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The entitlement of a liquidator to documents and information held by the liquidated company’s accountants

Alocasia Ltd sub nom Jackson & Anor v Baker Tilly & Anor [2014]

The High Court considered the reasonableness of an application by the liquidators of an insolvent company requiring the company's accountants to disclose further information on the company’s accounting procedures.

Facts

The liquidators had little information available in relation to the accounting procedures of the company, and they also had concerns in respect of several tax issues. The respondent firm of accountants audited the company's accounts during the relevant period before the insolvency. The liquidators considered that the accountants might have information concerning the company and its promotion, formation, business dealings, affairs or property that would assist them.

 The liquidators requested the information under s.235 & s.236 of the Insolvency Act 1986. The accountants refused the request, stating they had not advised on tax and contending that the relevant files held legally privileged information as well as confidential information in respect of other group companies.

The liquidators applied to the Court for production of the documents, serving of affidavits in respect of the company’s dealings, and attendance for examination under oath.

The issues the Court considered were whether: (1) the liquidators reasonably required the information sought in order to carry out their duties and (2) such disclosure was wholly unreasonable, unnecessary or oppressive to the accountants.

Findings

The application was granted. The Court found that the purpose of the liquidators’ application was to investigate the company’s affairs where they had limited information. The Court gave weight to the fact that the liquidators were experienced and had provided sworn testimony explaining the need for the information.

It was clear from the evidence that there was little information in relation to the company’s accounting procedures and the liquidators were therefore entitled to make further searches under their statutory duties.

The amount of work required in compiling the documents was not wholly unreasonable, unnecessary or oppressive. The accountants were a professional firm and the documents were organised and readily available to them.

The liquidators request was reasonable as they primarily sought accounting details and potential advice on tax matters. In order to ensure that the additional parties’ were adequately protected, a period of time was given for them to make submissions if they so wished. 

Comment

The court referred to the case of British & Commonwealth Holdings plc (Joint Administrators) v Spicer & Oppenheim (1993) which found that the power to make an order under s.236 extended to all documents which the administrator reasonably required to see in order to carry out his functions. Again, the reasonableness of the burden on the accountants was considered and found to be negligible.

Despite being an unreported decision, this latest case helps to further illustrate when accountants may be expected to provide information and documents to liquidators. It provides guidance for what should be considered when a request for information is made: whether the liquidator requires the documents in order to carry out their statutory duty and whether the disclosure is reasonable, necessary and not oppressive. 

Contact

For further information please contact Alexandra Cartwright, Senior Solicitor
on +44 (0)117 301 7865.

By Alexandra Cartwright

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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