22. Obtaining, releasing and formal disclosure of information
Guidance on obtaining information from third parties and the disclosure of information (including Legal Professional Privilege).
These FAQs are to assist official receivers in understanding the subject and should be read in conjunction with the more detailed guidance given in the main body of the Technical Manual chapter.
Why might I need to obtain information from third parties?
It would be almost impossible for the official receiver to carry out their duties without seeking and obtaining information from third parties. Many other organisations will hold useful information about an insolvent’s affairs and the official receiver should aim to gather that information effectively.
What problems may I encounter when attempting to obtain information?
Most organisations will freely provide the official receiver with information regarding the insolvent’s affairs but, occasionally, some organisations will refuse to pass over information on the grounds of confidentiality or data protection. Sometimes, the organisation does so thoughtfully and in consideration of the law, sometimes it is as a ‘knee-jerk’ reaction.
What is the difference between confidentiality and data protection? Aren’t they the same thing?
Data protection is, in its simplest terms, a statutory protection afforded to an individual’s personal data to limit the use that it can be put to, the extent to which it can be shared and to set rules regarding how it should be stored and protected.
Confidentiality, on the other hand, arises from common-law and describes the principle that where one person tells another person something and there is a reasonable expectation that that piece of information will not be disclosed, it should be kept confidential. It is about keeping secrets. Confidentiality, for example, would cover information relating to a trade secret, but data protection would not.
Necessarily, data protection and confidentiality over-lap (and are often confused) and where there has been a breach of one there is often a breach of the other.
What might be done when an organisation refuses to provide information on the grounds of data protection or confidentiality?
Data protection is a separate area of law and, therefore, if the refusal relates to an individual’s personal data on the grounds of data protection, the guidance elsewhere on the intranet should be referred to.
If the refusal is on the grounds of confidentiality, it will usually be sufficient to persuade the person holding the information that the duty of confidentiality has passed from the insolvent to the official receiver, as trustee or liquidator.
That said, it is often easier to have the person to whom the duty was formerly owed (the bankrupt, for example) provide a consent to the release of the information.
Does the duty of confidentiality pass to the official receiver in all cases?
No. Where the information relates to something personal to the bankrupt (such as medical records), the duty of confidentiality will continue to be owed to the bankrupt.
Similarly, where a director has consulted a professional in a personal capacity as well as in the position of director of the company, the professional may be able to correctly withhold release of information relating to the personal affairs – though it will sometimes be difficult to draw a distinction.
In both cases, it will almost inevitably be necessary to obtain the consent of the individual to whom the duty of confidentiality is owed.
What about legal professional privilege? Isn’t it possible for a solicitor to withhold information on those grounds?
Legal professional privilege has arisen through common-law to protect communication (and advice requests/provision) between a solicitor and their client.
Privilege is to do with the extent to which those communications are protected from disclosure in legal proceedings and has nothing (directly) to do with confidentiality. In particular, privilege cannot be invoked as a reason to refuse to pass information to the official receiver.
Privileged material obtained by the official receiver, as trustee, can only be used for a trustee function and cannot be shared with anybody not carrying out a function n that regard – even within the organisation.
What if, despite the official receiver’s best efforts, and following the guidance in the Technical Manual, the person with the information refuses to provide it?
Ultimately, if all else fails, the official receiver will need to consider enforcing co-operation through the courts, by means of a court order or a private examination.
Frequently asked questions - Releasing information to third parties
These FAQs are to assist official receivers in understanding the subject and should be read in conjunction with the more detailed guidance given in the main body of the Technical Manual chapter.
What information held by the official receiver might other parties ask to see?
Almost any information gathered by the official receiver in discharging their duties might be of interest to third parties – particularly those with law enforcement duties such as the police or HMRC.
What do I need to think about when considering releasing information?
The main considerations are the extent to which the information is confidential and/or the extent to which it is protected by the data protection legislation. You should also consider whether the material has attracted legal professional privilege (LPP).
So, I can refuse to provide information on these grounds?
Much of the information held by the official receiver will be confidential or consist of or contain an individual’s personal data, but that does not mean that there is a blanket prohibition of that information being released.
The official receiver will need to consider the public interest in releasing the information and, also, the law that allows the requestor to be provided with the information.
How do I find out if the requestor has a legal right to receive the information?
It will largely be a matter of putting the ball in their court and asking them to explain the legal basis on which the official receiver is obliged to provide the information. In most cases concerning law enforcement bodies there will be a specific statutory provision allowing/requiring disclosure.
What if there is no legal right for the requestor to receive the information?
The official receiver may still release the information if the public interest test is met.
What is the public interest test?
In essence this is where the official receiver balances the public good that will be done in releasing the information against the harm that will be done to the individual(s) if the information is released.
What sort of information should I obtain to assist in this balancing exercise?
The information that should be sought, from the requestor, would include precise details of what is being requested, the purpose for which the information is required, the harm that would be cause were the information not released and the authority of the person to request/use the information.
What if I am asked to release the PIQ and/or narrative statement?
