Paper delivered at the Bar Council Seminar on the Companies Act June 2015

Transcription

1 1 PART 14 OF THE COMPANIES ACT 2014: COMPLIANCE AND ENFORCEMENT NESSA CAHILL Paper delivered at the Bar Council Seminar on the Companies Act June Part 14 of the Act addresses compliance with, and enforcement of, the provisions of the Act and of company law. In its nine chapters, Part 14 covers such topics as the power of the courts to make an order to compel compliance with provisions of the Act; 1 the restriction of directors; 2 disqualification orders; 3 and the categorisation of offences under the Act This Part of the Act reproduces many pre-existing provisions of the Companies Acts and in particular of the Companies Act 1990 (as amended). There are however certain changes in the areas of compliance and enforcement A. DECLARATIONS OF RESTRICTION (a) Burden of proof in restriction applications 3. Under section 150 of the Companies Act 1990 a court was mandated to make a declaration of restriction unless satisfied that the person in respect of whom the declaration was sought acted honestly and responsibly in relation to the conduct of the affairs of the company and there was no other reason why it would be just and equitable that he should be subject to a declaration of restriction In the Companies Act 2014, the new approach to the defences that are open to directors facing restriction proceedings can be seen in section 819(2). This provides that a court shall make a declaration of restriction unless it is satisfied that the conditions set out in sub-sections 819(2)(a), 819(2)(b) and 819(2)(c) are met. The mandatory nature of the declaration and the 1 Chapter 1, Section Chapter 3. 3 Chapter 4. 4 Chapter 7. 5 Companies Act 1990, sections 150(1) and 150(2) (as amended).

2 2 placing of the onus of proof on the director are therefore the same as they existed under the Companies Act 1990 (as amended). 5. This is somewhat surprising in light of the fact that the fairness and the constitutionality of the imposition of this burden of proof on a director has been questioned by the Supreme Court. In re Tralee Beef and Lamb Ltd. 6 Hardiman J considered the restriction provisions and said that, the provisions may be regarded as draconian as [t]he burden is placed upon the respondent to prove, not only that he has acted responsibly and honestly in relation to the company but to prove the negative proposition "(there is no other reason )" set out in the last citation from the statute. He went on to make the following comment about this aspect of section 150: I must confess to some doubt as to whether this blanket reversal of the onus of proof, including a requirement to prove a negative proposition, is consistent with fundamental fairness and constitutional justice. It is certainly in stark contrast to the procedures provided in the United Kingdom for the disqualification of directors, and applied in Re Barings plc (No. 5) [1999] B.C.L.C. 433, cited below and much cited in the judgment of the High Court Judge. There, the Secretary of State (the moving party) was compelled to make detailed written charges in advance of the hearing, so that the respondents and the court knew the case that was being made and required to be answered. 6. In light of the adoption of the same language and approach in the Companies Act, the same concerns persist and may be raised by a respondent to an application under section 819. (b) Grounds for defending restriction applications 7. Rather than lessen the burden on directors, the Companies Act 2014 in fact increases the matters that must be proved by a director seeking to resist an application for a declaration of restriction. To avoid a declaration of restriction, a director must now prove: a. that he acted honestly and responsibly in relation to the conduct of the affairs of the company, whether before or after it became insolvent; b. that he has, when requested to do so by the liquidator, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company and c. that there is no other reason why it would be just and equitable that he or should be subject to a declaration of restriction. "Honestly and responsibly" 8. The requirement to act honestly and responsibly (which was always the standard for defending a restriction application) is now also a standalone requirement imposed on directors 6 In re Tralee Beef and Lamb Ltd., Kavanagh v. Delaney [2008] 3 IR 347 at 355.

