Examination under section 236 attracts immunity

The liquidators had been granted permission to amend their points of claim, when it became clear during the course of trial that statements made by the first appellant during section 236 examinations were untrue. The judge had rejected the submission that the amendments had no real prospect of success because the statements attracted the protection of immunity from suit afforded to participants in litigation.

On appeal, the court was required to determine whether the immunity from suit afforded to participants in court proceedings, including to parties and witnesses of fact, applied to statements made by an examinee during a private examination conducted under section 236 IA 1986.

The Court of Appeal held that in this context, the section 236 examination was part of a wider "judicial proceeding", namely the compulsory winding-up which was commenced with a court order and supervised by the court thereafter. It followed that a liquidator posing questions in a section 236 examination in a compulsory winding-up was furthering the insolvency proceedings and would have immunity from suit in respect of the questions asked or the statements put to the examinee. Given the nature of the section 236 examination and the fact that both the judge and the liquidator enjoyed immunity, the section 236 examination, viewed in the context of the winding-up proceedings, was the kind of judicial proceeding in which all participants were entitled to immunity.

Accordingly, the first appellant’s statements in the section 236 examinations enjoyed immunity from suit.

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

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