There is a strong presumption that information in the PIQ and narrative statement will not be released to a third party, because the knowledge that such information is provided to the official receiver on a confidential basis makes it more likely that information will be provided freely and truthfully by the insolvent. This, obviously, assists the official receiver in the proper performance of their duties.
That said, where there is a statutory requirement to release these documents (or information contained therein), or a strong public interest reason, they may be released.
For protection, the official receiver may first wish to get the consent of the person who provided the PIQ/statement.
22.1 Introduction and overview of the chapter
This chapter provides guidance and information to assist official receivers when requested to provide details or papers from case files. This might be during the formal process of disclosure in relation to civil proceedings, or might be the more general form of disclosure where the request is made by a person with interest in the insolvent’s affairs.
The chapter also provides advice to assist the official receiver when seeking information regarding the insolvent’s affairs from a third party and there is a reluctance to provide that information.
22.2 Chapter does not cover enforcement issues
The chapter does not provide advice concerning disclosure in relation to disqualification, bankruptcy restriction, or prosecution proceedings being brought by the Secretary of State. Guidance in this regard can be found in the Enforcement Investigation Guide.
22.3 Confidentiality and disclosure – general
Organisations such as the official receiver, banks, doctors or accountants will hold information that is confidential in nature. For example, correspondence concerning the insolvent’s affairs or the information given in the PIQ and interview will generally be confidential and should not be disclosed.
The law, however, operates in such a way as to compel, or allow, organisations to disclose confidential information in certain circumstances, as follows:
- in relation to civil proceedings (disclosure)
- to assist an organisation to carry out a public function
- a data protection subject access request
22.4 Data protection and confidentiality
When dealing with a matter relating to the release of an individual’s personal information, whether as sender or recipient, the official receiver will also have to consider the provisions of the data protection legislation.
Where an individual’s personal data has been disclosed in breach of the data protection legislation, it is likely that a breach of confidentiality has also taken place, and visa-versa [Murray v Express Newspapers plc [2009] Ch 481].
22.5 Confidentiality – general
Confidential information is information held by a person that has a limited availability (that is, information that is not generally publically known) and is of a specific character (that is, not vague), whether or not expressed as confidential [Robb v Green [1985] 2 QB 315; Re Dalrymple’s Application [1957] RPC 449].
22.6 Categories of confidentiality
There are four broad categories of confidential information:
- trade secrets
- personal information
- journalistic, artistic and literary confidences, and
- government secrets
The official receiver is most likely to be concerned, as holder and requester, with the second in the list. In cases of personal information, a duty of confidence arises where the party subject to the duty knew or ought to have known that the other person could reasonably expect their privacy to be protected [Campbell v MGN Ltd [2004] 2 AC 457; Douglas v Hello! Ltd (No.3) [2003] EMLR 29].
22.7 Implied and express confidentiality
Within certain relationships, such as employee and employer, doctor and patient, married couples or solicitor and client there is an implied duty of confidence. See also below in relation to dealings between parties.
22.8 Legal professional privilege
Over time a principle of law has developed that communications between a client and their lawyer in relation to the seeking of advice or the preparation of litigation should remain secret. This is so as not to stifle a person’s ability to seek advice through fear that the information revealed will be used improperly, or against them. [Anderson v Bank of British Columbia (1876) 2 ChD 644 CA; Three Rivers District Council v Governor and Company of the Bank of England [2005] 1 AC 610; Balabel v Air India [1988] Ch 317].
Legal professional privilege is confined to the legal profession, but is applied broadly in scope within that profession to include not only barristers and solicitors, but in-house legal advisors, intellectual property agents, licensed conveyancers, legal executives and foreign legal advisors. [Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (no 2) [1972] 2 QB 102]
More detailed guidance to assist in identifying whether material is privileged can be found in the Enforcement Investigation Guide.
22.9 Difference between privilege and confidentiality
All privileged communications are confidential, but not all confidential communications are privileged. Confidential information can be used in court proceedings, although achieving its production will sometimes require a court order. By comparison, material that is privileged may not be deployed in court unless that privilege is waived.
22.10 Waiver of privilege
Privileged material can become non-privileged if the privilege in the material is waived by the client. Broadly, privilege can be waived in three ways:
- intentional of express waiver – where, for example, the document is intentionally used in court proceedings by the party owed privilege
- unintentional waiver – where a privileged document is sent by mistake. Where the mistake in doing so is obvious, then privilege has not been waived and the document should be returned immediately
- collateral waiver – where only a section of privileged material is provided and has the effect of waiving privilege in respect of the whole of the material document. The principle of a collateral waiver recognises the risk of a document being used out of context
Documents can be subject to a limited waiver where waiver is given only in respect of a limited set of circumstances – for example in relation to particular proceedings.
Only the ‘owner’ of the right of privilege can waive the right, not the lawyer or any other third party – including a trustee in bankruptcy. A bankrupt cannot be compelled to waive the right to privilege [Leeds and another v Lemos [2017] EWHC 1825 (Ch)].
22.11 Legal professional privilege not grounds to refuse to supply information
The ability of a lawyer to avoid providing information on the grounds of legal professional privilege will not apply where the official receiver is seeking information in the pursuit of their duties as trustee of liquidator and the bankrupt is required to deliver up all material, even that which would be privileged from disclosure [sections 131; 235; 288; 291].
