Aiman Meqham Almeqham v Mishal Al-Sanea [2025] EWHC 1662 (Ch)

[2025] EWHC 1662 (Ch)Case No BR-2023-000975 AND CR-2023-006638
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (CHD)
IN THE MATTER OF:
(1) MAAN BIN ABDUL WAHED AL-SANEA (AN INDIVIDUAL IN LIQUIDATION) AND
(2) SAAD TRADING, CONTRACTING AND FINANCIAL SERVICES CO. (A COMPANY INCORPORATED IN SAUDI ARABIA, IN LIQUIDATION)
AND IN THE MATTER OF THE CROSS-BORDER INSOLVENCY REGULATIONS 2006
Venue Royal Courts of Justice, Rolls Building, London, EC2A 4NLDate 02/07/2025
Before
INSOLVENCY AND COMPANIES COURT JUDGE BURTON
Between
AIMAN MEQHAM ALMEQHAMApplicant(Liquidation trustee of Maan Bin Abdul Wahed Al-Sanea and Saad Trading, Contracting and Financial Services Co.)ApplicantMISHAL AL-SANEARespondent
Andrew Hunter K.C.(instructed by Joseph Hage Aaronson & Bremen LLP) for ApplicantRichard Gillis KC (instructed by Child & Child Law LLP) for RespondentHearing Hearing date: 9 May 2025
Approved JudgmentThis judgment was handed down remotely at 11.30am on 2 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

ICC Judge Burton :

[1]The Applicant is the recognised liquidation trustee of Maan Bin Abdul Wahed Al-Sanea (“Mr Al-Sanea”) and Saad Trading, Contracting and Financial Services Co (the “Company”, together with Mr Al-Sanea, the “Debtors”). He applies: i) pursuant to Article 21(1)(d) of the Cross Border Insolvency Regulations 2006 (the "CBIR”) for discretionary relief requiring the Respondent to deliver up to him all information and documents concerning the assets, affairs, rights, obligations and/or liabilities of Mr Al-Sanea (who is the Respondent’s father) and/or the Company; and ii) pursuant to CPR rule 6.28 for an order dispensing with service of this application and accompanying documents on the Debtors (together, the “Application”).[2]Mr Al-Sanea is a Saudi Arabian citizen, married to Ms Sana Al-Gosaibi (“Ms Al-Gosaibi”). Their children include the Respondent and his sister, Ms Suha Al-Sanea. Over the course of his career, Mr Al-Sanea established various companies, including the Company, which came to be known as the Saad Group. The Saad Group and Mr Al-Sanea ran into financial difficulties resulting in an order dated 2 March 2022 of the Fifth Appeal Circuit of Saudi Arabia, appointing the Applicant as the Debtors’ liquidator.[3]Following the judgment of the Court of Appeal in Riyadh, Saudi Arabia – First Circuit of Financial and Administrative Corruption Cases dated 30 March 2023, Mr Al-Sanea is serving a nine-year prison sentence for bribery and other offences.[4]The Applicant’s appointment as the Debtors’ liquidation trustee was recognised pursuant to the CBIR by order of this court on 16 February 2024.[5]On 24 May 2024, the Applicant obtained from this court an asset protection order (the “APO”) in proceedings (the “Recovery Proceedings”) concerning 19 properties located in London (the “English Properties”). By those proceedings, the Applicant sought declarations against Mr Al-Sanea and five offshore companies (the “Offshore Companies”) that the English Properties were held on constructive or resulting trust for Mr Al-Sanea or the Company following purported transfers in 2012 from two other companies within the Saad Group (the “Trust Claim”); alternatively, an order under section 423 of the Insolvency Act 1986 (the “Act”) that title to the English Properties vested in the Applicant on the basis that the 2012 transfers were made for the purpose of putting them beyond the reach of Mr Al-Sanea’s and/or the Company’s creditors (the “s.423 Claim”).[6]On 14 February 2025, Jonathan Hilliard sitting as a Deputy High Court Judge, (the “Deputy Judge”) gave judgment on various challenges by the Offshore Companies to the claims in the Recovery Proceedings and the associated APO. Insofar as relevant to the application now before me, the Deputy Judge: i) set aside leave to serve the Trust Claim proceedings out of the jurisdiction. His reasoning hinged on the absence of an order under Article 21 of the CBIR vesting in the Applicant, the Debtors’ rights in respect of the English Properties which would entitle the Applicant to administer, realise or distribute them. The Applicant has now applied for and obtained an order under Article 21(1)(e) of the CBIR addressing this point; ii) dismissed various challenges to the s.423 Claim and continued the APO in support of that claim; and iii) refused an application by the Offshore Companies for permission to appeal. That application has been renewed before the Court of Appeal but at the date of the hearing before me, had not yet been determined.[7]In the meantime, on 29 September 2024, the Applicant issued this Application against the Respondent under Article 21(1)(d) of the CBIR. The Respondent has already provided several categories of documents by consent including a set of schedules which were delivered just four working days before this hearing. I am grateful to the parties for working together to formulate, with my permission, an amended application notice referring to a draft order which highlights the disclosure still sought.[8]By the revised draft order, the Applicant seeks:
“1. To the extent not already provided …the documents set out below relating to the business, financial and/or property affairs of [Mr. Al-Sanea] and/or [the Company] PROVIDED that: (1) any documents which are subject to a claim for legal professional privilege solely by the Respondent are excluded; (2) any documents which may be subject to any other claim for legal professional privilege shall be disclosed by way of privilege log (by category if appropriate) but shall not be delivered up without further order of the Court:, a. [Not used] b. Full details of all of the transactions and other acts which the Respondent has taken, or purported to take, in reliance upon the documents referred to in paragraph 1a of the Consent Order dated 17 October 2024, and all documents relating to each such transaction or other act. c. All documents relating to the [English Properties]. d. All documents relating to the [14 Saad Group] companies listed in Schedule 2 to this Order. e. The documents within Categories 1, 4 and 9 of the schedule provided by the Respondent marked as Exhibit MMS2 to his second witness statement (“the Schedule”). f. Such of the documents within Categories 12 and 14 of the Schedule, which relate to any property or properties, money and/or other asset or assets which are or were at any time held or were arguably held by [Mr. Al-Sanea], [the Company], any of the companies listed in Schedule 2 to this Order, any company in which a legal or beneficial interest is or was held by [Mr. Al-Sanea], the Company or the Saad Group and/or any trust in which a legal or beneficial interest is or was held by [Mr. Al-Sanea], [the Company] or the Saad Group. 2. For the Respondent to pay the Applicant’s costs of the Applications; and 3. Permission to apply to restore the Application, including in order to determine any issue as to privilege.”
Relevant legal principles (1) any documents which are subject to a claim for legal professional privilege solely by the Respondent are excluded; (2) any documents which may be subject to any other claim for legal professional privilege shall be disclosed by way of privilege log (by category if appropriate) but shall not be delivered up without further order of the Court:,