3 3 prospectively by section 228(1) of the Act and not only a standard for analysing ex post facto whether the conduct of a director warrants a declaration of restriction. This adoption of the requirement that a director act "honestly and responsibly" as a statutory duty of a director seems sensible, in light of the body of law that has developed around the interpretation of the words "honestly and responsibly". It does however render the analysis quite circular: one of the factors that is relevant to determining whether a director acted honestly and responsibly is whether he complied with his obligations under the Companies Acts. Now, a director will have to demonstrate that he acted honestly and responsibly to demonstrate compliance with his statutory obligations, which will then be one of the matters to be weighed in determining whether he acted honestly and responsibly. It may be more sensible to simply state that a director must demonstrate compliance with his obligations under the Companies Act to avoid restriction. Obligation of cooperation with liquidator 9. The second of the criteria for avoiding a declaration of restriction is new. The court must now be satisfied that the director cooperated with the liquidator. This requirement is subject to three qualifications: first, it only applies to the extent that the liquidator requested the director to so cooperate. Second, it only refers to cooperation in relation to the conduct of the winding up of the company and does not specifically require cooperation in relation to the restriction proceedings. Third, it imposes a requirement to cooperate as far as could reasonably be expected rather than an untramelled and unqualified cooperation obligation. 10. While the requirement to prove cooperation within the meaning of section 819(2) is not an absolute one, it is crucial to understand that in placing this criterion in a sub-category of its own, it is no longer only relevant as one potential factor in assessing whether the director acted responsibly in the conduct of the affairs of the company. In addition to proving that he acted honestly and responsibly, a director must now also show that he cooperated with the liquidator within the meaning of section 819(2)(b), whether or not this has any bearing on the level of his honesty or responsibility in his dealings with the company. Indeed, it may be inferred that the intention of introducing the requirement to prove cooperation is to ensure that cooperation is demonstrated in all cases, even when the liquidator may raise no issue in that regard. 11. While this obligation of cooperation with liquidators was not a standalone statutory feature of restriction applications under the 1990 Act, one of the factors that the courts have often taken into account in assessing whether a director acted honestly and responsibly for the purposes of the restriction regime in place under the 1990 Act was the level of cooperation with the liquidator. 12. It is clear from the judgment of Clarke J in Re CMC (Ireland) Ltd 7 that the interaction between a director and liquidator may be relevant to assessing whether a person should be subject to a declaration of restriction: 7 Re CMC (Ireland) Ltd, Fennell v Carolan [2005] IEHC 59

4 4 I am satisfied that the failure to cooperate at all with the liquidator is a matter which the court can and should take into account. As was pointed out by counsel for the liquidator anything which places a significant barrier in the way of the efficient conduct of the liquidation is likely to lead to a diminution in the extent to which the creditors of the company will be paid. Even if there is no ultimate failure to recover the assets of the company, delay in their recovery can effect the legitimate interests of the creditors not least because an elongation of the liquidation is likely to mean greater costs which all have to come out of the same pool which ought, properly, be available for the creditors. 13. In that case, it was not until after the initiation of the restriction proceedings, almost one year from the commencement of the liquidation, that the directors first met with the liquidator. This failure to cooperate at all was one of the three factors taken into account by the Court in making the declaration of restriction. 14. One point of interest in predicting how section 819(2)(b) may be applied is that courts have shown a willingness to assess the basis of an allegation of non-cooperation. In several cases, the courts have weighed the evidence presented and dismissed allegations of non-cooperation as ill-founded or as irrelevant to the application. In Re Club Tivoli Ltd 8 MacMenamin J assessed the evidence presented on behalf of the liquidator and the director, with the former alleging that the director was uncooperative and difficult to reach and responded to correspondence through his solicitor rather than directly. The director claimed that there was no failure to cooperate. The Court weighed the evidence and rejected the complaints of the liquidator. 15. Similarly, in Re USIT World plc 9 there were complaints of non-cooperation by a liquidator which were denied and dealt with in a detailed way by the director. Peart J declined to examine closely each punch and counter punch in that exchange at this stage but was satisfied on the basis of the evidence presented that while the liquidator for whatever reason felt that he was not receiving cooperation, matters required to be dealt with were dealt with. The Court was also influenced by the fact that there was an offer of a meeting in the event that the liquidator required anything beyond the information already furnished, which offer was still open and could be availed of if the liquidator so wished. Peart J concluded, [o]n balance I am satisfied that nothing disclosed under this heading constitutes a reason why a restriction order should be made against these respondents Re Club Tivoli Ltd Foster v Davies [2005] IEHC Re USIT World plc [2005] IEHC Another example of a case in which the Court rejected allegations of non-cooperation is Re Shellware Ltd., Taite v. Breslin [2014] IEHC 184 per Barrett J: There is suggestion in the pleadings that there was lack of cooperation with the liquidator. This was not canvassed at length at the hearing of this matter and the court in any event finds that Mr. Breslin did substantively cooperate with the liquidator.