22.12 Privileged material held by a trustee in bankruptcy
As outlined above, only the owner of a right of privilege can waive that right and the right does not pass to a bankrupt’s trustee in bankruptcy.
A trustee in bankruptcy can deploy privileged material against a bankrupt (where the right of privilege is owed to the bankrupt) but may not otherwise use privileged material in a manner that would amount to a waiver of privilege, for example in BRO proceedings or for criminal prosecution. Similarly, the privileged material may not be disclosed to anyone not carrying out a function related to the administration of the bankruptcy estate. [Avonwick Holdings Ltd and others v Shlosberg [2016] EWCA Civ 1138; Re Lemos; Leeds and another (in their capacity as the joint trustees in bankruptcy of the estate of Lemos) v Lemos and others [2017] EWHC 1825 (Ch), [2017] All ER (D) 157 (Jul)].
22.13 Privileged material held by a liquidator
Where the company is the sole owner of the privilege, the liquidator may waive the company’s privilege. Care must be taken to ensure that the privilege in any material belongs solely to the company. It is possible that the liquidator will encounter material to which the company and its directors enjoy joint privilege, for example where advice is given to the directors on both the company’s position and their personal position.
22.14 Privileged material to be stored away from the case file
To avoid the risk of privileged material being seen by those not entitled to see it, the material should be stored away from the case file, with a file note to the effect that privileged matter has been stored in this way – but with no reference to the nature or detail of the documents.
Ideally, the material should be scanned so that it can be stored electronically, with the originals destroyed. A set of folders have been set up in Wisdom into which the material must be placed, having been appropriately named to aid future identification. The folders are located on Wisdom in the Official Receiver Services area.
They have been set up in such a way that they can be accessed by only the Official Receiver personally and the Local Records Officer for the Senior Official Receiver’s Office.
If the material cannot be stored electronically, it should be stored within the office in a suitably locked cupboard, to which access is restricted.
22.15 Public interest immunity
Public interest immunity is essentially a type of confidentiality, though it also has some bearing on litigation. It is the principle, founded on public policy and recognised by Parliament [Crown Proceedings Act 1947 section 28(1)] that documents may be withheld or the answer to a question refused on the grounds that release would damage the public interest [Conway v Rimmer [1968] AC 910].
Public interest immunity can only be claimed by the Crown and not by the individual to whom the relevant document relates [Anthony v Anthony (1919) 35 TLR 559].
It is unlikely that such immunity will be used by or against the official receiver.
22.16 Privilege against self-incrimination
The privilege against self-incrimination in civil matters is limited to the provision of information that would open the individual to action for criminal offences and penalties under the laws of the UK (including EU laws having effect in the UK) [Civil Evidence Act 1968, section 14].
A director or bankrupt cannot rely on the privilege against self-incrimination to avoid providing the official receiver with information regarding the company’s/their affairs [Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 CA].
22.17 Third party refusal to provide information on the grounds of confidentiality
This section provides guidance and information to assist the official receiver when is seeking information from third parties and the provision of that information is refused on the grounds of confidentiality.
22.18 Obtaining consent to release of information
On questions of confidentiality, it is generally simplest to arrange for the person to whom the duty of confidentiality is owed to provide a general or specific consent (waiving the duty) which may then be provided by the official receiver to the person from whom the information is sought.
This, of course, assumes that such co-operation can be obtained.
22.19 Duty of confidentiality owed to insolvent passes to official receiver - companies
Where a professional such as a solicitor or accountant (or any other person claiming a duty of confidentiality) has been instructed by the company the duty of confidentiality is owed to the company (not the directors or shareholders). The official receiver, as liquidator, can therefore authorise disclosure to them.
The position is more complicated if the professional considers they also acted for the directors personally (rather than as officer of the company). The nature of the information sought should assist in deciding who the client was [Buttes Gas and Oil Co v Hammer [1982] AC 888]. Where information is refused on these grounds it may be possible to arrange for the directors to consent to the release of the information.
22.20 Duty of confidentiality owed to insolvent passes to official receiver - bankruptcy
Where a professional such as a solicitor or accountant (or any other person claiming a duty of confidentiality) has been instructed by the bankrupt in relation to property matters (in the widest definition of this term [section 436]). the duty of confidentiality transfers to the official receiver, as trustee. The official receiver can therefore waive this confidentiality and authorise disclosure to them.
Where information is refused on these grounds it may be possible to arrange for the bankrupt to consent to the release of the information.
Personal information, such as information of a medical nature, will remain confidential and might only be obtained with the consent of the bankrupt or a court order.
22.21 Obtaining information from solicitors
Once the question of a duty of confidentiality has been avoided (or the director’s or bankrupt’s consent given), the official receiver should obtain all information and documentation relevant to the company and to the property of the bankrupt.
In particular, the solicitor should pass over documents prepared for the insolvent (for example instructions and advice and copies of correspondence with third parties). This is subject to any valid lien over documents of title.
The solicitor’s own papers relating to the insolvent remain the solicitor’s property.
Where dealing with solicitors see also the advice above regarding Legal Professional Privilege.
