Insolvency Act 1986, section 133

Public examination of officers

Part IV Winding Up of Companies Registered under the Companies Acts

(1)Where a company is being wound up by the court, the official receiver or, in Scotland, the liquidator may at any time before the dissolution of the company apply to the court for the public examination of any person who—

(a)is or has been an officer of the company; or

(b)has acted as liquidator or administrator of the company or as receiver or manager or, in Scotland, receiver of its property; or

(c)not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company.

(2)Unless the court otherwise orders, the official receiver or, in Scotland, the liquidator shall make an application under subsection (1) if he is requested in accordance with the rules to do so by—

(a)one-half, in value, of the company’s creditors; or

(b)three-quarters, in value, of the company’s contributories.

(3)On an application under subsection (1), the court shall direct that a public examination of the person to whom the application relates shall be held on a day appointed by the court; and that person shall attend on that day and be publicly examined as to the promotion, formation or management of the company or as to the conduct of its business and affairs, or his conduct or dealings in relation to the company.

(4)The following may take part in the public examination of a person under this section and may question that person concerning the matters mentioned in subsection (3), namely—

(a)the official receiver;

(b)the liquidator of the company;

(c)any person who has been appointed as special manager of the company’s property or business;

(d)any creditor of the company who has tendered a proof or, in Scotland, submitted a claim in the winding up;

(e)any contributory of the company.

Definitions used in section 133 3

the company

2 Section 233B does not apply in relation to a contract for the supply of goods or services to a company (“the company”) where any of paragraphs 3 to 11 applies.

Defined in Sch.4ZZA para.2 · see it in the full Act
administrator

1 (1) For the purposes of this Act “administrator” of a company means a person appointed under this Schedule to manage the company’s affairs, business and property.

Defined in Sch.B1 para.1(1) · see it in the full Act
contributory

(1) In this Act . . . the expression “contributory” means every person liable to contribute to the assets of a company in the event of its being wound up, and for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory.

Defined in s.79(1) · see it in the full Act

Cases considering section 133 20

Masri (Respondent) v Consolidated Contractors International Company SAL and others and another (Appellant) and another

[2009] UKHL 43 · 30 July 2009

The public-examination power reached former officers abroad because compulsory winding up involved public investigation and universal administration. Those features distinguished it from private post-judgment examination under rule 71. (see paras [14]; [21]-[27])

Jimenez, R. (On the Application of) v The First Tier Tribunal (Tax Chamber)

[2019] EWCA Civ 51 · 31 January 2019

Section 133 was contrasted with section 25(1): its wider class of persons and insolvency context supported an order against a former director living abroad. (see paras [17]-[20])

The Official Receiver v Deuss & Ors

[2020] EWHC 3441 (Ch) · 17 December 2020Limits

Interprets and applies the statutory gateway for a public examination. The applicant must establish that the examination is required for the office-holder’s functions and has useful purpose; even then, the court must refuse an oppressive order. The provision was applied to refuse examination in the circumstances. Applies the eligibility conditions for seeking a public examination, including that the company is being wound up and that the person falls within an identified statutory category. The provision did not remove the need to establish utility or avoid oppression (see paras [24], [64]-[81]). Applies the requesting-creditor mechanism by which the Official Receiver is requested to make an application, subject to the court’s consideration of utility, fairness and oppression. The request did not establish entitlement to an examination as a matter of course (see paras [24], [64]-[67]). Applies the scope of compulsory questioning concerning the company’s promotion, formation, management, business and affairs, and the person’s conduct or dealings in relation to the company. The proposed questioning still had to be useful, proportionate and non-oppressive (see paras [24], [69]-[80]).

What each judgment says about section 133 is in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Modifications

  1. C376S.133 applied (with modifications) (1.12.1994) by S.I. 1994/2421, art. 8(3)(9), Sch. 4 Pt. II para. 11
  2. C377S. 133 applied (with modifications) (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), Pt. 3 reg. 1, Sch. 2 paras. 3, 5 Table (with reg. 24)
  3. C378Ss. 133-135 applied (with modifications) (4.1.2024) by S.I. 2021/716, Sch. 1 para. 3 (as amended by The Payment and Electronic Money Institution Insolvency (Amendment) Regulations 2023 (S.I. 2023/1399), regs. 1(2), 20)
  4. C379S. 133 applied (with modifications) (E.W.) (15.3.2024) by The Water Industry (Special Administration) Regulations 2024 (S.I. 2024/205), regs. 2(2), 5(1) (with reg. 64)