Nature of Examinership I Examinership seeks to save a fundamentally sound business which is insolvent, in a manner that is not unfair to other interested parties. A company may be insolvent where it is unable to pay its debts as they fall due or where its liabilities are greater than its assets, including contingent liabilities. It is deemed insolvent if it […]
Petition for Examinership A petition for examinership may be made by the company itself, its directors, any creditor or least one-tenth in value of its shareholders. The Central Bank only, may petition for examinership in the case of an insurer, a bank and a range of other financial services sectors, intermediaries and service providers. The petition is presented to the […]
Access to Information Examiners are entitled to access to the company’s books, account and records. They may require persons to give sworn evidence regarding the affairs of the company. Directors, secretaries and other officers of the company are obliged to co-operate with the examiner. The may be required to attend and may be examined on oath, either verbally or by […]
Investigative Powers An examiner has powers to make investigations for the purpose of the formulation of his report and recommendations. The court may order the examiner to investigate particular matters, including, in particular, alleged default on the part of directors. The examiner has the rights and powers of a statutory auditor of a company and the obligation to supply information […]
Proposals The principal function of the examiner is to examine the affairs of the company and to formulate proposals for its survival as a going concern. The proposals must be formulated as soon as practicable. This should generally be done within 30 days. A report must be made to the Court within 35 days. At least three days’ notice must […]
Overview The company as distinct from the examiner may, with court approval, repudiate uncompleted contracts to which it is a party where there are proposals for a compromise or scheme of arrangement. Parties who suffer loss as a result of repudiation become an unsecured creditor for the amount of the loss. On application, the court may determine the amount concerned […]
Examiner’s Report Following the meetings of the members and creditors, the examiner prepares a report for the court. This sets out the details of proposals, any modifications, the recommendations of the committee of creditors, the resolutions passed in meetings, a statement of assets and liabilities, a list of creditors and the amount owing, the examiner’s recommendations, certain other matters. The […]
Reasonable Prospects There must be a reasonable prospect of the survival of the company and the whole or part of its undertaking as a going concern. A company may be a going concern, even if it has not actively traded in the very recent past because of financial constraints, provided that there is a prior trading record. There must be […]
Examiner and the Directors I The examiner is an officer of the court. He is under the control of the court and owes duties of utmost good faith to it. The principal function of the examiner is to investigate the affairs of the company and prepare a report about its prospective survival or otherwise. The report is made for the […]
2021 Act Provisions The purpose of the Companies (Rescue Process for Small and Micro Companies) Act is to provide an alternative to examinership, for the benefit of small and micro companies, which is more accessible and cost efficient than the existing examinership process and capable of conclusion within a shorter period of time and to assist viable small and micro […]
Rescue Plan The process adviser must formulate a rescue plan for the company. It provides for the detail which must be included in the plan, including how it is to be implemented. The process adviser is required to treat all classes of creditors and members fairly, i.e. the rescue plan may not be unfairly prejudicial to any one class of […]
Production of Documents and Evidence There are provisions in relation to the production of such documents and evidence. The process adviser is empowered to request documents which they consider relevant. For example, records concerning bank accounts into or out of which transactions may have taken place which pertain to the affairs of the company. The process adviser has power to […]
S.I. No. 380/2022 – European Union (Preventive Restructuring) Regulations 2022 I, LEO VARADKAR, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive (EU) 2019/1023 of the European Parliament and of the Council of […]