Rottmann, Re

The privilege against self-incrimination does not protect a witness from questions relevant to possible criminal proceedings under foreign law. The court nevertheless retains a discretion under Insolvency Rule 6.175(6) to adjourn a public examination where continuing it would be calculated to prejudice a fair trial, having regard to all the circumstances. That discretion requires a balance between the bankrupt’s rights, the trustee’s need for information, creditors’ interests and the public interest. A public examination may be suspended on terms requiring a private examination, with controls over the resulting transcript and its use.

Michael Rottmann was bankrupt in England after civil proceedings in Germany had resulted in substantial liabilities. Criminal proceedings and extradition proceedings were also pending in Germany and the United Kingdom. The trustee sought information about assets and their whereabouts. Mr Rottmann applied under Insolvency Rule 6.175(6) to suspend his public examination, arguing that compulsory answers might be transmitted to the German prosecuting authorities and used against him.

The issue was whether the public examination should be suspended despite the common-law rule, reflected in Civil Evidence Act 1968, section 14, that the privilege against self-incrimination does not extend to foreign offences, and whether a private examination could provide an appropriate safeguard.

1. Application allowed in limited form. The public examination was suspended until further order, on terms that a private examination should instead take place before a judge of, or having the status of, a High Court judge. The Official Receiver could attend.
2. The privilege against self-incrimination is a fundamental common-law right, but it does not extend to possible criminal offences under foreign law. The bankrupt was therefore required to attend and answer relevant questions notwithstanding the German proceedings.
3. Rule 6.175(6) conferred a discretion to adjourn where continuing the hearing would be calculated to prejudice a fair trial. Its exercise required a balancing exercise involving the bankrupt’s human-rights concerns, the trustee’s legitimate need for information, creditors’ interest in a public examination and the public interest in the administration of bankruptcy.
4. A private examination under sections 366 and 367 of the Insolvency Act 1986, together with Insolvency Rules 9.3 to 9.5, provided extensive powers to control the transcript and its copies. Those safeguards could protect the bankrupt while preserving the trustee’s ability to investigate assets. A public examination could take place later, with the bankrupt asked to confirm his answers.