Akers & Anor v Deutsche Bank AG

Akers & Anor v Deutsche Bank AG

The liquidators are entitled to disclosure of the disputed categories of documents under Article 21(1)(g) and section 236 of the Insolvency Act 1986, as such disclosure is reasonably required for their statutory functions and is necessary to protect the assets of the debtor or the interests of the creditors. The scope of disclosure is not confined to reconstituting the companies' knowledge and may include investigation of potential claims or wider schemes. Disclosure is subject to confidentiality undertakings and the issue of compliance costs will be addressed after compliance.

Parties
Applicant: Stephen John Akers; Applicant: Mark McDonald; Respondent: Deutsche Bank AG
Jurisdiction
England and Wales
Judgment Date
01 February 2012
Procedural Posture
Insolvency Application / Judgment on Application for Disclosure Orders
Outcome
application granted with conditions
Legal Topics
Disclosure of Documents, UNCITRAL Model Law, Section 236 Insolvency Act 1986, Liquidators' Powers, Confidentiality Undertakings
Insolvency Cross Border Insolvency Banking Law Disclosure of Documents UNCITRAL Model Law Section 236 Insolvency Act 1986 Liquidators' Powers Confidentiality Undertakings

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Parties

Stephen John Akers

Applicant

Mark McDonald

Applicant

Deutsche Bank AG

Respondent

Procedural Posture

Insolvency Application / Judgment on Application for Disclosure Orders

Legal Issues

  1. 1 Whether the joint liquidators are entitled to disclosure of documents from Deutsche Bank under Article 21 of the UNCITRAL Model Law as incorporated by the Cross-Border Insolvency Regulations 2006 and section 236 of the Insolvency Act 1986
  2. 2 Whether the scope of disclosure should include internal Deutsche Bank documents and documents relating to underlying credit default transactions, conflicts of interest, client categorisation, and advice given
  3. 3 Whether the disclosure should be subject to confidentiality undertakings and how costs should be addressed

Ratio Decidendi

The liquidators are entitled to disclosure of the disputed categories of documents under Article 21(1)(g) and section 236 of the Insolvency Act 1986, as such disclosure is reasonably required for their statutory functions and is necessary to protect the assets of the debtor or the interests of the creditors. The scope of disclosure is not confined to reconstituting the companies' knowledge and may include investigation of potential claims or wider schemes. Disclosure is subject to confidentiality undertakings and the issue of compliance costs will be addressed after compliance.

Court Disposition

application granted with conditions

Orders

  • Deutsche Bank to disclose the disputed categories of documents to the liquidators, subject to specified temporal and subject-matter limitations and redactions as set out in the judgment.
  • Disclosure is conditional on the liquidators providing an express confidentiality undertaking.