Relevant legal principles

[9]Article 21(1) of the CBIR provides: “Upon recognition of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including- … (d) providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities; … (g) granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain, including any relief provided under paragraph 43 of Schedule B1 to the Insolvency Act 1986.[10]Article 22 provides:
“ (1) In granting or denying relief under … article 21….the court must be satisfied that the interests of the creditors (including any secured creditors or parties to hire-purchase agreements) and other interested persons, including if appropriate the debtor, are adequately protected. (2) The court may subject relief granted under article 19 or 21 to conditions it considers appropriate, including the provision by the foreign representative of security or caution for the proper performance of his functions.”
[11]Paragraph 11 to Schedule 2 of the CBIR addresses the hearing and powers of the court:
“11. On hearing an article 21 relief application the court may in addition to its powers under the Model Law to make an order granting relief under article 21 of the Model Law— (a) dismiss the application; (b) adjourn the hearing conditionally or unconditionally; (c) make any other order which the court thinks appropriate.”
[12]Paragraph 21 of Schedule 2 to the CBIR sets out the requirements for service of an application and any order made under Article 21. It requires a sealed copy of the application together with any affidavit in support to be served on, inter alia, the debtor. Despite the breadth of the relief that can be sought pursuant to Article 21, it is silent on the requirement for service on third parties such as the Respondent in these proceedings.[13]In Rubin & anor v Eurofinance S.A. & ors [2013] 1 A.C. 236 (S.C.) Lord Collins (with whom Lords Walker and Sumption agreed) held at paragraph 143 of the Court’s judgment that Article 21 is concerned with procedural matters and should be: “given a purposive interpretation and should be widely construed in the light of the objects of the Model Law”.[14]In Picard v FIM Advisers LLP [2011] 1 BCLC 128, (recently followed by Thompsell J in Re Farfetch Ltd. [2024] 3340 EWHC (Ch.)) the liquidation trustee of the business of Bernard L Madoff Securities LLC sought an order under Article 21 requiring the respondent to produce documents concerning the LLC’s assets, affairs, rights, obligations and liabilities. Kitchin J summarised the approach which the court should take:
“23. It is apparent that Article 21(1)(d) has both a jurisdictional and a discretionary component. The court must be satisfied that the information sought concerns the debtor's assets, affairs, rights, obligations or liabilities. If it is so satisfied then it has a discretion to order the delivery of that information. In exercising that discretion it must have regard to all relevant circumstances and ensure that the interests of the person against whom the order is sought are adequately protected. 24. Both parties before me were also agreed that it is appropriate for the court to have regard to the principles upon which the court will exercise its powers under section 236 and section 366 of the Insolvency Act 1986. The relevant principles for present purposes are, I think, these. 25. First, the power is conferred to enable the office holder to discover the true facts concerning the affairs of the company so that he may be able as quickly, effectively and with as little expense as possible to complete his duties. 26. Second, even an honest person who finds himself to have been involved in a major fraud which has had a catastrophic effect for thousands of investors must be expected to cooperate with the office holder. 27. Third, nevertheless, the court must avoid making any order which is unnecessary or unreasonable or which is oppressive to the respondent. 28. Fourth, one of the factors which weighs against making an order or limiting its scope in some way is the disruption, stress and expense likely to be caused to the respondent. 29. Fifth, in assessing what order to make the court will attach considerable weight to the views of the office holder.”
[15]Section 236 of the Act (“s.236”) empowers an insolvency office holder to apply to court for an order summoning to appear before it, any officer of the company, any person known or suspected to have in his possession any property of the company, or any person whom the court thinks capable of giving information concerning the promotion, formation, business, dealings, affairs or property of the company. The court can order any such person to submit an account of his dealings with the company or to produce any books, papers or other records in his possession or under his control relating to the company.[16]The exercise of the court’s unfettered discretion in relation to an application under s.236 involves balancing the reasonable requirement of the office-holder to obtain information, against the possible oppression to the respondent (see British & Commonwealth Holdings Plc (Joint Administrators) v Spicer & Oppenheim [1993] AC 426 per Lord Slynn at 459).[17]In Sasea Finance Ltd [1998] BCC 216 at 221H, Robert Walker J held that: “The jurisdiction under s.236 is not to be used to vary the ordinary rules of procedure in litigation so as to enable office-holders to obtain, for instance, the advantage of premature discovery (see Re North Australian Territory Co ([1890) 45 ChD 87 at p. 92 per Cotton LJ”.[18]Similarly in Re RBG Resources plc [2002] EWCA Civ 1624 Mance L.J. stated (at paragraph 56) that:
“For liquidators to seek an examination under s.236 in order to gain advantage, or to ascertain whether or not they have a claim, in current civil litigation against the proposed examinee seems bound to offend against elementary fairness. Not surprisingly, there are authorities refusing applications made in such circumstances.”
[19]He continued to explain that there is a critical difference between an application made to enable a liquidator to determine whether it is worth proceeding with a civil action already commenced against a Respondent and one made to enable him to “fulfil his general duties as liquidator to reconstitute, investigate and understand the company's affairs and to get in its assets”. The liquidator’s powers are not given in order to enable a liquidator to improve his prospects in litigation by providing rights that other litigants lack. The correct legal approach to requests under Article 21(1)(d)[20]Whilst each of the relevant legal principles set out above are uncontentious, the parties are at odds regarding the test which the court should apply when considering an application under Article 21(1)(d) when, as in this case, it is not accompanied by an application under Article 21(1)(g) (pursuant to which the Applicant could have sought any relief that may be available to a British insolvency officeholder including under s.236).[21]Mr Gillis draws to the court’s attention that the relief available under Article 21(1)(d) is prefaced by the wording at the start of Article 21(1) which provides that the court may grant any appropriate relief “where necessary to protect the assets of the debtor or the interests of the creditors” (my emphasis). That, he submits, is more demanding than the “reasonable requirement” test which the court applies when considering an application under s.236.[22]Whilst noting the different wording, Mr Hunter submits that the case law demonstrates that the court has not been minded to draw a distinction between the two tests. He refers to Re Chesterfield United Inc. [2012] EWHC 244 (Ch) where, at paragraph 13 of his judgment, Newey J stated:
“As was pointed out on behalf of Deutsche Bank, art.21(1) provides for the court to have power to grant relief “where necessary to protect the assets of the debtor or the interests of the creditors”
. I do not think, however, that the words I have quoted significantly curtail the court’s ability to grant relief under s.236 in cases such as the present one. A proper case in which to grant relief under s.236 is one where an office-holder “reasonably requires” to see documents to carry out his functions: see British & Commonwealth Holdings Plc (Joint Administrators) v Spicer & Oppenheim [1993] A.C. 426 at 439; [1992] B.C.C. 977 at 984. If a foreign representative “reasonably requires” material with a view to establishing whether a company has a valuable course of action, relief is likely to be “necessary to protect the assets of the debtor or the interests of the creditors”.”[23]At paragraph 11 of the same judgment, Newey J expressed his view that Article 21(1)(d) was intended to set a common minimum standard which he explained in the following terms:
“… Art.21(1)(d) was intended to set a common minimum standard. A foreign representative is to be able to seek relief under art.21(1)(d) regardless of whether an office-holder would be entitled to such relief under the local law.

