Are you a creditor looking to recover your money?

If you are a creditor of an insolvent company or a bankruptcy, Oliver Elliot can help you Insolvency Forensic Discovery. We Know Insolvency Inside Out.

We Know Insolvency Inside Out
contact us for help

Share This Page!

Insolvency Forensic Discovery

Insolvency forensic discovery involves a combination of ownership and entitlement to information points to enable reconstruction of information for Liquidators, Administrators and Trustees in Bankruptcy.

The following is a series of short and snappy extracts from legislation and reported insolvency cases that can be selectively deployed in seeking to obtain information that an Insolvency Practitioner may need, to undertake his or her investigation duties to creditors.

First Principles

The question is what information are you after and from whom? Starting from first principles, each of the sections below descends into a series of likely sources of information for Insolvency Practitioners who are seeking to reconstruct records and reconstitute knowledge so that they can administer the Insolvent Estate.

Obtaining Information On Ownership Grounds

The ability to obtain information is split between rights available on ownership grounds and rights available on the basis of entitlement by other means.

Sources Of Information

The sources of information will likely be:

  • Company Records
  • Bankrupt’s Records
  • Solicitors Files
  • Accountants Files
  • Bank Records
  • Auditors Files
  • HM Revenue and Customs Files

The ability to obtain information has been set out on the basis of the most likely and useful way to obtain the information but it is possible to rely upon grounds of entitlement in each case instead of ownership. However, where ownership rights are available they are likely to be a higher class of rights.

In seeking to obtain such records this toolkit will also consider how to potentially overcome the following conceivable obstacles:

  • Costs
  • Data Protection & GDPR

Public Duty

The cornerstone the discovery process is Public Duty. This was notably set out in the case of Re J T Rhodes Ltd [1987] BCLC 77:

Today we have no difficulty with the proposition that persons who have had what was perhaps no more than the misfortune to be involved in the affairs of an insolvent company owe a public duty to assist the liquidator to investigate the affairs of that company in the interests of creditors. This duty is particularly strong in the case of persons who were closely involved in the conduct of the company’s business. A liquidator comes to his task with no knowledge of the company’s affairs. The company’s books and papers are often inadequate to tell him the whole story. He will frequently need, and the public interest requires that he should have, the assistance of those who were involved in the conduct of its business.

Obtaining Information

Company Records


Insolvency Forensic Discovery Recovery:

Bankrupt’s Records

Insolvency Forensic Discovery Recovery:



Solicitors Files

Insolvency Forensic Discovery Recovery:


  • Walker Morris v Khalastchi [2001] 1 BCLC: …The starting point is that the files are the property of the Company, and the liquidator is entitled to possession of them. The applicants have no right whatsoever to withhold them.”
  • Joint files: Re Konigsberg (a bankrupt), ex parte the trustee v Konigsberg [1989] 3 All ER 289: “… joint clients cannot maintain privilege against each other…”


  • Section 311(1) of the Insolvency Act 1986 to obtain privileged documents.
  • Re Murjani (a bankrupt) [1996] 1 WLR 1498: “The availability of legal professional privilege in case of an order against a solicitor in respect of matters properly within the ambit of a section 366 order is accordingly circumscribed: it cannot extend to anything which the client can himself lawfully be required to reveal.”
  • Hooper v Duncan Lewis (Solicitors) Ltd & Ors [2010] BPIR 591 – in Hooper it was held that the right to assert privilege was not the solicitors but that of the client.

Accountants Files

Insolvency Forensic Discovery Recovery:



Bank Records


  • There is usually little argument that bank records such as bank statements and source documents will be provided under the statutory powers arising from Section 236 of the Insolvency Act 1986 in the case of Liquidations and Administrations.
  • There is usually little argument that bank records such as bank statements and source documents will be provided under the statutory powers arising from Section 366 of the Insolvency Act 1986 in the case of Bankruptcy.

Auditors Files


  • Re British & Commonwealth Holdings Plc (Nos. 1 and 2) [1992] Ch. 342: “Buckley J. in In re Rolls Razor Ltd. [1968] 3 All E.R. 698, 700, in a passage cited by Slade J. in In re Castle New Homes Ltd. [1979] 1 W.L.R. 1075, 1086, and specifically approved by this court in In re Esal (Commodities) Ltd. [1989] B.C.L.C. 59, 64, 70, said: “The powers conferred by section 268 are powers directed to enabling the court to help a liquidator to discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in order that the liquidator may be able, as effectively as possible and, I think, with as little expense as possible and with as much expedition as possible, to complete his function as liquidator, to put the affairs of the company in order and to carry out the liquidation in all its various aspects, including, of course, the getting in of any assets of the company available in the liquidation.””

HM Revenue and Customs Files


Data Protection & GDPR

Exemptions generally will likely apply to Insolvency Practitioners by virtue of paragraph 5 of Schedule 2 of the Data Protection Act 2018.

The purpose of this page is to enable the stakeholders of the insolvency process to have transparency of the powers and rights of Insolvency Practitioners to obtain information so that they can undertake their role as Liquidator, Administrator or Trustee in Bankruptcy of an Insolvent Estate. It is not however legal advice and should not be relied upon as such and no liability is accepted in relation to any reliance placed upon the aforesaid.

Recent Posts / View All Posts

Insolvency Service Talking Tough

Insolvency Service Talking Tough

| Liquidation | No Comments
The Insolvency Service Talking Tough? Boris Becker, once the world number one tennis player (winner of six Grand Slams) is now perhaps one of the most famous former tennis players…
Liquidator HMRC Tax Avoidance Claim

Blowing The Embers Of A Long-Abandoned Fire – Liquidator Tax Avoidance Claim

| Liquidation | No Comments
Liquidator Tax Avoidance Claim Overview A seemingly disappointing decision sprouted in the case of Hunt v Balfour-Lynn & Ors EWHC 784 (Ch) when a Liquidator tax avoidance claim did not…
Post Petition Payments In A Liquidation

Post Petition Payments In A Liquidation

| Liquidation | No Comments
Overview Of Liquidation Committee A Liquidation Committee is a number of the creditors of the company in Liquidation that in effect represent all of the creditors. Purpose Of A Liquidation…
Desire To Prefer

Desire To Prefer And Company Policy

| Liquidation | No Comments
Overview Of Desire To Prefer And Company Policy A case popped up on pancake Tuesday, Re De Weyer Ltd EWHC 395 (Ch) and at its heart was the desire to…