ASSISTING FOREIGN INSOLVENCY PRACTITIONERS IN CROSS-BORDER INSOLVENCY: SOME FOREIGN INSIGHTS INTO SOUTH AFRICAN LAW Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda) [2014] UKPC 36 (10 November 2014), [2015] 2 WLR 971

Abstract

The related companies Saad Investments Company Limited and Singularis Holdings Ltd were registered in the Cayman Islands and audited by PricewaterhouseCoopers (“PwC”). When the Grand Court of the Cayman Islands wound them up, it ordered PwC, as a person relevantly connected to them, to deliver or transfer to their joint official liquidators (“JOLs”) any property or documents belonging to those companies (s 103 of the Companies Law). The reason that the JOLs pursued PwC was that the Saad group had withdrawn property to Saudi Arabia. The JOLs in Singularis were not satisfied with what they had received from PwC under this order. They thought that Singularis should have had even more property, which they sought information about from PwC’s working papers. For this purpose, the JOLs considered section 195 of the Companies Act 59 of 1981 in Bermuda, where the relevant branch office of PwC was registered. This more promising provision applied if a provisional liquidator had been appointed, or a liquidation order made in Bermuda. These officers or persons might be interrogated and required to “produce any books or papers in [their] custody or power relating to the company”. Kawaley CJ issued an order in the Supreme Court of Bermuda, recognising the Cayman court’s appointment of the JOLs. He also “exercised a common law power ‘by analogy with the statutory powers contained in section 195’”. PwC and a named officer had to produce the documents that the court could have ordered them to produce under section 195. PwC also had to make its staff or agents available to answer questions. The JOLs could even serve papers on a named PwC partner, or any other partner outside Bermuda. The Court of Appeal for Bermuda overturned his decision, and the JOLs appealed to the Judicial Committee of the Privy Council. PwC argued that only it owned its working papers. Auditors are “notoriously insistent” that their clients do not. They fear professional negligence claims if their working papers are scrutinised.