Investment bank special administration – the provision of information regarding office holder remuneration

Summary

In the recent case of Re Dolfin Financial (UK) Ltd¹, Chief ICC Judge Briggs gave guidance on the scope of the statutory obligations of special administrators² to provide information regarding their remuneration.  There was no previous authority in respect of these obligations.

Implications for creditors and clients

The obligations upon special administrators³ to:

• provide a statement of their remuneration in their progress report; and
• upon request from a creditor or client, provide further information regarding their remuneration,

do not arise until the basis of the special administrators' remuneration has been fixed. 

From the perspective of creditors and clients of a company in special administration, it is important to remember that the right to challenge the special administrators' remuneration charged does not arise until the basis of that remuneration has been fixed and the remuneration statement included in the relevant progress report.

Creditors and clients who are concerned about the level of remuneration have a statutory right to request further information (ultimately with a view to challenging that remuneration).  However, this right is not absolute and the special administrators may refuse to provide information if they consider that: the time and cost of preparation of the information would be excessive; its disclosure would be prejudicial to the conduct of the administration; or they are subject to an obligation of confidentiality in respect of the information.  The special administrators' decision as to whether to provide the information sought is subjective and cannot be questioned or interfered with by the Court unless irrational or made in bad faith⁴. 

Background

The special administrators of Dolfin Financial (UK) Limited provided certain information regarding this remuneration in their progress reports.  However, the basis of their remuneration had yet to be fixed.  A creditor and client of the company (DASL) expressed concern about the level of this remuneration and requested a line-by-line breakdown.  The special administrators refused to provide such a breakdown and DASL issued an application for further information. 

The Court's decision

The Court considered the relevant statutory provisions and concluded that:

• The obligation to include a statement of remuneration in their progress report arises pursuant to Rule 122(1)(f) IBSAR once the basis of remuneration has been fixed.
• There is no requirement (beyond Rule 122(1)(f)) to provide a statement of remuneration.The IBSAR are prescriptive so that special administrators know with some precision what their duties are when producing a progress report.
• The obligation upon the special administrators to provide further information about their remuneration in response to a request from a creditor or client (under Rule 201(2) IBSAR) relates to the special administrators’ statement made under Rule 122(1)(f). It is not triggered until the basis of remuneration is fixed.The provision of that information prior to fixing the basis is undesirable. It may be irrelevant, and if it is irrelevant, it is also disproportionate.
• The purpose of Rule 201 is to provide transparency.