Chancery Division
| Published date | 01 August 1992 |
| DOI | 10.1177/002201839205600308 |
| Date | 01 August 1992 |
| Subject Matter | Chancery Division |
CHANCERY
DIVISION
WHETHER INFORMATION SUPPLIED TO LIQUIDATORS OF COMPANY
SHOULD BE DISCLOSED TO DIRECTORS FACING CRIMINAL CHARGES
Re Barlow Clowes Gilt Managers
Ltd
The
question of whether information supplied to the liquidators of a
company being compulsorily wound up should be disclosed to defendants
to criminal charges was considered in Re Barlow Clowes Gilt Managers
Ltd
[1991] 4 All
ER
385. In July 1988 the High Court ordered the
compulsory winding up of the deposit taking company, Barlow Clowes
Gilt Managers Ltd, and appointed partners in Cork Gully and in Ernst &
Young joint liquidators. At about the same time a sister company, Barlow
Clowes International was compulsorily wound up by the Gibraltar Supreme
Courtand the Cork Gully partner was appointed one of the joint liquidators
of that company. In December 1988Mr Clowes (a director of the company)
and three others were charged with conspiracy to contravene s 13(1) of
the Prevention of Fraud (Investments) Act 1958 and with a number of
offences of theft. That prosecution was brought by the Serious Fraud
Office and the preparatory hearings under the Criminal Justice Act 1987
were conducted by Phillips J.
As part of the investigations by the liquidators into the affairs of the
company a series of interviews were held with 16 persons involved with
the various Barlow Clowes companies and with two other witnesses. All
these persons attended the interviews on a voluntary basis but 'in response
to a threat, often express but always implicit' that their attendance could
be compelled. Transcripts of the interviews were made. All of the 16
persons interviewed by the liquidators were also interviewed by the
Department of Trade and Industry inspectors and the transcripts of those
interviews were supplied to the Serious Fraud Office, and made available
by them to the defendants. The Serious Fraud Office also have copies of
the transcripts of four of the persons interviewed by the liquidators and
these have been or will be supplied to the defendants.
The defendants in the criminal trial wished to obtain copies of the
transcripts of the interviews of the other 14 witnesses interviewed by the
liquidators and sought to do so by issuing a witness summons requiring
productionof the transcripts against the Cork Gully partner. The liquidators
indicated to Phillips J that they would seek to have the witness summons
set aside and the hearing before Phillips J was then adjourned while the
liquidators issued a summons in the Companies Court. That application,
brought under s 168(3) of the Insolvency Act 1986, sought the guidance
of the court and in particular adirection that the liquidators should be at
liberty to disclose the transcripts in dispute. At the hearing of the
application the defendants to the criminal charges argued for the disclosure
of the transcripts, and were supported by the Serious Fraud Office, who
had been allowed to intervene; the witnesses who gave evidence to the
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