22.22 Obtaining information from licensed conveyancers
Once the question of a duty of confidentiality has been avoided (or the director’s or bankrupt’s consent given), the official receiver should obtain all information and documentation relevant to the company and to the property of the bankrupt. It is likely that the vast majority of information/documents held by a licensed conveyancer will relate to property matters.
The Council of Licensed Conveyancers has advised its members, when passing over a conveyancing file, to redact ‘personal’ information from the file and to explain what documents, and the nature of those documents, have been removed.
22.23 Obtaining information from accountants or auditors
Once the question of a duty of confidentiality has been avoided (or the director’s or bankrupt’s consent given), the official receiver should obtain all information, documentation and book and papers relevant to the company and to the property of the bankrupt. It is likely that the vast majority of information/documents held by an accountant or auditor will relate to non-personal matters.
22.24 Obtaining information from banks
A bank’s duty of confidentiality to its customers is not absolute and there are circumstances in which a bank may disclose information regarding a customer’s affairs. [Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; Christophi v Barclays Bank plc [2000] 1 WLR 937]. The circumstances most likely to arise in relation to an insolvency matter are:
- where the bank is compelled by law, or
- where the bank has a public duty to disclose
Generally, a bank will be happy to provide information regarding the insolvent’s affairs to the official receiver, but if the official receiver is dealing with a foreign bank it is likely that the (former) account holder’s consent will be required.
Where information regarding third parties is being sought, and in the absence of the customer’s authorisation, the official receiver should attempt to persuade the bank to disclose by the threat of court action or public duty, as above. Otherwise, it will be necessary to enforce co-operation.
22.25 Obtaining information from HMRC – general
HMRC has a strict duty to maintain the confidentiality of the information it holds about its customers. This long established and fundamental principle, which is supported by case-law, is viewed by HMRC as being vital in helping to ensure the trust and voluntary compliance of its customers.
Requests for information from the official receiver to HMRC should therefore be limited in scope and process to that allowed under the Partnership Agreement between HMRC and The Insolvency Service.
The standard tax disclosure authority [Form TINDIS] should be obtained from the bankrupt in every case.
22.26 Obtaining information from Live Investigations
Whilst the provision of information obtained in the investigation of a live company is a criminal offence, Live (company) Investigations, acting on behalf of the Secretary of State, are allowed to pass relevant information to the official receiver for the purpose of enabling or allowing them to discharge their functions under the insolvency legislation [Companies Act 1985 section 447].
22.27 Enforcement of a duty to provide information
The official receiver may consider enforcing compliance when unable to persuade the third party to provide the requested information. In many cases, the threat of such action will suffice, but occasionally the holder of the information will only release it on the order of the court to protect them against a claim for breach of confidence.
In such situations, the following methods of enforcement may be considered:
- an order of the court under a power to apply for directions, or
- a private examination
22.28 Release of information to third parties – general
Much of the information gathered by the official receiver during enquiries into the affairs of the insolvent will be confidential in nature, especially in respect of bankruptcies. Although there is no limit in the Act to which information obtained under compulsion can be put, the PIQ and narrative statement, in particular, are likely to contain information of which the majority is confidential.
The official receiver should also consider the guidance in this chapter concerning the handing and disclosure of material which has attracted legal professional privilege (LPP).
This section will be relevant to official receivers if they are releasing information proactively (to support their own statutory functions) or reactively (when asked to do so by some other authority).
22.29 Considerations when releasing information (Freedom of Information Act 2000)
Any written request for information held by the official receiver from a third party will be covered by Freedom of Information Act 2000 (FOI). It should be noted that where the official receiver is holding the information requested solely by virtue of their position as statutory office holder, FOI does not apply).
The official receiver is acting as a statutory office holder when provisional liquidator, liquidator, interim receiver, trustee, and also if carrying out an investigation (regardless of whether still liquidator or trustee).
It follows, therefore, that all files created by official receivers when acting in any of the above capacities are excluded from the provisions of FOI and, where the request is a valid FOI request, the official receiver will have to issue a refusal notice.
22.30 Considerations when releasing information (data protection)
When releasing information, the official receiver should do so with care and only after considering the effect of the data protection legislation.
Against this, the official receiver should take a practical approach so that where for example, it is possible to obtain the consent of the person to whom the duty of confidentiality is owed, this should be done rather than forcing the requestor of the information down the route of court action to obtain the information.
22.31 Onward release of information obtained from other third parties
Where the official receiver is requested to release information or documents that were originally obtained from other third parties, they may still take the position of balancing the public interest, but it is likely to be more appropriate to ask the enquirer to direct their request on the original source of the information or, at least, to provide that person’s consent.
It should be noted that there are criminal penalties for the onward release of certain types of information, such as that obtained from the Financial Conduct Authority [Financial Services and Markets 2000, section 352],
22.32 Formal disclosure of information in relation to legal proceedings
If the official receiver is involved in the formal process of disclosure in connection with legal proceedings or a witness summons is received, the guidance below should be followed, rather than the guidance in this section.
