Mitchell & Anor v Al Jaber & Ors

Mitchell & Anor v Al Jaber & Ors

Section 236 examinations under the Insolvency Act 1986 are not judicial proceedings at which evidence is given by a witness for the purposes of witness immunity. Therefore, statements made by the Sheikh during such examinations and in related witness statements are not protected by witness immunity. The proposed amendments by the Liquidators have a real prospect of success, are sufficiently particularised, and may proceed, subject to minor clarifications.

Parties
Applicant: Greig William Alexander Mitchell; Applicant: Kenneth Melvin Krys; Respondent: Sheikh Mohamed Bin Issa Al Jaber; Respondent: Mashael Mohamed Al Jaber; Respondent: Amjad Salfiti; Respondent: JJW Hotels & Resorts UK Holdings Limited; Respondent: JJW Limited (Registered in Guernsey) (In Liquidation)
Jurisdiction
England and Wales
Judgment Date
21 April 2021
Procedural Posture
Insolvency/company Law – Amendment Application / Ruling on Application to Amend Pleadings During Ongoing Trial
Outcome
Application granted
Legal Topics
Witness Immunity, Fiduciary Duties of Directors, Liquidation Proceedings, Amendment of Pleadings, Reflective Loss, Unlawful Means Conspiracy
Insolvency Law Company Law Civil Procedure Witness Immunity Fiduciary Duties of Directors Liquidation Proceedings Amendment of Pleadings Reflective Loss +1 more

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Parties

Greig William Alexander Mitchell

Applicant

Kenneth Melvin Krys

Applicant

Sheikh Mohamed Bin Issa Al Jaber

Respondent

Mashael Mohamed Al Jaber

Respondent

Amjad Salfiti

Respondent

JJW Hotels & Resorts UK Holdings Limited

Respondent

JJW Limited (Registered in Guernsey) (In Liquidation)

Respondent

Procedural Posture

Insolvency/company Law – Amendment Application / Ruling on Application to Amend Pleadings During Ongoing Trial

Legal Issues

  1. 1 Does witness immunity apply to statements made by a director during section 236 examinations under the Insolvency Act 1986?
  2. 2 Are the proposed amendments to pleadings sufficiently particularised and do they have a real prospect of success?
  3. 3 Can new fiduciary duties be pleaded against a director post-liquidation under BVI and English law?

Ratio Decidendi

Section 236 examinations under the Insolvency Act 1986 are not judicial proceedings at which evidence is given by a witness for the purposes of witness immunity. Therefore, statements made by the Sheikh during such examinations and in related witness statements are not protected by witness immunity. The proposed amendments by the Liquidators have a real prospect of success, are sufficiently particularised, and may proceed, subject to minor clarifications.

Court Disposition

Application granted

Orders

  • Permission granted to amend the Re-Amended Points of Claim as set out in the Final Proposed Amendments, subject to replacing 'in specie' with 'themselves' in paragraphs 55Q, 82A, and 82B.
  • Liquidators to re-serve the amended pleading by 4pm on 23 April 2021.