Office holders Powers part 8
The application for permission to appeal (as referred to in the previous article in this series) was in a case called In re Rottmann (a Bankrupt). As appears from the headnote, this case actually concerned a bankrupt but it is relevant to examinations generally including those in the liquidation of companies. The bankrupt, Mr Rottmann, was facing a public examination pursuant to section 290 of the Insolvency Act 1986. This is the equivalent in individual bankruptcy of section 133 public examinations in relation to the liquidation of companies. There are some differences. Only the bankrupt can be summoned to appear for a public examination, and only the official receiver can summon him, whether on his own decision or because notice is given by one of the bankrupt creditors with at least one half of the creditors in value (including the person giving the notice) comparing with the giving of the notice. Previously these examinations occurred save where the bankrupt was suffering from a physical or mental disability (see section 15 of the Bankruptcy Act 1914) but now it is a matter for the official receiver, whether or not prompted by creditors.
If a public examination takes place a bankrupt cannot refuse to answer questions on the grounds of privilege against self-incrimination (see Officeholders Powers part 7). At the same time refusing to answer questions within the scope of the public examination will amount to a contempt of court by the bankrupt for which he can be imprisoned. Therefore to some extent during a public examination the bankrupt could regard himself as damned if he does, damned if he doesn't.
As well as facing the public examination, Mr Rottmann was also facing criminal proceedings in Germany. Mr Rottmann prayed in aid the Saunders case referred to in Officeholders Powers part 7, ( Saunders v United Kingdom (Application No 19187/91, (1996) 23 EHRR 313). His argument was that the use or possible use in foreign criminal proceedings of the transcript of his public examination would involve prejudice both to his right to a fair trial and his right not to incriminate himself. What Mr Rottmann sought was the suspension of any examination.
Rule 6.175 of the Insolvency Rules 1986 sets out the procedure to be followed at the hearing of the public examination and amongst other things includes a power to adjourn. What the Judge at first instance did in response to the case was suspend the public examination but order a private examination to be held. The bankrupt sought to appeal against this on the basis that holding the examination in private was not a sufficient protection so as to avoid an infringement of his aforesaid rights.
The Court of Appeal was not prepared to give permission to appeal on the basis that there was no real prospect for success. The court below had exercised a discretion and in doing so had to balance two competing rights, one the right of the bankrupt not to incriminate himself and the other the rights of the creditors to obtain information about the bankrupt’s affairs. Moreover since Germany, where the criminal proceedings would take place, was also a signatory to the European Convention on Human Rights , one could expect the German courts to carefully consider any objection to the use in court of any material obtained from the private examination in the bankruptcy proceedings. In the circumstances permission to appeal was refused and the order for the private examination stood.