Registrar of Companies v Swarbrick and others (joint administrators of Gardenprime)

The Administrators were seeking the removal of the original administration proposals from the Register of Companies. They were concerned that their dissemination publicly breached a contractual obligation to keep certain information confidential (“the disputed material”).

The order made was that the Registrar should exercise his power pursuant to s.1076 of the Companies Act 2006 to remove the original proposals from the Register and the amended proposals be accepted. The Registrar applied to set aside this order.

The Registrar did not contest the order that the original hearing was in private, but the court considered that the appeal was in public and that the hearing at first instance ought to have been in public as well.

At the original hearing it had been argued by the Respondents that the disputed material comprised matters within the ambit of rule 2.33A(1) of the Insolvency Rules 1986 and that the disclosure of such would prejudice the conduct of the administration. Further, it was contended that it also fell under the “unnecessary material” meaning in s.1074(2) of the Companies Act and as it was not capable of being separated from the rest of the proposals, the whole proposals should be treated as not meeting the requirements for proper delivery.

On the application it was submitted that the Companies Act 2006 introduced a new statutory regime and the court’s extra-statutory jurisdiction was extremely limited. Specifically, the court did not possess any “inherent jurisdiction” over the Registrar of Companies and the detailed statutory code for removal of material from the Register made the existence of a parallel non-statutory jurisdiction more unlikely.

It was held that the court had jurisdiction to make an order limiting disclosure under IR 2.33A and such an order could have retrospective effect. Further, the proposals contained “unnecessary material” within the meaning of s.1074(2). The application was dismissed.

This case is an interesting example of the operation of the Court’s jurisdiction to make orders protecting confidentiality of information on the Register of Companies.