5 5 16. The most detailed exposition of allegations of non-cooperation with liquidators and their relevance to a restriction application can be seen in Re MK Fuels Ltd: 11 It is clearly of vital importance that directors of any failed company cooperate with the liquidator of such company and the court will not lightly countenance any want of cooperation in this regard. However, the court is mindful that there will often, perhaps invariably, be an element of strain between the former directors of a failed entity and its liquidator, with the directors perhaps fearful that their commercial decisions will lead to proceedings such as those now before the court and the liquidator naturally desirous of discharging his or her duties competently and well. In addition, there may also be something of a 'culture clash' between business-minded directors accustomed to the rough and tumble of commercial life and professionally qualified liquidators who inhabit a world where documentation and detail are of paramount importance. 17. It can be seen from these cases that the courts frequently approach the question of cooperation with liquidators as one of the factors to be weighed in the balance, but rarely as a determinative one, even when serious allegations are made by the liquidator. 18. One question that does arise is why cooperation with a liquidator, of all of the factors that are weighed and emphasised by the Courts in determining applications for restriction, should be so elevated. It is perhaps surprising that factors such as the extent of a director s responsibility for the insolvency of the company or failures to comply with requirements of the Companies Acts (other than the now-statutory requirement to act honestly and responsibly) have been seemingly relegated below cooperation with the liquidator in terms of significance and relevance to restriction applications. 19. It remains to be seen how section 819(2)(b) will be interpreted and applied in practice, but it certainly elevates the potential importance of cooperation as a standalone criterion, one which may be valuable in the hands of liquidators. As against this, it may be expected that the courts will continue to assess the factual basis of any allegations of non-cooperation and to adopt a practical view of the cooperation that may reasonably be expected from a director. (c) Capitalisation requirements of restricted companies 20. Under the Companies Act 1990 (as amended) a person who was subject to a declaration of restriction could act as a director or secretary or otherwise take part in the formation or promotion of a company, if the company had an allotted share capital of nominal value of not less than 317, in the case of a public company and 63, in the case of any other company, with each allotted share contributing to that aggregate amount to be fully paid up in cash, including the whole of any premium thereon. 12 There was no distinct provision for companies limited by guarantee or investment companies. Three changes are made to these rules. 11 Re MK Fuels Ltd., Cotter v. Gilligan [2014] IEHC 305 per Barrett J. 12 Section 150(3) of the Companies Act 1990 (as amended).

6 6 21. First, there are now specific provisions addressing the capitalisation requirements of companies limited by guarantee and investment companies. In the case of the former, section 819(4) provides that the capitalisation requirements applicable to public and private companies do not apply to companies limited by guarantee. Instead, the company s memorandum of association must specify that the amount of the contribution guaranteed by at least one member of the company is not less than 100, With investment companies, the value of the issued share capital must be not less than 100, and an amount of not less than 100,000 must have been paid in cash in consideration for the allotment of the shares Second, it is now necessary according to section 819(3) that a public company have an allotted share capital of nominal value of not less than 500,000 in value and all other companies have such capital of not less than 100,000 in value, with each allotted share contributing to that aggregate amount to be fully paid up in cash, including the whole of any premium thereon. The reason given for this increase during the Dail debates at Committee Stage was to allow for inflation Third, the Minister has the power under section 835 to make an order increasing the amounts specified in section 819(3). A similar power existed under the Companies Act 1990 (as amended). 17 However the Companies Act now limits the scope of the ministerial powers in two respects: 24. According to section 835(2), any order shall not effect an increase in relation to declarations of restriction made before the commencement of the order. Therefore, a person who is restricted under the Companies Act before any increase is brought into effect, can be a director of a company (other than a public company) which has paid up share capital of 100,000 and that company does not need to increase its capitalisation to comply with any increased capital requirement subsequently introduced by the Minister. This is in line with section 41 of the Company Law Enforcement Act 2001, which similarly ensured that changes to the capitalisation requirements that were brought in by that Act would not apply to persons who were restricted before its commencement date. 25. Further, section 852(3) introduces the wholly new restriction that the Minister may only make an order increasing the level of capitalisation required of a restricted company if it appears to the Minister that the changes in the value of money that have occurred since the date of the commencement of the Act (or the date of any previous order increasing the thresholds) warrant such an increase so as to secure the continued effectiveness of section 819. This appears to be designed to ensure that the paid up shares capital requirements imposed on restricted companies are not rendered more prohibitive by means of increases than at the time 13 This was proposed as 70,000 in the Bill as originally published on 30 May This was proposed as 70,000 in the Bill as originally published on 30 May Section 819(5). 16 Companies Bill 2012: Committee Stage 5 November 2013, per Deputy Sean Sherlock. 17 Section 158.

7 7 of commencement of the Act, but rather are maintained at the same level, with adjustments to reflect inflation only as necessary. (d) Applications for relief from restriction 26. It has always been open to persons who are restricted from acting as directors or secretaries of companies or otherwise from acting in connection with the formation or promotion of a company to apply for relief from such restriction. The Companies Act introduces three changes to these applications. 27. First, under section 152(1) of the Companies Act 1990 (as amended), any application for relief from a declaration of restriction had to be made within one year of the making of that declaration. Section 822 of the Companies Act imposes no such temporal limit on applications for relief. 28. Second, any person who wished to apply for relief from restriction was required to notify the liquidator of the company the insolvency of which gave rise to the declaration of restriction of that application. Under section 822(3) a person who intends to apply for relief must now give at least 14 days' notice in writing of this intention to the Director of Corporate Enforcement as well as the liquidator. 29. Third, the Director of Corporate Enforcement may now appear and give evidence at the application for relief. This is provided by section 822(5). While no such provision existed under the Companies Act 1990, it was the practice of the Courts to allow the Director to become a notice party to applications for relief. In Re CMC (Ireland) Limited 18 Finlay Geoghegan J considered the argument that the legislation excluded the right of the Director to attend and be heard at an application for relief and concluded that, "the Court is not precluded by the terms of s. 152(4) of the Act of 1990 from joining the Director as a notice party if it considers it necessary or desirable in the interests of justice to do so on the facts of this application." 30. So, while the Director could be joined as a party to a relief application under the Companies Act 1990, a motion needed to be issued by the Director for this purpose. Under section 822 such a motion is no longer necessary. B. DISQUALIFICATION ORDERS (a) Automatic disqualification under section Under section 839(1)(a) a person is automatically disqualified if convicted on indictment of "any offence under this Act, or any other enactment as may be prescribed, in relation to a 18 Re CMC (Ireland) Limited, Cosgrave v. Fennell [2005] IEHC 340.

