September 2007
The term ‘records’ includes all books of account, papers and other documents in existence at the date of the winding-up or bankruptcy order which belong to the company/ bankrupt.
47.60 Disclosure of information to third parties
The official receiver should not make an insolvent’s records available to third parties, or disclose information in them, except as detailed in this chapter and elsewhere in the Technical Manual. In difficult cases Technical Section should be consulted. Any disclosure request from a body responsible for regulating the conduct of insolvency practitioners should be referred to Insolvency Practitioner Unit, who will then liaise directly with the licensing body.
47.61 Bankrupts and officers of a company
A bankrupt, or someone specifically authorised by him/her in writing, may inspect his/her own records in connection with matters arising out of the bankruptcy. The same applies in respect of officers of a company in liquidation who are in office at the date of the winding up. If a former officer of the company seeks access to the accounting records, the official receiver should verify the reason the records are being requested, and ask the former officer to specify the records he/she wishes to see. Should the official receiver decide to allow access to the records, access should be limited to the records which relate to the period the former officer was in post.
The permission to inspect the records includes the need by the bankrupt or company officer to have access to those records for the purposes of completing a Self Assessment return for personal taxation purposes.
If inspection is requested for any other purpose (e.g. separate legal proceedings), the official receiver should consult Technical Section and await advice before allowing inspection.
47.62 Witness summons for production
The official receiver may be required to produce an insolvent’s records on receipt of a witness summons issued at the instance of any officer of the company or bankrupt or of any party to civil proceedings who has had dealings with the insolvent. It will be for the parties to the proceedings (and not the official receiver or a member of his staff) to give evidence on the records in these circumstances.
47.63 Inspection of books by creditors and contributories generally
Creditors and contributories only have a right to inspect a company’s records if the court makes an order to that effect (but see paragraph 47.64). If the court makes such an order, the creditor or contributory can have copies of the documents on payment of the appropriate fee. The court will grant permission in cases where the request is connected to the liquidation (Re North Brazilian Sugar Factories (1887) 37 ChD 83) and in other suitable cases e.g. where a creditor needs to obtain information to defend a claim under a guarantee. However, an order under section 155 will not assist a creditor or contributory where the records sought are not held by the company (Re DPR Futures Ltd [1989] 5 BCC 603). In this case it was held that s155 extends only to books and papers in the possession of the company: it cannot, for instance, extend to documents formerly in the custody of the company which have been seized by the SFO.
The official receiver should point out to the party requiring inspection that it is usual for a summons to be issued before the accounting records will be produced in any legal proceedings.
Notes: [s155 (1)] [r12.15 substituted by r12A.52] [12.15A substituted by r12A.53] [r13.11]
47.64 Discretion to permit inspection of books by creditor (or in company cases contributory)
On a strict interpretation of the law the official receiver may require a director to obtain an order under section 155 before allowing inspection of the company’s records. The official receiver as liquidator may, however, exercise a discretion to permit inspection of non-privileged and non-confidential company records to a creditor or contributory, where that party is prepared to reimburse the official receiver for any expense or where some benefit to the winding-up will accrue by granting permission (Re ACLI Metals (London) Ltd (AML Holdings Inc. v Auger) [1989] 5 BCC 749). See also paragraph 47.63.
Notes: (s155)
There is no equivalent to section 155 in bankruptcy cases. Should a creditor in a bankruptcy request inspection of the bankrupt’s records, the official receiver should seek the bankrupt's written consent to the creditor's inspection. Should the bankrupt refuse to give consent then access to the records should not be allowed. If the bankrupt's consent to inspection is obtained, in considering whether or not to exercise his/her discretion, the official receiver should take into account the willingness to reimburse his/her expenses, and any benefit to the bankruptcy which may accrue.
47.65 Statutory rights of government departments
Section 155(1) does not exclude or restrict any statutory rights of a government department (whether a creditor or not) to inspect an insolvent’s records. If the official receiver does not require the insolvent’s records for further investigation purposes, he/she may pass them to another government department (e.g. H M Revenue and Customs (HMRC)) to facilitate their inquiries, provided the official receiver obtains written undertakings that:
Additionally, the official receiver should obtain a signed copy of the list of records handed over to the government department.
Notes: [s155(2)]
47.66 Access to accounting records in civil proceedings
The official receiver may exercise his/her discretion in allowing creditors/contributories access to accounting records in civil proceedings (see paragraph 47.64). Where access to the records is allowed, the official receiver should ensure:
A member of the official receiver's staff should be present at all times during inspection by the party concerned.
Where the liquidator or trustee is a party to civil proceedings and the official receiver has the records in his/her control, these should be released to the office holder immediately.
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