(g) ”

[24]In my judgment it is important to note that in Re Chesterfield United,Newey J was considering applications made pursuant to both Articles 21(1)(d) and 21(1)(g) and that it was in those circumstances that at paragraph 12 of his judgment, he said:
“The result is that the precise scope of art.21(1)(d) is unimportant for present purposes. The liquidators can, via art.21(1)(g), rely on s.236 of the Insolvency Act. I agree with the liquidators that, if art.21(1)(d) is narrower than s.236, that is of no consequence.”
[25]In Re Farfetch,Thompsell J does not expressly state whether the application before him was brought under both Article 21(1)(d) and (g) but it appears likely, as he set them both out at the start of his judgment. He referred to paragraph 24 of Kitchin J’s judgment in Picard v FIM Advisers LLP which concerned an application under only Article 21(1)(d) and noted that counsel were content, in that case, for the court to have regard to the principles upon which the court would exercise its powers under s.236.[26]In Re Farfetch the Court adopted the test under s.236 pursuant to a concession. This Application appears to be the first made under Article 21(1)(d) without an accompanying application under 21(1)(g) and where the distinction between the “necessary to protect the assets of the debtor” test and an office holder “reasonably requiring” the relief he seeks, has been debated.[27]In my judgment, Newey J’s statement at paragraph 13 of his judgment in Re Chesterfield United, that in most cases, both tests are likely to be met, should not be interpreted as saying that the same test should invariably apply to all applications under Article 21(1)(d) and 21(1)(g). Newey J’s reference to it being “likely” suggests a fact-specific approach: whilst in most cases the factual matrix is likely to give rise to little discernible difference between them, he appears to have left open the possibility for circumstances to arise where the distinction could be important. If, and to the extent that that was his intention, I respectfully concur with his approach.[28]Despite both parties making submissions on the point, the Respondent’s case is that ultimately the issue is academic because the Applicant has not established even a reasonable requirement for the documents sought by the draft order. As such and as, in the circumstances of this case I do not discern that there would be a difference in the outcome, I consider the prudent approach is to apply the s.236 test familiar to this court and contended for by the Applicant. It falls to me, therefore, to determine whether the Applicant has established that he reasonably requires the documents and information which he continues to seek by the Application. Service of the Application[29]No issues arise regarding the Application having been sent to or served on the Respondent. The Applicant confirmed in his affidavit in support of his application under Article 21(2) of the Model Law that the only parties of relevance falling with the service provisions under Article 21(1) are the Debtors.[30]The Applicant is now the sole director and person responsible for the Company’s affairs. I am satisfied that as a result, no purpose would be served by requiring him to serve the Application on himself. I shall make an order waiving the requirement for him to do so.[31]The remaining Debtor is Mr Al-Sanea. On 11 July 2024, a meeting was arranged via the prison with Mr Al-Sanea. Minutes of the meeting were provided, the English translation of which record that Mr Al-Sanea had received the papers but refused to accept them. The evidence before the court states that since then, no further communications from the prison have been received.[32]Mr Al-Sanea’s local lawyers have apparently not engaged in the Applicant’s proceedings. Mr Al-Sanea himself has taken no part in them, nor evidenced any intention to do so, and has refused to accept service or at least to acknowledge receipt of the documents which the Applicant has gone to considerable lengths to try to serve upon him.[33]Consequently, the Applicant seeks an order dispensing with service of the Application and accompanying documents on Mr Al-Sanea.[34]Taking into account that the court has, in light of the difficulties briefly summarised above: i) dispensed with service on Mr Al-Sanea in relation to the Applicant’s application for a recognition order; ii) dispensed with service upon him in the Recovery Proceedings; and that there is no evidence before the court since those decisions were reached that Mr Al-Sanea might have had a change of heart and now accept service of the Application and accompanying documents upon him, I consider that it is just and expedient to make an order dispensing with such service. The outstanding issues between the parties 35.