8 8 company". A person is also automatically disqualified under section 839(1)(b) if convicted on indictment of "any offence involving fraud or dishonesty." Under section 160(1) of the Companies Act 1990 a person convicted on indictment of "any indictable offence in relation to a company, or involving fraud or dishonesty" was automatically disqualified. 32. Section 839(1)(a) amends section 160(1) of the Companies Act 1990 by limiting the category of offences which give rise to automatic disqualification. This change means that there will be certainty and clarity as to the statutes which may give rise to automatic disqualification. Until the Minister makes an order prescribing the legislation that is covered by section 839(1)(a), the only enactment that is relevant is the Companies Act. However, it may be noted that under the Companies Act 1990, persons who are convicted of offences under the Competition Act 1991, for example, were subject to automatic disqualification. 19 It may be expected that the Competition Act will be among those to be prescribed by the Minister. This certainty is certainly welcome. 33. However, there is no definition in the Companies Acts or elsewhere of offences in relation to a company or offences involving fraud or dishonesty, both of which terms remain in the Act and furthermore, there is still no requirement in the Act that the offence involving fraud or dishonesty must be an offence in relation to a company or that it must involve the offender s dealings with a company or his position, ability or honesty as a director of a company. 34. One additional amendment that was introduced to the automatic disqualification provisions of the Companies Act 1990 relates to the duration of such disqualification. Under the Companies Act 1990, section 160(1), a person who was automatically disqualified was disqualified from the date of conviction for 5 years "or such other period as the court, on the application of the prosecutor and having regard to all the circumstances of the case, may order". A similar provision is contained in the Companies Act but with two noteable changes. Section 839(2) provides that, "a person disqualified under subsection (1) is disqualified for a period of 5 years after the date of conviction or for such other (shorter or longer) period as the court, on the application of the prosecutor or the defendant, and having regard to all the circumstances of the case, may order." 35. The first change is that the defendant may himself apply for a variation in the period of the disqualification, whereas previously only the prosecutor could do so. Second, it is clarified that the court may order that the period of disqualification be shorter or longer than 5 years. Under section 160(1), in light of the fact that only the prosecutor could make an application to 19 See Competition Authority, Annual Report 2006, at p 9, reporting on the conviction on indictment of JP Lambe on to two counts of aiding and abetting price-fixing. In addition to a sentence of six months imprisonment, suspended for a period of 12 months (the first such custodial sentence under the Competition Act) and a fine of 15,000, which the Competition Authority describe as the largest single fine levied by an Irish court on either an undertaking or individual for a competition law offence, he was automatically disqualified and his name was entered on the register of disqualified persons on 2 October 2006, there to remain until 2 October 2011.

9 9 vary the period of disqualification, it seemed logical that the only revisions would be upwards. Now, however, it is clear that the disqualified person can apply for a reduction in the period of disqualification. (b) Application for relief 36. Under the Companies Act 1990, section 160(8) it was provided that, "Any person who is subject or deemed subject to a disqualification order by virtue of this Part may apply to the court for relief, either in whole or in part, from that disqualification and the court may, if it deems it just and equitable to do so, grant such relief on whatever terms and conditions it sees fit." 37. The procedure applicable to applications for relief from disqualification was not addressed in section 160(8). In Re Clawhammer Ltd, 20 Finlay Geoghegan J noted that s 160(8) would appear to allow a court to grant relief from one aspect of a disqualification order alone, such as the prohibition on involvement in the management of a company. The Court then observed that section 160(8) is not subject to the same notice requirements as are contained in section 152, and that it remains to be seen whether a respondent can ask for relief against part of a disqualification order immediately upon the making of that order. 38. Applications for relief from orders of disqualification, and the procedures applicable to them, are now addressed in section 847 and the uncertainties identified in Re Clawhammer Ltd. are resolved. Section 847(2) provides that an application for relief against a disqualification order must be served on the person who applied for the disqualification order and the Director of Corporate Enforcement. At least 14 days' notice of the intention to make the application must be served on the person who applied for the disqualification order and the Director of Corporate Enforcement. According to section 847(4), if the applicant for the disqualification order was "the liquidator of the company, the insolvency of which gave rise to the application for the disqualification order", on receipt of notice of an application for relief, the liquidator shall as soon as practicable notify the creditors and contributories of which the liquidator is aware. 39. On the hearing of an application for relief from disqualification the Director of Corporate Enforcement and the person who applied for the disqualification order may appear and be heard. If a liquidator was the applicant, any creditor or contributory may also appear and give evidence. 21 (c) Security for costs 40. Under the disqualification regime established by the Companies Act 1990, where an application for a disqualification order was made by a member, contributory, employee or 20 Re Clawhammer Ltd, Director of Corporate Enforcement v McDonnell; Re Shinrone Food Market Ltd, Director of Corporate Enforcement v Hoctor; Re Cautious Trading Ltd, Director of Corporate Enforcement v Forristal (15 March 2005, unreported), HC. 21 Section 847(5).