22.33 Release of confidential information allowed where it is in the public interest or required by statute
The courts will allow a breach of confidence only where it is in the public interest to do so. In each case the official receiver will be required to carry out a balancing exercise to establish whether the public interest is better served by releasing the information or by keeping it confidential.
22.34 Deciding whether there is a public interest in releasing information
In deciding whether there is a public interest in releasing information, the official receiver will need to judge what is reasonable to disclose to meet the stated purpose in the request, also taking into account the seriousness of the reason for the request and the effect of not complying with it. Where specific information is requested to assist in the investigation of a criminal matter, it is likely that the public interest test will be met.
The official receiver will, in particular, be obliged to release the information where there is a statutory requirement to do so.
The official receiver should keep in mind that where a request for information is wide-reaching (looking like what is known as a ‘fishing expedition’), they are not obliged to disclose all or any of the information.
22.35 Information to be sought to assist in balancing the public interest
Where an official receiver receives a request to release confidential information held in a case file (which requests will generally come from regulatory authorities, including the Police), they should obtain details, in writing (which can include e-mail), of the following:
- precise details of the information being requested
- precise details of the purpose or purposes for which the information is required, how it may be used and to who it may further be disclosed to
- precise details of the legislative authority for the request or data protection exemption (in respect of an individual’s personal data) the requestor is seeking to engage
- details of the prejudice that may be caused to the stated purpose if the requestor is not provided with the requested information
- the requesting person’s position or authority in requesting the information
- the response will assist the official receiver in balancing the public interest and assessing any obligation to release the information
22.36 Release of the narrative statement and PIQ
The narrative statement and PIQ are obtained under compulsion [sections 235; 291] and will contain confidential information including an individual’s personal data. There is a strong presumption that this confidentiality should be observed, because it facilitates and promotes the proper performance of the duties of the official receiver.
The narrative statement and PIQ, and information contained therein should only be released where there is a strong public interest or statutory requirement to do so or where the person giving the statement/information has given their consent, in writing, to the general or specific release of the statement/information. In particular, it has been held that the official receiver may release statements obtained under compulsory powers to aid the investigations of a prosecuting authority, with or without consent [R v Brady (Paul Clement) [2004] 1 WLR 3240].
See chapter 17 regarding the provision of a copy statement/PIQ to an interviewee.
22.37 Release of private examination transcript
Information obtained pursuant to a private examination is sometimes recorded in a transcript. Unless the court orders otherwise, inspection of the transcript is limited to the applicant for the private examination and those who would have been able to apply for an examination1 (essentially, the office-holder) [rule 12.20].
In this regard, the court may order release of the information if it will assist in the winding-up of the company, or it is otherwise in the interests of justice in a particular case, but not for any other reason [Barlow Clowes Gilt Managers Ltd [1992] Ch 208; Re Arrows (No 4) [1994] 3 WLR 656].
If the official receiver is under a statutory duty to release the transcript then it should be released [Re Arrows (No 4) [1994] 3 WLR 656; Re Trachtenburg [1993] BCC 492; R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1]
22.38 Release of information to the Financial Services Compensation Scheme
Where a request is received from the Financial Services Compensation Scheme (FSCS) acting under its duty to compensate investors, the official receiver must permit a person authorised by the FSCS to inspect documentation of the insolvent for the purposes of establishing1:
- the identity of persons to whom the FSCS may be liable to make a payment in accordance with the compensation scheme; or
- the amount of any payment which the FSCS may be liable to make [Financial Services and Markets Act 2000, section 224]
It may be that some of the documentation is confidential in that it relates to the financial affairs of clients of the insolvent (rather than simply being a client list, for example). If so, the official receiver should ensure that the FSCS provides copies of consents supplied by the affected individuals before making available the requested information, unless the public interest in disclosing is strong.
Consequently, the official receiver should comply with reasonable requests from the FSCS. This would include taking of extracts and copying documents [Financial Services and Markets Act 2000 section 224(2)].
22.39 Release of information obtained in an investigation of a live company
It is a criminal offence to disclose information obtained in the investigation of a live company unless it is for the purpose of assisting specified bodies in carrying out regulatory or statutory functions [Companies Act 1985 section 449].
Where the official receiver holds information originally obtained from Live Investigations, and such information is requested by a third-party they may consider releasing that information if they are satisfied that the requesting party is one of these specified bodies [Companies Act 1985 schedule 15C], but, if in doubt, it is likely to be more appropriate to forward the request to Live Investigations so that can provide the information, as appropriate.
22.40 Release of information to bodies with a regulatory function
Occasionally the official receiver may be requested to release information to a professional body with a regulatory function, for example the Law Society or the Association of Chartered Certified Accountants (‘ACCA’).
Such information should only be released when the public interest test outweighs that in maintaining the confidentiality of the information (see paragraph 22.31).
22.41 Release of information to the media
If a representative of the press (including on-line publications), radio or television contacts the official receiver, or a member of staff, the Press Office should be consulted before any information (confidential or not) is released.
