Vol 18 (2021) - Issue 5

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Mitchell v Al Jaber [2021] EWHC 912 (Ch)

Synopsis
The English High Court considered whether an examination conducted pursuant to section 236 of the Insolvency Act 1986 ("IA 1986") in a compulsory liquidation is protected by witness immunity, whether in the form of "core immunity" because it involves the giving of evidence by a witness in judicial proceedings, or in the form of "extended immunity" because it is a preparatory, investigative step to the giving of evidence.
Joanna Smith J held that:
– a section 236 examination does not attract core immunity because it is fundamentally a private investigatory process facilitated by statute and not properly characterised as a judicial proceeding involving the giving of evidence by a witness;
– there may be cases where a section 236 examination is sufficiently associated with judicial proceedings to benefit from extended witness immunity, however the instant case was not one of them as the evidence indicated that the examinations were conducted merely to assist the liquidation and not with a view to a prosecution or civil action; and
– furthermore, a section 236 examination is not a situation where witness immunity is necessary in the interests of justice. The established public policy justifications for the rule do not apply in the ‘unique’ context of section 236 examinations; in fact, public policy militates against witness immunity protection in section 236 examinations.
Permission to appeal has been granted and an appellate decision is likely in due course.