10 10 creditor of the company, the court could require security for some or all of the costs of the application. 22 According to section 844(5) of the Companies Act, "The court may require a person who makes an application under section 842 to provide security for some or all of the costs of the application." 41. This expands greatly the category of persons who may be required to provide security for costs, as the persons who may make an application under section 842 are all the persons listed in section 844 of the Act, namely the Director of Corporate Enforcement; the Director of Public Prosecutions; the Registrar of Companies; a member, contributory, officer, employee, receiver, liquidator, examiner or creditor of the company to which the application relates. C. RESTRICTION AND DISQUALIFICATION UNDERTAKINGS 42. The most significant amendment to the law governing restriction and disqualification is the introduction in Chapter 5 of Part 14 of the Act of restriction and disqualification undertakings. 43. Restriction and disqualification undertakings have been part of the proposed legislation since the publication of the General Scheme of the Companies Consolidation and Reform Bill in The Company Law Review Group in its Report published in that year noted that During its preparatory work on the drafting of the General Scheme of the Companies Consolidation and Reform Bill, the Review Group observed that in the UK approximately 80% of disqualifications were now made by way of the undertakings procedure. Furthermore, there was no obvious increase in the numbers being disqualified and the costs involved in disqualifying directors by undertaking were substantially less following the introduction of the procedure. It was considered that the availability of a similar procedure in Ireland would reduce unnecessary use of resources in the making of Court applications. Undertakings also had the potential to restrict or disqualify directors in a more expeditious manner. As a result, the Review Group gave endorsement to a proposed head dealing with undertakings. 44. As somewhat different considerations and schemes apply to each, restriction and disqualification will be treated separately here. 22 Section 160(4). 23 Head 51, Part A13.

11 11 (a) Restriction undertakings Interaction between liquidators restriction application and restriction undertakings 45. Restriction is still only available in respect of companies in insolvent liquidation. 24 There will therefore always be, in the first instance, an issue of whether the liquidator is relieved of the obligation to bring restriction proceedings. Presumably (although the Act is silent on this), if the Director intends to propose a restriction undertaking, the Director may relieve the liquidator of the obligation to bring restriction proceedings pursuant to the power conferred by section 683(3) or may postpone making a decision on such relief until a restriction undertaking is given. Neither situation is provided for in the Act. It is therefore unclear how the new restriction undertaking regime will fit within the present regime of applications for declarations of restriction. Grounds for restriction undertakings 46. The next issue is when and on what basis will the Director decide whether to propose a restriction undertaking. It is necessary to consider the provisions of section 852 and 853 to cast light on this. 47. According to section 852(2), where the Director has reasonable grounds for believing that a person falls within the description of the second-mentioned person in section [819](1), namely a person who was a director of an insolvent company within the meaning of Chapter 3 (in this section referred to as the person ), the Director may, in his or her discretion, deliver to the person, or to the person s duly authorised agent, [a restriction notice]. 48. The Director must therefore have reasonable grounds for one belief: that the person in question was a director of an insolvent company. 25 It is important to emphasise that the only matter which the 2014 Act states should form the basis for a restriction notice is the belief that the person in question was a director of an insolvent company. 49. If reasonable grounds exist for this belief, the Director may serve a restriction notice. 50. The restriction notice is described in section 852(3)(a): That notice is a notice in the prescribed form stating...the circumstances, facts and allegations that have given rise to that belief of the Director, citing the provisions of section [819](1) and section [818](1) (and also, where appropriate, section [824]) and stating particulars of those facts and 24 See section 819(1). 25 Director of an insolvent company is defined in Chapter 3, section 818 as a person who was a director or shadow director of an insolvent company at the date of, or within 12 months before, the commencement of its winding up.