22.42 Release of information to creditors and contributories
Notwithstanding a creditor’s or contributory’s right to receive information regarding the insolvent’s affairs, the official receiver may provide a creditor or contributory, or their authorised representative, with the following information:
- confirmation of the existence of proceedings
- whether or not a meeting of creditors is to be held and, if so, the date of the meeting
- the general nature and value of the assets, and
- the amounts of the preferential and other liabilities in round figures
22.43 Release of information in relation to third party insurance claim
It is possible for a person to sue a company or individual in insolvency as a means to secure a payment from the insolvent’s insurers (see chapter 61).
Where the official receiver is considering releasing information in relation to such proceedings, they should refer to the guidance in that chapter.
22.44 Release of information relating to a person’s gender history
The legislation provides that it is an offence, where a person has had a new gender legally recognised, to disclose information gained in an official capacity about a person’s application for gender recognition or about the gender history of a successful applicant (this is known as ‘protected information’) [Gender Recognition Act 2004, section 22].
This is subject to certain exemptions and, in particular, an offence is not committed where [The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No. 2) Order 2005]:
- the release is made by or to the official receiver (or an insolvency practitioner); and
- the release is necessary for the official receiver to perform functions under the insolvency legislation
The official receiver will therefore need to carry out a balancing of the competing interests and, in particular, may need to consider the significance of the time elapsed since the change of gender. The provisions of the DPA will also need to be considered when considering disclosure to the third party.
22.45 Presumption that records will not be made available
There is a presumption that the insolvent’s records will not be made available for inspection unless in the following circumstances:
- where required to do so during the process of formal disclosure in civil proceedings
- where required to do so by the court
- to assist a bankrupt/director in relation to the insolvency
22.46 Power to refuse access to records on grounds of confidentiality or personal safety
Where the official receiver considers that a document forming part of the records is confidential in nature or is of such a nature that its disclosure would be prejudicial to the proceedings or might reasonably be expected to lead to violence against any person, they may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it [rule 1.58(1)].
Where there is such a refusal, the person wishing to inspect it may apply to court for that refusal to be overruled [rule 1.58(3)].
22.47 Right to copy documents
Where a person has the right under the Act or Rules to inspect the books and papers of the insolvent, they also have the right to be provided with copies1 on payment of the appropriate fee, which amount is specified in the relevant [rules 12.40; 12.39(7)].
22.48 Member of official receiver’s staff to be present when records are inspected
It should generally be the case that a member of the official receiver’s staff should remain present when the records of the insolvent are being inspected by a director, bankrupt, creditor or contributory.
Where the records are being inspected by another Government department, or by the appointed insolvency practitioner, it need not be necessary for a member of staff to be present
22.49 Allowing company officers access to company records
Assuming that the official receiver is satisfied that a company officer requires access to the company’s records in connection with matters relating to the insolvency (including to assist in completing a tax return) then it should be allowed.
Where inspection is allowed, it should be limited to access to the records relating to the period that the officer in question was in post.
Access may also be allowed, in the terms described above, to a person acting on the specific, written, authority of the company officer.
22.50 Allowing bankrupts to access records
Assuming that the official receiver is satisfied that a bankrupt requires access to their own records in connection with matters relating to the insolvency (including to assist in completing a tax return) then it should be allowed.
Access may also be allowed, in the terms described above, to a person acting on the specific, written, authority of the bankrupt.
22.51 Allowing creditors and contributories access to the insolvent’s records
On a strict interpretation of the law the official receiver may require a creditor (or contributory) to obtain a court order before are allowed access to the company’s records. The official receiver as liquidator may exercise a discretion to permit inspection to non-privileged, non-confidential company records to a creditor or contributory where that party is willing to reimburse the official receiver for any expense or where some benefit will accrue by granting permission [ACLI Metals (London) Ltd (AML Holdings Inc v Auger) (1989) 5 BCC 749].
In bankruptcy cases, there is no provision to allow the creditor to seek an order of the court so, in deciding whether to grant permission, the official receiver should consider the extent of the willingness of the creditor to reimburse expenses (such as the costs of retrieving papers from storage), any benefit to the bankruptcy estate which may accrue and whether the bankrupt has given their permission (which is indicative but not compulsory).
22.52 Access to accounting records by creditors or contributories in relation to unconnected legal proceedings
The official receiver may exercise discretion in allowing creditors/contributories access to accounting records in legal proceedings not directly connected to the insolvency proceedings. Where access to the records is allowed, it should be on the following terms:
- all parties to the proceedings should be allowed equal access;
- no costs will be incurred by the estate or by the official receiver personally;
- no original documents will be removed; and
- no work has to be done by the official receiver.
22.53 Court order for creditor or contributory to access records – company only
As referred to above, creditors or contributories may, on a strict interpretation of the law, only access records with the permission of the court [section 155]. The court will grant permission in cases where the request is connected to the liquidation or in other appropriate cases (where, for example, the creditor needs to obtain information to defend a claim under a guarantee) [Re North Brazilian Sugar Factories (1887) 37 ChD 83].
The order of the court will not assist the creditor or contributory where the records are not held by the company [Re DPR Futures Ltd (1989) 5 BCC 603].
22.54 Statutory rights of Government departments to inspect records
Where the official receiver is satisfied that a Government department has a statutory right to inspect the records of the insolvent, inspection should normally be allowed. The department can be asked to set out its power to inspect the records, where there is doubt.