The outstanding issues between the parties

(c) and (d) of the draft order

[35]Paragraphs 1(c) and 1(d) of the draft order seek: (c) all documents relating to the English Properties; and (d) all documents relating to the 14 Saad Group companies listed in Schedule 2 to the draft order (together the “Documents”).[36]The Respondent opposes the court making such orders on the basis that: i) the Application fails to meet the jurisdictional threshold requirement of Article 21(1)(d) described by Kitchin J in Picard v FIM Advisers LLP, as the court cannot be satisfied that the Documents concern “the debtor’s assets, affairs, rights, obligations or liabilities”; ii) the “where necessary” test in Article 21 has not been met: the Applicant has failed to show, and cannot currently show, that the Documents are necessary/reasonably required to protect the assets of the debtor or the interests of creditors;and iii) the Application should be denied, as case law establishes that the court’s powers under s.236, and hence equally under Article 21(1)(d), should not be permitted to be used to confer upon liquidators an advantage, not available to other litigants. (i) The jurisdictional requirement – do the Documents concern the debtor’s assets, affairs, rights, obligations or liabilities?[37]Mr Gillis submits that pursuant to Picard v FIM Advisers LLP, the jurisdictional threshold requires the court to be satisfied that the subject matter of the application concerns “the debtor’s assets, affairs, rights, obligations or liabilities”. In this case, he says, the court cannot be so satisfied because the court has not yet determined who financed the acquisition of the English Properties. Whilst the Applicant has conceded in his evidence in the Recovery Proceedings that he is seeking to persuade the court merely to infer that Mr Al-Sanea or the Company financed the acquisition, in his evidence in answer to this application, the Respondent has explained his understanding that the English Properties were financed with monies provided by his mother’s side of the family, the extremely wealthy Al-Gosaibi family. The Respondent states that his mother’s family were wealthy long before Mr Al-Sanea accumulated his own wealth and that despite the English Properties being owned by his mother, due to the patriarchal nature of KSA society, they were originally held in his father’s name.[38]In response to the Respondent’s evidence on this point, the Applicant draws to the court’s attention that the Respondent has provided no contemporaneous documents nor expert evidence regarding KSA law to support this assertion, and that the Applicant states that it is apparently contradicted by Ms Al-Gosaibi’s ownership of other assets.[39]A considerable part of the Applicant’s affidavit addresses the court’s criticism and rejection of the Respondent’s evidence in previous proceedings, Al-Subaihi & anor v. Al-Sanea [2021] EWHC 2609 (Comm). The Applicant asserts that this should incline me also to reject his evidence regarding ownership of the English Properties.[40]In Long v Farrer & Co [2004] BPIR 1218, Rimer J held that subject to limited exceptions, the court should not disbelieve the evidence of a witness given on paper and without the benefit of cross-examination unless the evidence is manifestly incredible, based on an obvious mistake, or contradicted by the witness's own evidence.[41]In my judgment, the Respondent’s evidence does not fall within those limited circumstances: there is nothing apparently fanciful or inherently incredible in the Respondent’s evidence that the English Properties were purchased with his mother’s family’s wealth, nor has that assertion been shown to me to be contradicted by clear documentary evidence or the Respondent’s own evidence. Despite the heavy criticism of the Respondent’s evidence by other Judges in Al-Subaihi, I therefore see no basis upon which it would be appropriate or justifiable for me to reject, on paper, his evidence in this Application[42]Mr Hunter submits that it would significantly undermine the purpose of the regime under Article 21(1) if the court must first be satisfied that the documents or information sought by the Applicant relate to assets that are owned by the debtor. He referred the court to paragraph 9 of Goldman Sachs International v Novo Banco SA [2018] UKSC 34 where, in the context of Goldman Sachs litigation in England to recover sums due under certain loans, Novo Banco challenged the court’s jurisdiction. At paragraph 9 of his judgment, Lord Sumption stated:
“For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had "the better of the argument" on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192 , para 7, this court reformulated the effect of that test as follows: "… (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it." It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced.”
[43]Mr Hunter submits that it is not unusual in insolvency scenarios to encounter disputes regarding the ownership of assets and that in the case before me, the jurisdictional threshold for Article 21(1) is satisfied by applying the same three-stage test from Brownlie. He submits that the fact that the APO has been granted, establishes that whilst I cannot determine the conflict in evidence regarding ownership of the English Properties, I can be satisfied that there is a plausible, albeit contested evidential basis for the Applicant’s claim.[44]I reject the introduction of this three-fold test to the jurisdictional threshold test required by Article 21(1). Kitchin J did not seek to elaborate on the wording of the Article when identifying its jurisdictional component in Picard v FIM Advisers LLP. He referred only to the court needing to be satisfied that the information which the office holder seeks, concerns the debtor's assets, affairs, rights, obligations or liabilities. Neither in that case, nor subsequently, has the court sought to put any finer gloss upon it by introducing the test deployed for determining conflicts of international law. I see no reason to do so.[45]Mr Hunter relies alternatively on Article 21(1)(d) entitling the Applicant to seek the delivery up of information not only about the debtor’s assets but also “concerning the debtor’s …affairs”. The Debtors’ affairs include determining their interest in assets believed to be owned by them. His “affairs” therefore encompass the purposes for which the Applicant seeks relief.