12 12 allegations (and the circumstances so stated, and those facts and allegations, of which particulars are so stated, are referred to together in this section as the underlying facts and circumstances ). 51. Therefore the only information about the Director's belief which, according to the Act, should be in the notice relates are particulars of the circumstances, facts and allegations that have given rise to the belief that the individual in question was a director of an insolvent company. This is confirmed by the references to section 819(1) and 818(1), both of which deal with the directors of insolvent companies. 52. It is quite clear from the provisions of the Act that the notice is not premised on and does not include a belief that the director did not act dishonestly or irresponsibly; that he failed to cooperate with the liquidator; or that it is just and equitable that he be restricted, or any facts, allegations or circumstances relevant to such beliefs. On the contrary, a restriction notice under the Act will call on an individual to accept restriction on the bald basis that he was a director of an insolvent company. 53. However Statutory Instrument 222 of 2015 introduces the forms to be used for restriction and disqualification undertakings and it states that the restriction notice must include a statement of the opinion of the Director that a period of restriction is warranted and the reasons for this belief and opinion. It is not at all clear how this implements the clear terms of the Act, and on the contrary there does seem to be a basis for arguing that the SI goes beyond the scope of the primary legislation. Procedure of restriction undertakings 54. The restriction notice shall specify a date on which the restriction will come into effect (if accepted by the individual) and shall also specify a defined period that will commence at least 21 days from the issue of the notice and expire just before the date of commencement of the restriction, which date may be extended on the application of the individual (referred to as the notice period ). 26 During this period, the individual must notify the Director of his willingness or otherwise to give a restriction undertaking and must return a signed restriction acceptance document. 27 Consequences of restriction undertaking 55. When a restriction undertaking has been given, the Director shall as soon as practicable (a) furnish all requisite particulars to the Registrar of Companies for entry in the register of restricted persons; and (b) execute a restriction acceptance document and furnish a copy of that document and notify the particulars given to the Registrar to the restricted person Sections 852(3)(b) and (c) and section 582(5). 27 Section 852(3)(c). 28 Section 853(3).

13 A person who gives a restriction undertaking shall be deemed, for the purposes of this Act, to be subject to a restriction declaration. 29 The restriction notice must state that... if the person gives a restriction undertaking a. the person may seek to be relieved (whether in whole or in part) from the undertaking only by applying to the court under section [822]; and b. that, on the making of such an application, the court may grant such relief only if it considers it just and equitable to do so, and then only on the terms and conditions as it sees fit The Act states that this information must be included in the restriction notice, but there is no provision of the Companies Act confirming that a person who gives a restriction undertaking can apply for relief under section 822. Section 822(1) refers to relief in whole or part from a declaration of restriction under section 819(1) or an order under section 821(2)(b), but makes no reference to relief in the case of restriction undertakings under section Assuming that a person who is deemed to be restricted can apply for relief, such person having received a restriction notice from the Director stating grounds for believing he was a director of a company in insolvent liquidation, may accept that restriction, and then apply promptly to court for relief against the restriction on the ground it is just and equitable for such relief to be granted. The proofs for the restriction undertaking being limited to information about a directorship (as the Act envisages) would seem to make it easier to argue a case for relief under section 822. This is further underlined by the fact that (a) there is no provision of the Act requiring a person who gives a restriction undertaking to admit any irresponsibility or dishonesty or the existence of any grounds for restriction and (b) whereas the costs that can be awarded against a director following a contested restriction application can include the costs and expenses of the investigation, there is no such possibility on an application for relief. It seems difficult to imagine a case where it would not make sense to take the restriction undertaking and then apply for relief from same. 59. This issue is complicated by the provisions of SI 222 of According to that measure, a director must state that he does not dispute the reasons, facts and circumstances set out in the restriction notice which, according to the SI, must include a statement of the facts and circumstances relied upon to demonstrate restriction is warranted. SI 222 of 2015 also states that the Director reserves the right to adduce additional facts and evidence at an application for relief to those disclosed in the restriction notice. 60. None of these aspects of the restriction notice, as provided for by SI 222 are provided for in the Act. However, these provisions (rather than any provisions of the Act itself) may make accepting an undertaking and then applying for relief a less attractive proposition. 29 Section 853(5)(b) 30 Section 852(4)(c).