If, in these circumstances, the official receiver no longer requires to retain possession of the records, they may pass them to the other department to facilitate their enquiries on receipt of an undertaking that:
- the records will be returned to the official receiver on demand; and
- the records will not be used in any proceedings without the official receiver being first informed
Additionally, the official receiver should obtain a signed copy of the list of records handed over to the other department.
Where the request originates from HMRC, the additional guidance in the Partnership Agreement should be followed.
22.55 Disclosure – general
Disclosure is the process by which parties to civil (court) proceedings reveal the existence of and, where necessary, produce documentation relating to the proceedings.
In summary, disclosure is the process by which the parties:
- inform each other of the existence of relevant material, and
- arrange inspection of any relevant material, or
- claim some right or duty to withhold inspection
22.56 Disclosure generally dealt with by appointed solicitors
Generally speaking, and apart from situations where the official receiver is not party to the proceedings, disclosure will be overseen by the solicitor appointed by the official receiver in the litigation and they should act following the solicitor’s advice.
This section is therefore an overview of the disclosure process.
22.57 Process for disclosure
Not less than 14 days before the first case management conference (which is a meeting between the parties and the court to decide on how the case will managed) each party must file and serve a report which describes briefly what relevant documents exist, where are located and the estimated costs of standard disclosure [Civil Procedure Rules, Part 31, paragraph 31.5(3)].
The court will then decide which of the orders relating to disclosure may be made, having regard to the need to limit disclosure to that which is necessary to deal with the case justly [Civil Procedure Rules, Part 31, paragraph 31.5(7)].
22.58 Standard disclosure
Where the court orders standard disclosure, the official receiver will be required to disclose only:
- the documents on which they rely; and
- the documents which –
- adversely affect their own case
- adversely affect another party’s case; or
- support another party’s case; and
- the documents which they are required to disclose by a relevant practice direction
22.59 Standard disclosure process
The standard disclosure process requires that each party must, after a reasonable search [Civil Procedure Rules, Part 31, paragraph 31.7], make and serve on every other party, a list which must identify the documents in a convenient order and manner as concisely as possible. The list must indicate those documents in respect of which the party claims a right or duty to withhold inspection and what has happened to those documents no longer in the party’s control [Civil Procedure Rules, Part 31, paragraph 31.10].
22.60 Duty of disclosure is limited to documents in control of official receiver
The official receiver’s duty to disclose documents is limited to documents that are, or have been, under their control [Civil Procedure Rules, Part 31, paragraph 31.8(1)], which includes documents of which they have or had a right to possession [Civil Procedure Rules, Part 31, paragraph 31.8(2)(b)].
22.61 Categories of documents liable to disclosure
For the purposes of the rules relating to disclosure, a ‘document’ is anything in which information is recorded, includes electronic documents and databases [Civil Procedure Rules, Part 31, paragraph 31.4].
22.62 Right to inspect a disclosed document
A party to whom the existence of a document has been disclosed has the right to inspect that document unless:
- the document is no longer in the control of the person who disclosed it
- there is a right or duty to withhold inspection, or
- that inspection would be disproportionate to the issues in the case
[Civil Procedure Rules, Part 31, paragraph 31.3].
22.63 Disclosure a continuing duty
The duty to disclose continues throughout the proceedings so where any relevant documents come to light after the initial stages should be notified to every other party, normally as a supplemental list [Civil Procedure Rules, Part 31, paragraph 31.11].
22.64 Consequence of failure to disclose documents or permit inspection
A party may not rely on any document which they fail to disclose or in respect of which they fail to permit inspection unless the court gives permission [Civil Procedure Rules, Part 31, paragraph 31.21].
22.65 Privilege against disclosure
Certain documents are privileged against disclosure and/or inspection. In very simple terms, this means that communications between a lawyer and their client that relate to legal advice and the obtaining of legal advice are not liable to be disclosed or inspected. This is known as legal professional privilege.
The privilege ‘belongs’ to the client (not the lawyer) and may only be waived by the client [Knight v Marquess of Waterford (1836) 2 Y&C Ex 22; Kershaw v Whelan [1996] 2 All ER 404; Anderson v Bank of British Columbia (1876) 2 ChD 644].
The rules relating to legal professional privilege are complex and the official receiver will be guided by their solicitors on this matter. There is guidance above on the extent to which privileged documents may be disclosed outside of legal proceedings.
22.66 Disclosure against a person not a party
The court may order disclosure against a person who is not a party to the proceedings. The court may only make such an order where the documents are likely to support or adversely affect the case of one of the parties and disclosure is necessary to fairly dispose of justice or save costs. The order must specify what is to be disclosed [Civil Procedure Rules, Part 31, paragraph 31.17].
Where the official receiver is the respondent to such an order, they should comply as fully as possible.
22.67 Disclosure and the public interest
A person may apply for an order permitting them to withhold disclosure or inspection of a document on the ground that disclosure would damage the public interest [Civil Procedure Rules, Part 31, paragraph 31.19].
An application may also be made for public interest immunity to avoid the disclosure/inspection of documents [Conway v Rimmer [1968] AC 910].