[46]Mr Gillis opposes this on the basis that a belief or suspicion regarding ownership is not enough. To meet the jurisdictional threshold, the Applicant must show more than a suspicion: he must succeed in showing that the English Properties properly form part of the Debtors’ affairs before being susceptible to an order under Article 21(1)(d).[47]Whilst the simplicity of Mr Gillis’ argument, based on a strict interpretation of the wording of Article 21(1)(d) carries some appeal, I remind myself that in Rubin, the Supreme Court requires a purposive approach to be employed when interpreting the provisions of the Model Law. They should be widely construed in the light of the Model Law’s objects. The High Court has hitherto been satisfied that there is a sufficiently credible claim on the Applicant’s part to the English Properties to make the APO. As insolvency office holders usually comes as a stranger to the debtor’s affairs, it is by no means uncommon for them to seek to use their Insolvency Act powers to establish whether any further assets fall within the scope of the debtor’s estate. The limitation contended for by Mr Gillis would undermine the purpose of the right given to apply under Article 21.[48]Applying this purposive approach, and bearing in mind that the court has already determined it to be appropriate to make an APO in respect of the English Properties, in my judgment, the Application clearly concerns the Debtors’ “affairs” and should, in any event, be interpreted also to concern their “assets”. (ii) Are the Documents reasonably required to protect the assets of the debtor or the interests of creditors? a) Protecting the assets of the debtor or interests of creditors[49]The Applicant has already commenced the Recovery Proceedings, comprising a detailed claim regarding the English Properties. Despite opposition from the Offshore Companies, the Applicant has secured (and persuaded the Court to continue to secure) the subject matter of that claim by the APO.[50]The evidence in support of the application does not assert any other need for the Documents in order to protect the Debtors’ assets. Mr Gillis submits that consequently, the order cannot be required to “protect” them.[51]Once again, I take into account the purposive approach which the Supreme Court in Rubin held should be adopted when interpreting the Model Law. One of the foundational principles of the Model Law is to promote international cooperation and facilitate efficient resolution of insolvency proceedings. In my judgment, “protecting” the interests of creditors involves taking such steps as the office holder considers necessary to “look after” or “pursue” their interests, in his work to identify, recover and realise assets comprising the debtor’s estate. I am consequently satisfied that the APO does not preclude the Applicant from using his powers to protect the interests of the Debtors’ creditors by obtaining information or documentation that he can persuade the court he reasonably requires. b) Are the Documents reasonably required by the Applicant?[52]It is not in dispute that the subject matter of the Application and the APO cover the same issue, namely the ownership of the English Properties. All bar two of the Saad Group Companies are associated with the English Properties.[53]The Applicant has already commenced the Recovery Proceedings and obtained the APO. Following the order made under Article 21(1)(e), he is now in a position also to pursue the Trust Claim. The Respondent highlights that despite this, the Applicant seeks, in very wide terms, “all documents relating to” the English Properties and that despite obtaining the security of the APO, he has not explained in his evidence why such information and documents are necessary or reasonably required.[54]Mr Gillis submits that the Applicant’s evidence regarding his requirement to see the documents is, on the one hand, scant, and on the other, significant. In his third affidavit dated 29 September 2024, the Applicant explains how he identified the English Properties which he believes form part of the Debtors’ estates and the reasons why he believes that the Respondent was involved in his father’s financial affairs. The Applicant refers to the findings of Sir Ross Cranston and Carr L.J. in the Al-Subaihi proceedings and the use by the Respondent of powers of attorney given to him by his father. He states that it is as a result of these matters that he believes that the Respondent has information relating to the assets and affairs of the Debtors and that such information and documents:
“will assist me in proving my claims in the Recovery Proceedings and in identifying further assets located in Great Britain which belong to the Debtors or properly form part of their estates.”
[55]He concludes his affidavit with a simple assertion that the documents and information he seeks by the Application are necessary to protect the assets of the Debtors.[56]Mr Gillis submits that case law has established that inquisitorial insolvency powers of the sort granted by s.236 should not be permitted to be used to confer an advantage on liquidators in ordinary litigation. The Documents are much wider in scope than those which the Applicant might be able to obtain pursuant to an application for non-party disclosure in the Recovery proceedings. An order made now, pursuant to the Application, would also provide the Applicant with a right to receive documents from the Respondent far earlier than via a non-party disclosure order. These factors, he says, give rise to a “litigation advantage” which should not be permitted.[57]Mr Hunter does not accept that this case falls into the same category as those considered by the court where the insolvency office holder is seen to be seeking to obtain a litigation advantage. As a matter of underlying principle, such advantages are not allowed because it would be potentially oppressive to compel a respondent to provide information that will be used against him in litigation. In this case, the Respondent is not a party to the Recovery Proceedings and it consequently cannot be said that obtaining this information from him gives rise to a litigation advantage against him. There is nothing improper in obtaining information from the Respondent to assist in the Applicant’s claims against the Debtors. To impose such a limitation would, he says, undermine the purpose of s.236 and Article 21(1).[58]Mr Hunter relies also on the Court of Appeal’s judgment in Re British & Commonwealth Holdings Plc [1992] Ch 342, where Ralph Gibson LJ held at 371C that:
“The purpose of the power is not confined to obtaining general information about the company's affairs but may be used to discover facts and documents relating to specific claims against specific persons which the office-holder has in contemplation and it is in itself no bar that the office-holder may have commenced or may be about to commence proceedings against the proposed witness or someone connected with him: see per Slade J. in In re Castle New Homes Ltd., at p. 1080E. (v) Buckley J. in In re Rolls Razor Ltd. [1968] 3 All E.R. 698, 700, g 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. It is, therefore, appropriate for the liquidator, when he thinks that he may be under a duty to try to recover something from some officer or employee of a company, or some other person who is, in some way, concerned with the company's affairs, to be able to discover, with as little expense as possible and with as much ease as possible, the facts surrounding any such possible claim. Normally, it seems to me, the court should seek to assist the liquidator, be he a liquidator in a compulsory winding up or a voluntary one, to carry out his duties in that way.’”
[59]The Applicant here, he submits, is seeking to do precisely that: to discover the truth as cost-effectively and with as much expedition as possible. The fact that proceedings have already been commenced against parties other than the Respondent, should not preclude him from doing so.[60]This, Mr Hunter says, can also be seen from the decision of David Richards J in Daltel Europe Ltd (in liquidation) v Makki (No.1) where the Court considered an application under s.236 for the private examination of Mr Makki against whom the liquidators had already commenced proceedings. At paragraph 23 of his judgment, David Richards J noted:
“The courts have long recognised that an order under section 236 against a person who is being sued by the liquidators is potentially oppressive because it may give the liquidators the advantage, denied to other claimants in our system, of pre−trial deposition evidence. It also carries the danger, in practice, of reversing the onus of proof and requiring a defendant to prove his innocence. These are formidable considerations, all the more so in a case such as the present where allegations of fraud and dishonesty are made. None the less, the need for liquidators to obtain information to enable them to carry out their primary function of identifying and getting in the assets of the company remains. The need for a balance between these factors arises in its most acute form, in a case such as the present, where the respondent appears to be the only realistic source of information.”
[61]After a detailed consideration of the relevant authorities David Richards J continued:
“These passages show clearly that provided that the order for private examination is sought in order to provide the liquidators with information to enable them to carry out their duties as liquidators, especially getting in assets, and provided it is not conducted in a way designed to give them an unfair advantage in the litigation against the respondents, the existence of proceedings (even if they contain very serious allegations) is not a bar to the order.”
[62]Mr Hunter draws from this that even if the Respondent had been a party to the Recovery Proceedings, that would still not be a bar to the order now sought against him, it would simply be a factor to be weighed in the balance. As it is, he is not a party and so cannot be said to be prejudiced by the order sought. It cannot be said to be oppressive for him to be required to provide the information reasonably required by the Applicant.[63]The court’s discretion under s.236 is unfettered. Once the jurisdictional threshold of Article 21(1)(d) has been met, the same, wide discretion comes into play. I concur with Mr Hunter that the authorities show that the commencement of litigation, even against the same party as the respondent to a s.236 claim, is not an absolute bar to the making of an order. It is, as Mr Hunter submits, just one factor to be weighed in the balance.[64]The court must give considerable weight to the views of the office holder regarding his requirement to see the Documents and then weigh that need or requirement against the possible oppression which the Respondent alleges he might suffer, noting that one of the factors which might weigh against making an order, or limiting its scope in some way, is the disruption, stress and expense likely to be caused to the respondent (Picard v FIM Advisers LLP).[65]The Respondent claims in his evidence that as a result of his interest in the Offshore Companies, he has a one sixth interest in the English Properties. Mr Gillis submits that consequently, whilst the Respondent is not a named defendant in the Recovery Proceedings, those proceedings are nevertheless adverse to his interests. Even if that were not the case, the Applicant’s approach to the “litigation advantage” question would expose many liquidators to “missing a trick”: if such an advantage should only be protected against where the s.236 respondent is a defendant (or intended defendant) to the office holder’s claim, then a liquidator would not be constrained from using his Insolvency Act powers in any litigation he wishes to bring. By doing so, he could readily supplement the disclosure rights available to all other litigants and compel an array of parties to provide him with helpful documents, far earlier and covering potentially far wider scope than would otherwise be the case.[66]Mr Gillis also highlights that whilst, in Daltel, David Richards J was prepared to make an order under s.236 notwithstanding that proceedings had already been commenced against Mr Makki, that case concerned an order for private examination. It is, he submits, important for this court to note that when deciding to permit the examination, the Judge was satisfied that it could be conducted in a way that would not be oppressive to Mr Makki:
“The authorities recognise that it may happen (indeed may be inevitable) that answers given will assist the liquidators' prosecution of the proceedings, but provided the questions are directed at issues such as the identity of assets or the nature of liabilities - these are examples only - the questions are permissible.”
[67]In contrast, where the order sought against the Respondent by the Application would require him to deliver a very wide range of documents – all documents relating to the English Properties and the Saad Group Companies – there is no scope for such protective measures to be introduced.