14 14 (b) Disqualification undertakings Background 61. On an application under s 842 of the Act as under s 160(2) under the Companies Act 1990, the court enjoys full discretion in determining whether to make an order of disqualification and the appropriate period of disqualification. 62. The Courts have commented on the absence of a procedure under s 160 for a respondent to furnish an undertaking not to be involved in companies in the manner prohibited by disqualification orders. In Director of Corporate Enforcement v Curran, 31 Mr Curran submitted that the DCE did not contact him before initiating the disqualification proceedings to seek information regarding his future plans or inviting an undertaking as to the level of responsibility he would take in any business in which he might be involved. 32 Murphy J made the following observation: The question arises whether the legislation should be amended with a view to compelling the Director to require an undertaking from such a director/officer. There would appear to be no provision whereby such undertaking could be a matter of public record. It could be noted by the Director of Corporate Enforcement and/or by the Company Registration Office. It would be an immediate remedy and a saving in court time and of costs In England, it has been possible since 2001 for a person to give an undertaking in the terms of a disqualification order for such period between two and fifteen years as may be agreed Chapter 5 of Part 14 of the Companies Act now introduces disqualification undertakings into Irish company law. The provisions are similar to those that apply to restriction undertakings, but differ in some significant respects. Grounds for disqualification undertakings 65. According to s 850(2), where the Director of Corporate Enforcement has reasonable grounds for believing that one or more of the circumstances specified in section [842](a) to (i) applies to a person the Director may, in his or her discretion, deliver to the person a disqualification notice. 66. The grounds that are specified in s 842(a) to 842(i) are the grounds on which an order of disqualification may be made and replicate the provisions of section 160(2) of the Companies Act 1990 (as amended). If the Director has reasonable grounds for believing one of those grounds to exist, he must set out in the disqualification notice which of the grounds he 31 Re National Irish Bank Ltd, Director of Corporate Enforcement v Curran [2007] IEHC Re National Irish Bank Ltd, Director of Corporate Enforcement v Curran [2007] IEHC 181 at para Re National Irish Bank Ltd, Director of Corporate Enforcement v Curran [2007] IEHC 181 at para See DTI, Fast Track Disqualifications results in Record Bans (2 January 2002).

15 15 believes to apply and particulars of the facts and allegations that give rise to that belief. The notice must also state the period of disqualification. It is important to note that the Director cannot send a disqualification notice, where he believes that a period of disqualification of more than five years is warranted. 35 Disqualification notice 67. The disqualification notice shall state that, for a period commencing at least 21 days after the date of the notice and ending on the date on which the disqualification period would commence, 36 the person in question may notify the Director of his willingness to give the undertaking and return an executed disqualification acceptance document According to s 850(3)(e), the notice shall state that, during the notice period, the Director will refrain from making an application in respect of the person under section [842] arising from or in connection with the underlying facts and circumstances. There are two things to observe here. First, it would leave the Director free to commence disqualification proceedings in the 21-day period from the issue of the notice. Second, it does not refer to or preclude proceedings being initiated by another person, such as a liquidator, receiver, member, contributory, examiner, creditor, officer, employee, or indeed the Director of Public Prosecutions or Registrar of Companies, all of whom have statutory standing to bring such an application under s 844. While a person is considering and taking advice as to whether to give a disqualification undertaking to the Director, disqualification proceedings could be commenced by any one of these individuals. What should happen in that circumstance is not clear from the Act, although it is difficult to see how the issue of a disqualification notice could trump the issue of court proceedings by a person who has standing under the Act to issue such proceedings. 69. This is addressed to some extent by s 851(1): Where a notice is delivered under section [850](2), the Director and every person who is aware of the notice shall not, during the notice period, make an application under section [842], arising from or in connection with the underlying facts and circumstances, in respect of the person who is the subject of the notice. 70. The effect of this provision on other applicants for disqualification depends on such persons being aware of the notice, without, however, specifying how such persons are to be made aware of the notice and how such awareness is to be demonstrated. It is easily conceivable that a member/director/liquidator could issue proceedings while an individual is considering how to respond to a disqualification notice from the Director of Corporate Enforcement. The operation of this provision may be problematic for persons who wish, for example, to seek disqualification in conjunction with other reliefs in civil proceedings. 35 See s 851(6). 36 This period may be extended on the application of the person in receipt of the notice. See s 850(5). 37 Section 850(3).

16 Section 851(4)states: After the expiry of the notice period, neither the Director nor any other person shall make an application under section [842], arising from or in connection with the underlying facts and circumstances, in respect of the person who has given the restriction undertaking. 72. There is therefore no ambiguity but that an individual who gives a disqualification undertaking cannot be subject to a disqualification application brought by any person arising from the same grounds and facts that gave rise to the undertaking. Consequences of a disqualification undertaking 73. When a disqualification undertaking has been given, the Director shall as soon as practicable (a) furnish all requisite particulars to the Registrar of Companies for entry in the register of disqualified persons; and (b) execute a disqualification acceptance document and furnish a copy of that document and notify the particulars given to the Registrar to the disqualified person A person who gives a disqualification undertaking shall be deemed, for the purposes of this Act, to be subject to a disqualification order. 39 It may be noted that the disqualification notice must state that:... if the person gives a disqualification undertaking (i) the person may seek to be relieved (whether in whole or in part) from the undertaking only by applying to the court under section [847]; and (ii) that, on the making of such an application, the court may grant such relief only if it considers it just and equitable to do so, and then only on the terms and conditions as it sees fit The Act states that this information must be included in the disqualification notice, but there is no provision of the Companies Act which confirms expressly that a person who gives a disqualification undertaking can apply for relief under s SI 222 of 2015 provides the forms for restriction and disqualification undertakings. One of the matters included in the form which is not provided for in the Act is the requirement that a person who completes a disqualification acceptance form must not dispute the matters stated therein, including the facts and circumstances that are relied upon to justify the relevant belief of the Director that disqualification is warranted. 38 Section 851(3). 39 Section 851(5)(b). 40 Section 850(4)(c).

