The Registrar of Companies v Swarbrick & Ors (Administrators of Gardenprime Ltd)

The court’s jurisdiction over the Registrar of Companies is limited. There is no general inherent supervisory jurisdiction, but ordinary public law principles may require the Registrar to perform statutory duties lawfully and compatibly with Convention rights.

Rule 2.33A of the Insolvency Rules 1986 permits retrospective orders limiting disclosure of specified information in an administrator’s proposals where the statutory threshold is met. The power is confined to the matters identified in rules 2.33(2)(h) and (j), and its exercise is discretionary.

Sections 1074 and 1076 of the Companies Act 2006 provide additional mechanisms concerning unnecessary material and replacement documents.

The Registrar applied to set aside an order made on the administrators’ application concerning proposals filed under paragraph 49 of Schedule B1 to the Insolvency Act 1986. The proposals contained material which was said to be confidential and whose publication might prejudice the conduct of the administration.

The earlier order limited disclosure under rule 2.33A of the Insolvency Rules 1986, declared that the proposals contained unnecessary material, directed the filing of amended proposals and directed the Registrar to remove the original proposals from the register.

The central issues were whether rule 2.33A could operate retrospectively, whether the statutory provisions concerning unnecessary material and replacement documents applied, and the extent of the court’s jurisdiction over the Registrar.

1. The application was dismissed, subject to any further submissions on whether the disputed material fell within rule 2.33A. The court held that rule 2.33A is tightly confined to specified information required by rules 2.33(2)(h) and (j). It does not create an unlimited power to restrict disclosure of other parts of an administrator’s proposals.

2. Rule 2.33A may be interpreted compatibly with article 8 of the Convention. Its jurisdiction is not exhausted when the paragraph 49 statement has been sent to the Registrar. A retrospective application and order are possible where the statutory criteria and the interests of justice justify them.

3. An order properly made under rule 2.33A binds the Registrar. The Registrar may comply by removing the original material and retaining an appropriately redacted version. The Registrar may annotate the register under sections 1081(1)(c) and (d) of the Companies Act 2006.

4. There is no general inherent supervisory jurisdiction over the Registrar. The court may, however, control the performance of statutory duties in accordance with ordinary public law principles, including where necessary to give effect to Convention rights. It may not require the Registrar to act contrary to a statutory duty or exercise a power which the Registrar does not possess.

5. For section 1074, whether material is necessary to comply with an enactment is an objective question of statutory interpretation. Whether material is specifically authorised to be delivered also refers to legislative authorisation, not authorisation by the person filing the document. An order under rule 2.33A may cause material to become unnecessary material for the purposes of section 1074.

6. If necessary to give effect to a valid rule 2.33A order, the court may require the Registrar to exercise the power under section 1076 to accept a replacement document, provided the Registrar remains satisfied that the replacement complies with the requirements for proper delivery.

7. Hearings must ordinarily be public. A derogation from open justice requires a fact-specific assessment and must be strictly necessary and no wider than required.

First-instance decision. The judgment records an earlier order made by Deputy Registrar Garwood on 19 August 2013 and directions made by Deputy Registrar Agnello QC on 21 January 2014.