Al Jaber & Ors v Mitchell & Ors [2021] EWCA Civ 1190 (30 July 2021)

Al Jaber & Ors v Mitchell & Ors [2021] EWCA Civ 1190 (30 July 2021)

Statements made by an examinee in a private examination under section 236 of the Insolvency Act 1986 do not attract witness immunity from suit. Section 236 examinations are investigative, not judicial, in nature; the examinee is not a witness in the ordinary sense; and the policy justifications for immunity do not apply. Therefore, civil claims based on such statements are not barred by immunity.

Citation
[2021] EWCA Civ 1190
Parties
Appellants: Al Jaber and Others; Respondents: Mitchell and Others
Jurisdiction
England and Wales
Judgment Date
30 July 2021
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Witness Immunity, Section 236 Insolvency Act 1986, Liquidator Powers, Judicial Proceedings Privilege
Insolvency Law Civil Procedure Witness Immunity Section 236 Insolvency Act 1986 Liquidator Powers Judicial Proceedings Privilege

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Parties

Al Jaber and Others

Appellants

Mitchell and Others

Respondents

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Does witness immunity from suit apply to statements made by an examinee in a private examination under section 236 of the Insolvency Act 1986?
  2. 2 Are statements made under oath and by witness statement in section 236 examinations protected from civil claims for breach of duty or conspiracy?

Ratio Decidendi

Statements made by an examinee in a private examination under section 236 of the Insolvency Act 1986 do not attract witness immunity from suit. Section 236 examinations are investigative, not judicial, in nature; the examinee is not a witness in the ordinary sense; and the policy justifications for immunity do not apply. Therefore, civil claims based on such statements are not barred by immunity.

Court Disposition

Appeal dismissed

Orders

  • Permission granted to Liquidators to re-re-amend their Re-Amended Points of Claim to include claims based on statements made by the Sheikh in section 236 examinations.