Akers & Anor v Deutsche Bank AG [2012] EWHC 244 (Ch) (01 February 2012)

Akers & Anor v Deutsche Bank AG [2012] EWHC 244 (Ch) (01 February 2012)

The joint liquidators, as foreign representatives recognised under the Cross-Border Insolvency Regulations 2006, are entitled to seek disclosure orders under section 236 of the Insolvency Act 1986 via Article 21(1)(g) of the UNCITRAL Model Law. The court's power is not limited by Article 21(1)(d). The documents sought are reasonably required for the liquidators' investigation, and the burden on Deutsche Bank is not unreasonable. Disclosure should be ordered, subject to reasonable restrictions as to scope, costs to be addressed after compliance, and an express confidentiality undertaking by the liquidators.

Citation
[2012] EWHC 244 (Ch)
Parties
Applicant: Stephen John Akers; Applicant: Mark McDonald; Respondent: Deutsche Bank AG
Jurisdiction
England and Wales
Judgment Date
01 February 2012
Procedural Posture
Application Under Cross Border Insolvency Regulations 2006 / Judgment on Application for Disclosure Orders
Outcome
Application granted in substantial part, subject to conditions.
Legal Topics
Disclosure of Documents, Section 236 Insolvency Act 1986, UNCITRAL Model Law Article 21, Liquidators' Powers, Market Manipulation Allegations
Insolvency Cross Border Insolvency Banking Law Disclosure of Documents Section 236 Insolvency Act 1986 UNCITRAL Model Law Article 21 Liquidators' Powers Market Manipulation Allegations

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Parties

Stephen John Akers

Applicant

Mark McDonald

Applicant

Deutsche Bank AG

Respondent

Procedural Posture

Application Under Cross Border Insolvency Regulations 2006 / Judgment on Application for Disclosure Orders

Legal Issues

  1. 1 Whether joint liquidators of foreign companies are entitled to disclosure orders against a third party bank under Article 21 of the UNCITRAL Model Law as enacted in the Cross-Border Insolvency Regulations 2006 and section 236 of the Insolvency Act 1986; Whether the scope of disclosure should include internal documents and documents relating to underlying transactions; Whether conditions as to costs and confidentiality should be imposed.

Ratio Decidendi

The joint liquidators, as foreign representatives recognised under the Cross-Border Insolvency Regulations 2006, are entitled to seek disclosure orders under section 236 of the Insolvency Act 1986 via Article 21(1)(g) of the UNCITRAL Model Law. The court's power is not limited by Article 21(1)(d). The documents sought are reasonably required for the liquidators' investigation, and the burden on Deutsche Bank is not unreasonable. Disclosure should be ordered, subject to reasonable restrictions as to scope, costs to be addressed after compliance, and an express confidentiality undertaking by the liquidators.

Court Disposition

Application granted in substantial part, subject to conditions.

Orders

  • Deutsche Bank to disclose documents in the disputed categories, subject to temporal and subject-matter limitations as specified in the judgment.
  • Disclosure subject to redaction of counterparty names as proposed by applicants' counsel.