17 The SI also states that the Director reserves the right to oppose any applications for relief and to adduce additional facts and circumstances at any such application. D. ENFORCEMENT OF RESTRICTION AND DISQUALIFICATION UNDERTAKINGS 78. The enforcement of restriction and disqualification undertakings is not addressed specifically by the Act. According to s 851(5)(b), a person who gives a disqualification undertaking shall be deemed, for the purposes of this Act, to be subject to a disqualification order. Section 853(5)(b) similarly provides that a person who gives a restriction undertaking shall be deemed, for the purposes of this Act, to be subject to a restriction declaration. 79. However, it seems a big step to apply the enforcement provisions and sanctions of Chapter 6 of Part 14 of the Act to persons who were not the subject of court proceedings of any form. This is particularly so when one considers that a person could face criminal prosecution and liability for the debts of the company if found to have contravened a restriction declaration or disqualification order. As against this, if the same enforcement provisions that apply to restriction declarations and disqualification orders are not applied in the case of restriction and disqualification undertakings, the latter will be deprived of any weight. 80. In this regard, it seems that the enforcement provisions of Chapter 6 are not specifically adapted to dealing with restriction and disqualification undertakings. First, some of the provisions dealing with enforcement refer specifically to declarations or orders made under s 819 or 842, which does not seem broad enough to encompass an undertaking under s 851 or As against this, it may be that a person being deemed to be subject to a restriction declaration or disqualification order for the purposes of this Act will be interpreted so as to allow a Court to find that such person is in fact deemed to be subject to an order under a specific provision of the Act, namely s 819 or Second, s 855(5) which deals with enforcement does contain certain technical provisions regarding the use of words deemed to be subject to for the purposes of the enforcement provisions of Chapter 6. However, it is reasonably clear that these words do not apply to restriction and disqualification undertakings. The enforcement of such undertakings is not therefore provided for in clear or explicit terms by the Act at present. However, as against this, a Court may find that the effect of s 851(5)(b) and s 853(5)(b) is that a person is already deemed to be subject to restriction or disqualification and is not solely so deemed under Chapter The lack of any explicit provision stating that the enforcement provisions of Chapter 6 do apply to restriction and disqualification undertakings, may be informed by a consideration of the relevant background to the legislation. In introducing the regime for restriction and 41 See for example s 858 and 855(1)(b).

18 18 disqualification undertakings the Company Law Review Group was very mindful of potential constitutional issues. As the 2007 Report records: The first issue is whether, as a matter of constitutional law, it was appropriate to have a system of consent orders under which a non-judicial personage (the Director of Corporate Enforcement) would be conferred with a function of accepting undertakings which would have the effect of deeming a person to be restricted or disqualified. Is such an act executive or administrative (and accordingly, one that can properly be vested in the Director) or does it represent an exercise of a judicial power (and, accordingly, one which Article 34.1 of Bunreacht na héireann vests exclusively in the Courts, subject only to the right of the Oireachtas to confer limited judicial powers on non-judicial personages in non-criminal cases in the manner contemplated by Article 37.1 of the Constitution)?... In the light of these concerns, the Review Group considered and concluded that (a) the powers presently vested in the High Court under section 150 and section 160 of the 1990 Act are judicial in nature; (b) given that the effect of such a disqualification order or even a restriction order is to restrict the director in question from following a particular vocation, trade or career and further impacts adversely on his or her reputation, these powers could not be regarded as being limited for the purposes of Article 37.1 of the Constitution; (c) it follows that these powers could not be exercised in contested cases by a non-judicial personage such as the Director of Corporate Enforcement, and legislation which proposed to transfer such functions to the Director in respect of such cases could be found to be unconstitutional; and (d) while the issue of whether the Director could be vested with such a jurisdiction in consent cases is far less clear-cut than in the case of contested applications, the Review Group remained of the view that it could not safely be concluded that this jurisdiction in such cases could be so transferred. This is in part due to the fact that the making of these orders even by consent concerns issues of status and operate in rem. A Court would, for example, have a jurisdiction to decline to make such orders (even where the making of such an order was by consent), where it considered that, for example, the director was not properly advised or there was duress. The Review Group considers that a potential solution to this problem, which would not require or involve the Court process, would be to offer the director or other person the opportunity of submitting to a disqualification or restriction pursuant to a statutory contract, the effect of which would be that the person would be disqualified or restricted from holding a directorship in the manner akin to the present section 150 or section 160. It might further be provided that an agreement of this kind would