducted under section 236.
In Arrows No 4 [1994] 3 WLR 656 it was held that rule 9.5(4) is substantive and not merely procedural, and that directions of the court were required for the release of the record of a section 236 examination held by an insolvency practitioner. As rule 9.5(4) also applies in bankruptcy cases, it would therefore follow that the same would also apply in respect of an examination under section 366.
Notes: [r9.5(4)]
The House of Lords in the Arrows case held that although a judge of the Companies Court had a discretion pursuant to rule 9.5 whether or not to authorise the release of transcripts to the SFO, there was no discretion to fetter or prevent the use by the SFO of the transcripts in criminal proceedings (but see paragraph 47.58).
In Re Trachtenberg [1993] BCC 492 the Court of Appeal held that documents can be obtained by the SFO under their statutory powers from an office holder, even after charges have been brought against the section 236 examinee. According to the House of Lords in R v Director of Serious Fraud Office, ex p Smith [1993] AC1 the record of an examination which took place after the examinee was charged could similarly be obtained by the SFO.
47.58 Private/public examinations and the privilege against self incrimination
The privilege against self incrimination does not apply to a failed company director or bankrupt when examined under section 133/235/236/366, as the case may be, (Bishopsgate Investment Management Ltd (in provisional liquidation) v Maxwell, [1993] Ch1, [1992] BCC 222).
Notes: [s133, s235, s236 and s366]
Following the decision of the European Court of Human Rights in Saunders v United Kingdom [1997] 23 EHRR 313: [1997] BCC 872, the Attorney General issued guidance to prosecutors on the use in criminal trials of interview transcripts obtained under compulsion, (148NLJ208). Transcripts are not to be used in evidence against the interviewee. The European Court held that there had been a breach of Article 6, (the right to a fair trial) when transcripts of Mr Saunders' interviews with Departmental inspectors were subsequently used against him. The law and best practice in this area is still developing. The Human Rights Act 1998 came into force on 2 October 2000, effectively incorporating the European Convention into domestic law (Chapter 83, Human Rights Act 1998).
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