McLeannan (Tay Square Properties Ltd) [2004] ScotCS 262 (03 December 2004)

McLeannan (Tay Square Properties Ltd) [2004] ScotCS 262 (03 December 2004)

Section 236 of the Insolvency Act 1986 applies equally in Scotland and England, abrogating the privilege against self-incrimination for examinees. Article 6 ECHR is not engaged by section 236 proceedings, as they are investigative, not adjudicative. Even if Article 6 were engaged, the balance of interests favours requiring answers without warning, with any fairness concerns to be addressed in subsequent proceedings.

Citation
[2004] ScotCS 262
Parties
Noter (liquidator): Thomas Campbell McLennan, Chartered Accountant, Liquidator of Tay Square Properties Limited; Examinee (company Director): Scott Taylor, director of Tay Square Properties Limited
Jurisdiction
Scotland
Judgment Date
03 December 2004
Procedural Posture
Application Under Section 236 of the Insolvency Act 1986 / Opinion on Privilege Against Self Incrimination During Examination
Outcome
Application granted; examinees must answer questions without self-incrimination warning.
Legal Topics
Privilege Against Self Incrimination, Examination of Company Officers, Interpretation of Section 236 Insolvency Act 1986, Article 6 ECHR Applicability
Insolvency Law Company Law Human Rights Law Privilege Against Self Incrimination Examination of Company Officers Interpretation of Section 236 Insolvency Act 1986 Article 6 ECHR Applicability

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Parties

Thomas Campbell McLennan, Chartered Accountant, Liquidator of Tay Square Properties Limited

Noter (liquidator)

Scott Taylor, director of Tay Square Properties Limited

Examinee (company Director)

Procedural Posture

Application Under Section 236 of the Insolvency Act 1986 / Opinion on Privilege Against Self Incrimination During Examination

Legal Issues

  1. 1 Does section 236 of the Insolvency Act 1986 abrogate the privilege against self-incrimination for examinees in Scotland?
  2. 2 Is Article 6 of the European Convention on Human Rights engaged by section 236 proceedings?

Ratio Decidendi

Section 236 of the Insolvency Act 1986 applies equally in Scotland and England, abrogating the privilege against self-incrimination for examinees. Article 6 ECHR is not engaged by section 236 proceedings, as they are investigative, not adjudicative. Even if Article 6 were engaged, the balance of interests favours requiring answers without warning, with any fairness concerns to be addressed in subsequent proceedings.

Court Disposition

Application granted; examinees must answer questions without self-incrimination warning.

Orders

  • Mr. Taylor and any other examinee in the current section 236 proceedings must answer questions without any warning about self-incrimination.