(c) and 1(d) of the draft order)

[68]When undertaking the requisite balancing exercise to help the court determine how to exercise its discretion under Article 21(1)(d) and s.236, the court must consider the purpose for which exceptional powers are given to insolvency office holders.[69]The Applicant asserts in his evidence that he is seeking to fulfil his functions as liquidator to get in the assets of the Debtors: the documents and information which he seeks to obtain from the Respondent are likely to assist in identifying further assets. However, he does not expand upon this and the draft order refers at paragraphs 1(c) and 1(d) only to the English Properties and Saad Group Companies connected with them. The Applicant’s evidence does not explain how the provision of the Documents would assist in identifying any assets which are not already the subject of the Recovery Proceedings. As such, I can give little, if any, weight to his assertion that they may assist in identifying other assets which potentially belong to the Debtors in Great Britain.[70]The Applicant has already identified and laid claim to the English Properties. He expressly states that he believes the Documents will assist in proving his claims in the Recovery Proceedings and that as noted in the authorities, using documents and information obtained under compulsion pursuant to s.236 does not preclude them being used in litigation.[71]Whilst all of the cases cited to me regarding a “litigation advantage” appear to concern scenarios where the respondent to the application is also the defendant (or intended defendant) to the office holder’s claim, I am satisfied that the breadth of the court’s discretion should not be limited to considering a litigation advantage in terms of the oppression that it would cause to the respondent.[72]Putting to one side the Respondent’s alleged indirect interest in the English Properties, in my judgment, when viewed in the context of this case, the litigation advantage which would inure to the Applicant were the court to make the order sought, is relevant when considering what the Applicant needs to establish on his side of the balancing scales. The burden of proof is on him to satisfy the court that he has a reasonable requirement for the Documents. His evidence addressing that requirement refers to his desire to obtain the Documents in order to assist or bolster his claim in the Recovery Proceedings. He is thus seeking to use his extraordinary powers as a liquidator to put himself in a better position than any other litigant in legal proceedings. Whilst the authorities demonstrate that that is not necessarily impermissible, for the court to be able to exercise its discretion, it must examine the reason why such an advantage is sought.[73]The Applicant’s evidence does not explain any particular circumstances of the litigation that would justify him obtaining such an advantage; why he reasonably requires the Documents to be provided now, rather than in the ordinary course of, and pursuant to applications that he could make in the Recovery Proceedings. His evidence explains, in detail, the reasons why he considers the English Properties should be recoverable by him, but however compelling those arguments may prove to be, that is not the issue to be determined on this Application. Not surprisingly in light of the APO, he does not assert that the Documents are needed urgently to protect the English Properties. It seems to me that in cases where such urgency exists, it could weigh quite heavily on an applicant’s side of the balancing scales.[74]However, in this case, in my judgment, the totality of the Applicant’s evidence in support of his Application for the Documents amounts to no more than a desire to obtain them and to do so earlier than would otherwise be possible, in order to improve his chances in the Recovery Proceedings. He fails to establish any reasonable requirement to see them.[75]This leaves very little on the Applicant’s side of the balancing scales and, in my judgment, results in them tipping down in favour of the Respondent. The courts have for many years recognised the inconvenience, cost and oppression potentially suffered by any respondent required to comply with an order under s.236. That inconvenience and oppression can be considered to be justified and part of a respondent’s public duty where the applicant has established a reasonable requirement for the documentation or information he seeks.[76]In this case, the Respondent is being asked to provide a very wide description of documents, which will inevitably require searches to be undertaken and, subject to the court otherwise ordering, costs to be incurred. The Respondent has asserted an (as yet uncontradicted) indirect interest in the Recovery Proceedings in which the Applicant intends to use the documents and it would be unlikely to be in his best interests to volunteer them.[77]In summary, whilst I am content that, interpreting the terms purposively, the Documents concern the Debtors’ affairs and obtaining them could be said to be in pursuit of the Applicant’s duty to protect the interests of the Debtors’ creditors, I am not persuaded that the Applicant’s stated purpose, in the circumstances of this case where litigation is already ongoing, comprises a reasonable requirement for him be entitled to an order compelling their production. If he wishes to obtain them for use in the context of the Recovery Proceedings, the same procedural remedies are available to him as are at the disposal of all other litigants. The English Properties have been secured by the APO and the evidence does not assert any urgent reason for the Documents to be provided any earlier than they might otherwise become available in the Recovery Proceedings. I decline to make an order in the terms sought by paragraphs 1(c) and (d) of the draft order. The two Saad Group Companies unconnected with the English Properties[78]The Respondent explains in his first witness statement dated 14 March 2025 that two of the Saad Group Companies are not connected with the English Properties. However he also states in a document bearing a statement of truth (albeit not in the form of an affidavit, as required by the CBIR) that to the best of his knowledge and belief, he has no documents relating to those companies.[79]In the absence of any evidence that directly contradicts or casts into doubt that statement (other than the Applicant’s reliance upon judicial criticisms in other proceedings to the effect that the Respondent was an unreliable witness – the relevance of which I have already addressed), even if I were minded to have accepted the Applicant’s asserted requirement to see such documents as outweighing other factors, no purpose would be served by making an order requiring the Respondent to deliver up what he has already said in a document bearing a statement of truth, that he does not have.