It is extremely unlikely that the official receiver, in their role as liquidator, receiver and manager or trustee would seek to avoid disclosure in this way, though the advice of the Senior Official Receiver may be sought if it is considered that there is a good reason to act in this way.
22.68 Disclosure and confidentiality
Merely because a document is confidential does not mean that it does not have to be disclosed, but confidentiality may be a relevant consideration when deciding on refusal to disclose on public interest grounds [Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405].
22.69 Disclosure of private examination transcript
Information obtained pursuant to a private examination is sometimes recorded in a transcript. It has been held that such a transcript attracts legal professional privilege [Re Dubai Bank Ltd v Galadari & others [1989] 5 BCC 722].
22.70 Disclosure of a statement made in the insolvency proceedings
Any statement (of affairs, for example) made in insolvency proceedings (including one made in connection with a private examination) may be used in any legal proceedings (whether or not under the Act) brought against the person making, or concurring in the making of, the statement, but it may not be used in proceedings against anyone else [section 433; Re Norwich [1884] LR 27 ChD 515].
22.71 Disclosure of documents relating to criminal investigation
Guidance in the Enforcement Investigation Guide should be referred to where disclosure is in relation to criminal proceedings.
Occasionally, however, the official receiver will be involved in civil disclosure where they hold on file information relating to a criminal investigation. Care should be taken in this regard and the official receiver should seek the guidance of Enforcement Technical before disclosing any documents.
22.72 Disclosure where right of action assigned to bankrupt
In cases where a right of action has been assigned to a bankrupt, the official receiver should generally assist with disclosure, as appropriate, subject to any concerns regarding privilege or confidentiality.
22.73 Summons - general
A witness summons is prepared by a party to legal proceedings and endorsed by the court with jurisdiction over those proceedings. The purpose of a witness summons is to compel the production of admissible evidence.
There are two basic types of witness summons:
- a witness summons which orders someone to attend at the court and give evidence in the proceedings; and
- one which orders the person named in it to attend and produce documents specified in the summons at that hearing
22.74 Summons not to be used as general disclosure exercise
A witness summons cannot be used as a general disclosure exercise, and must specify the particular documents required.
22.75 Receipt of a summons that does not specify documents required
Where the official receiver receives a summons that does not specify the documents required, they should request that the party specify the documents required. Failure to do so may mean that the official receiver has good grounds to have the witness summons set aside.
22.76 Setting aside a witness summons
As soon as the official receiver is served with any witness summons they should consider whether or not an application should be made for the witness summons to be set aside - seeking legal advice as required.
In civil proceedings the official receiver will usually be faced with a witness summons which requires them to attend, give evidence, and to produce specified documents. The summons may be set aside where:
- it is oppressive, that is, it would be burdensome or harsh for the official receiver to comply with
- it represents a ‘fishing expedition’ - that is, the litigant is requesting information simply in the general hope that something will turn up to assist their case
- it fails to give adequate details of the documents required
- the documents are privileged from production; or
- the documents are not in the official receiver’s possession or control
22.77 Witness summons for production – official receiver’s file
It is possible that the official receiver may receive a summons to produce the case file during the course of civil proceedings. If so (and subject to the guidance elsewhere in this section), they should attend court to produce the file and to explain their position with regard to the information and documents on the file.
If the file is electronic, the official receiver should respond to the summons in the form of a report setting out, generally, the contents of the file and the extent to which they believe those contents may be produced.
Where the official receiver holds confidential information on the file and has any doubt as to whether the document/information should be disclosed, they should withhold the relevant information and draw their concerns to the court, who will decide on disclosure.
22.78 Witness summons to produce original documents following handover to insolvency practitioner
When an insolvency practitioner receives a witness summons and tenders secondary evidence (that is, the photocopies supplied to them on handover), it may be necessary to account for the absence of the original. In this case the insolvency practitioner will inform the court that the official receiver has the originals and, in that situation, it may then be appropriate for the official receiver to be served with a witness summons to produce the originals.
22.79 Witness summons for production – accounting records
The official receiver may be required to produce the insolvent’s records on receipt of a witness summons issued at the instance of any party to civil proceedings (including a director or the bankrupt). It will be for the parties to the proceedings (and not for the official receiver or a member of their staff) to give evidence in these circumstances.
22.80 Witness summons relating to overseas proceedings
It is possible for a court in a foreign jurisdiction to seek the assistance of the High Court in obtaining evidence and securing the attendance of witnesses [Evidence (Proceedings in Other Jurisdictions) Act 1975].
22.81 Costs in complying with a witness summons
The party issuing the witness summons should be responsible for the reasonable costs of the official receiver to attend court and produce the documents required. This is particularly applicable in a civil case which has no direct bearing on the administration of the insolvency.
JH Shannon v Country Casuals Holdings plc [Times June 16 1997] held that a summonsed witness is entitled to their costs incurred in complying with the summons, and that was not limited to receiving conduct money (money paid to the witness to cover expenses such as the costs of getting to/from the trial and compensation for time spent) only. Such costs could cover the taking of legal advice, where it is reasonable to do so.
These costs, if recovered, by the official receiver should generally be paid into the estate account with the expenses being repaid from that account.