Aiman Meqham Almeqham v Mishal Al-Sanea

Article 21(1)(d) of the Cross-Border Insolvency Regulations 2006 must be construed purposively. Information may concern a debtor’s affairs or assets even where ownership remains disputed, provided the application genuinely relates to investigating or recovering assets.

The jurisdictional threshold is distinct from the reasonable-requirement test under section 236 of the Insolvency Act 1986, although the same outcome may arise on the facts. The court must balance the office-holder’s reasonable need against oppression, cost and disruption. Existing litigation is not an absolute bar, but an office-holder must explain why compulsory disclosure is reasonably required at that stage rather than through ordinary litigation procedures.

The applicant, the recognised liquidation trustee of two Saudi debtors, sought relief under Article 21(1)(d) of the Cross-Border Insolvency Regulations 2006 requiring the respondent, the son of one debtor, to provide information and documents concerning the debtors’ affairs and alleged English assets. He also sought orders dispensing with service on the debtors.

The application concerned properties already the subject of recovery proceedings and an asset protection order. The respondent disputed the breadth and necessity of the requested disclosure, particularly because the applicant intended to use it in existing litigation. The issues included the jurisdictional scope of Article 21(1)(d), the applicable necessity or reasonable-requirement test, the effect of litigation advantage, service, and the scope of the disclosure sought.

1. Service. Service on the recognised liquidation trustee himself was waived because it served no purpose. Service on the remaining debtor was dispensed with because he had refused or failed to engage with attempts at service and there was no evidence of a change of position.
2. Applicable tests. Article 21(1)(d) contains a jurisdictional and a discretionary component. The court must be satisfied that the information concerns the debtor’s assets, affairs, rights, obligations or liabilities. The provision is to be interpreted purposively and broadly. A disputed claim that assets belong to the debtor may therefore concern the debtor’s affairs and assets. The court rejected importing the three-stage jurisdictional test from Brownlie.
3. The wording requiring relief to be necessary to protect assets or creditors is not invariably identical to the section 236 reasonable-requirement test. The distinction is fact-sensitive. Since the applicant had not established even a reasonable requirement, the court applied that familiar test.
4. Balancing exercise. The court had to balance the applicant’s reasonable need for information against oppression, disruption, stress and expense to the respondent. Considerable weight is normally given to the office-holder’s views. Existing or contemplated litigation is not an absolute bar, but any litigation advantage is relevant to whether the applicant has shown a reasonable requirement and why disclosure is needed immediately.
5. The applicant had already identified the English Properties, secured them by an asset protection order and commenced recovery proceedings. His evidence showed a desire to obtain broad disclosure early to strengthen those proceedings, but did not establish urgency or any separate need to protect or identify assets. The requested categories were excessively wide and the applicant could use ordinary procedural remedies available to other litigants. The orders sought for all documents relating to the English Properties and fourteen companies were therefore refused.
6. The agreed narrower disclosure under paragraphs 1(e) and 1(f) was ordered. The wording concerning “all acts” under paragraph 1(b) was overbroad and was left for the parties to refine, with directions to follow if agreement could not be reached. Privilege, confidentiality and compliance costs were left for consequential directions.

The judgment describes earlier proceedings in which the applicant obtained recognition under the Cross-Border Insolvency Regulations 2006, an asset protection order, and an order addressing the applicant’s ability to pursue a trust claim. The present application was determined at first instance. The Deputy Judge’s refusal of permission to appeal in the recovery proceedings had been renewed before the Court of Appeal but remained undetermined at the hearing.