(e) and 1(f) of the draft order

[80]The form of relief now sought at paragraphs 1(e) and (f) of the revised draft order was agreed between the parties during the course of the hearing. As a result, I am content to make an order in that form.

(b) of the draft order

[81]The Respondent’s evidence is that he has provided copies of all documents relating to transactions undertaken or purportedly undertaken under the powers of attorney which he holds. However, he objects to being ordered to provide “full details of … other acts” which he has taken or purported to take in reliance on those documents. Mr Gillis explains that the powers of attorney were not limited to transactions or acts that had legal consequences and that the Respondent undertook a wide range of acts on behalf of the Debtors, such as writing letters or engaging in conversations. He submits that the Respondent cannot realistically be expected to recall all such acts, particularly as he does not have access to the records he had at the time, and yet, if he fails to do so, he will not have complied with the terms of the order.[82]He proposes that the assurance of full disclosure that the Applicant in fact seeks, can be provided by the Respondent confirming in evidence that as far as he can recall, he did not “undertake any acts pursuant to the powers of attorney that had legal consequences similar to a transaction”.[83]In reply, Mr Hunter described this proposal as a suggestion that the Respondent should certify that he has not been involved in any concealment of assets and in light of judicial criticism of his lack of candour in other proceedings, “he would say that, wouldn’t he”. He submits that I should consequently reject the proposal.[84]This issue only arose at the end of the hearing, with limited debate. Analysing now, each party’s position, the submissions appear to me to highlight different understandings regarding the intended meaning in 1(b) of “other acts”. As Mr Gillis highlights, the wording covers all acts, and yet Mr Hunter’s submissions lead me to infer that what the Applicant actually seeks is details of any steps that might have been taken pursuant to the powers of attorney to assist the Debtors in the concealment of assets. Whilst this is an understandable area of concern for the Applicant, in my judgment, the “all acts” wording creates a sledgehammer to crack the intended nut.[85]To continue the metaphor, I am not yet convinced, however, that the Respondent’s proposed wording (by reference to acts that had legal consequences similar to transactions) are sufficiently targeted towards the same nut. I am optimistic that with further time and the benefit of this judgment, the parties may be able to agree alternative, suitable wording. To the extent that such wording includes the possibility of the Respondent saying that he is not aware of any such “acts” or documents or steps – or whatever other words are to be used - it should include some provision that if, within a specified period of time, such matters do subsequently come to mind or come to light, all relevant information and documentation in relation to the same that is available to the Respondent, will be provided.[86]In the event that it does not prove possible to agree suitable wording, then appropriate directions can be given for the issue to be resolved at a hearing dealing with matters consequential upon this judgment (“Consequentials Hearing”). Privilege[87]The draft order contemplates the parties finding a workable solution to issues of privilege with liberty to apply. I am grateful once again to counsel for their constructive approach to this issue during and following the hearing. At this stage, I see no reason to say anything further about the privilege that may lie in any of the documents covered by the remaining narrow categories that are yet to be disclosed. Confidentiality[88]The Respondent urges the court, in the event that an order is made, to require the Applicant to give an express undertaking to keep confidential any documents disclosed by the Respondent other than the Debtors’ own documents, with liberty to apply to vary or discharge the undertaking. I note that such an undertaking was required in Re Chesterfield United Inc. As this judgment reduces the scope of the disclosure which will be ordered to be given, to the extent that the terms of an order consequential upon the judgment are not agreed, I shall invite submissions on this point at the Consequentials Hearing. Costs The parties’ submissions focussed upon the points I have included in this judgment. Mr Gillis touched very briefly on the costs of compliance with any order the court makes, submitting that despite the public duty of parties to assist an insolvency office holder, the Respondent contends that the Applicant should meet his costs. In light of the much-reduced scope of the order that will be made consequential upon this judgment, and again to the extent that agreement cannot be reached between the parties, I shall invite submissions at the Consequentials Hearing regarding the costs of complying with the order.