(1)An investigator has the powers conferred by section 171.
(2) An investigator may also require a person who is neither the subject of the investigation (“the person under investigation”) nor a person connected with the person under investigation—
(a)to attend before the investigator at a specified time and place and answer questions; or
(b)otherwise to provide such information as the investigator may require for the purposes of the investigation.
(3)A requirement may only be imposed under subsection (2) if the investigator is satisfied that the requirement is necessary or expedient for the purposes of the investigation.
(4) “Investigator” means a person appointed as a result of subsection (1) , (4) or (4B) of section 168.
(5) “Specified” means specified in a notice in writing.
Cases considering section 172 (7)
[2010] EWCA Civ 123 · 24 February 2010Interprets
The court distinguished section 172’s additional powers from section 171’s document-production power. The section 172 necessity-or-expediency threshold could not be transferred to section 171(2). (see paras [29], [49]-[53])
The court applied section 172(1) to incorporate the section 171 powers into the investigators’ authority, making the section 171 relevance test applicable to the notice. (see paras [29]-[30], [50]-[53])
The court identified section 172(2) as conferring additional powers against an unconnected person, including attendance, answering questions and provision of information. It held that its stricter threshold did not govern document production under section 171(2). (see paras [29], [50])
The court referred to the power to require an unconnected person to attend and answer questions as an example of why section 172(3) sets a stricter threshold than section 171(3). (see para [50])
The court treated section 172(2)(b) as the statutory information power referred to in the distinction between the necessity-or-expediency test and the section 171 relevance test. (see paras [30], [50]-[53])
The court held that section 172(3)’s necessity-or-expediency test applies to requirements under section 172(2), including questioning or information requirements, but not to document production under section 171(2). (see paras [31], [49]-[53])
The court used section 172(4) to confirm that investigators appointed under section 169(1)(b) fell within the statutory definition of investigator and therefore had the powers conferred by section 172. (see para [29])
[2018] EWHC 472 (Ch) · 9 March 2018Interprets
Confirms that the directors may choose between compliant scheme designs provided they act in good faith in the way they consider most likely to promote the company’s success, having regard to the specified interests (see paras [44]-[45], [100](ii)).
[2009] EWHC 2242 (Admin) · 25 August 2009Interprets
Section 172(2) permits an investigator to require a person unconnected with the investigation to provide information for its purposes. The court considered the provision relevant to the treatment of confidential documents, while preferring the specific document-production route in section 171(2) (see paras [14]-[15]).
Section 172(3) requires a requirement imposed on an unconnected person to be necessary or expedient for the investigation. The court held that necessity, expediency and proportionality were implicit considerations when confidential documents were sought (see paras [14]-[15]; [42]-[47]).
What each judgment says about section 172 is in the case-law panel in the full Act.
335.This section establishes wider powers for investigators appointed under section 168(1) or (4), the power to investigate particular suspected contraventions or offences. It does not, therefore, apply to investigations into possible insider dealing, market abuse, misleading statements and practices or a breach of the general prohibition or the promotional prohibitions. Because the grounds required under section 168 are more specific, the powers available to the investigator are wider in terms of who may be required to give information. A person who is not the person under investigation or connected to that person may only be asked questions so long as the investigator is satisfied that it is necessary or expedient to do so. The term “connected” attracts the same meaning as under section 171.