Keep it secret - can insolvency make you tell all?

Keep it secret - can insolvency make you tell all?
Can legal privilege and professional secrecy in another jurisdiction prevent a liquidator from obtaining company property and documentation under sections 234 and 236 of the Insolvency Act 1986? What about where that disclosure could lead to criminal and regulatory sanctions? These issues were addressed in Hellas Telecommunications (Luxembourg) [2013] Lexis Citation 71 , where Mr Registrar Jones decided that Luxembourg professional privilege and secrecy laws could not prevent the company's liquidator from obtaining documentation relating to and belonging to the company.

What happened in the case?

The liquidators of Hellas Telecommunications (Luxembourg) II SCA (In Liquidation) (the company), a company incorporated in the Grand Duchy of Luxembourg, made an application for an order for production by the respondents (a law firm based in Luxembourg, members of that firm and a client of the firm) of (in summary) documents 'belonging to' the company or 'relating to' its promotion, formation, business, dealings, affairs of property. The liquidators also identified certain categories of documentation required but (mostly owing to the lack of information or documentation available to them) did not limit the application to just the documents listed. The liquidators also requested witness statements from the respondents to set out the details of key personnel who had carried out work on behalf of the company.

The respondents opposed the liquidator's application for the delivery up of any information concerning or relating to the company. Primarily, this was because the disclosure of any information and documentation concerning the company would breach Luxembourg law of professional secrecy and rules of professional conduct. The respondents also asserted that such disclosure would (at least) lead to the imposition of criminal as well as to adverse regulatory and/or private law consequences. The fifth respondent's position was that an order should not be made because all of the material is privileged whether under English law or the law of Luxembourg.


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