Compliance
Companies Act
Court may order compliance by company or officer
797. (1) This section applies if a company or an officer of a company—
(a) has failed to comply with a provision of this Act, and
(b) the company or officer has failed to remedy the default within 14 days (or such longer period as may be specified in the notice) after the date of service by any person referred to in subsection (3) on the company or officer of a notice requiring the company or officer to remedy the default.
(2) In any case to which this section applies, the court, on the application of a person specified in subsection (3), may order the company or officer in default to remedy the default within such time as the court specifies.
(3) The court may make the order only on the application of one of the following:
(a) any member of the company;
(b) any creditor of the company;
(c) the Director; or
(d) the Registrar.
(4) In making an order under subsection (2), the court may order that the company or the officers responsible for the default pay all costs of and incidental to the application.
(5) Subject to subsection (6), no order may be made under this section in relation to a default that, in the opinion of the court, constitutes a wrong done to the company an action in respect of which, under the general law, is maintainable by the company alone, as distinct from another by derivative proceedings.
(6) Subsection (5) does not apply if the facts constituting the default in question amount, in the opinion of the court, to the commission of an offence.
(7) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties (including restriction under Chapter 3 of this Part and disqualification under Chapter 4 of this Part) on a company or its officers in respect of the default in question.
(8) In this section, “officer” means director, shadow director, promoter, receiver, liquidator, statutory auditor or secretary.
Court may restrain directors and others from removing assets
798. (1) The court may make an order restraining a director or other officer of a company, or a company, from—
(a) removing his or her or the company’s assets from the State, or
(b) reducing his or her or the company’s assets within or outside the State below an amount specified in the order.
(2) The court may make the order if it is satisfied that—
(a) the applicant has a qualifying claim, and
(b) there are grounds for believing that the director or officer, or the company, may remove or dispose of his or her assets or the assets of the company with a view to evading his or her obligations or those of the company and frustrating an order of the court.
(3) The court may make the order only on the application of—
(a) the company,
(b) a director, member, liquidator, receiver or creditor of the company, or
(c) the Director.
(4) In subsection (2)(a), “qualifying claim” means a claim that—
(a) is a substantive civil cause of action or right to seek a declaration of personal liability or to claim damages against the director, officer or company, and
(b) arises—
(i) under this Act, or
(ii) under the constitution of the company, or
(iii) from the holding of an office of the company.
Disclosure orders
Interpretation (Chapter 2)
799. (1) In this Chapter—
“disclosure order” means an order under section 800 ;
“share acquisition agreement” has the meaning given to it by section 808 .
(2) Any reference in this Chapter to share capital or relevant share capital in relation to a company is a reference to share capital that confers the right to vote in all circumstances at a general meeting of that company, and a reference to share shall be read accordingly.
Court may make disclosure order
800. (1) On the application of—
(a) any person who has a financial interest in a company, or
(b) the Director,
the court may make an order specified in section 801 in respect of all or any of the shares in or debentures of the company.
(2) An application under this section shall be supported by such evidence as the court may require.
(3) The court may make a disclosure order only if the court considers that—
(a) it is just and equitable to do so, and
(b) in the case of an application made other than by the Director, the financial interest of the applicant is or will be prejudiced by the non-disclosure of any interest in the shares in or debentures of the company.
(4) The court may, before hearing an application under this section, require the applicant to give security for the payment of the costs of hearing the application or any consequential proceedings.
(5) If an application is made under this section by the Director then there are not available to the Director—
(a) the powers under section 764 (1) as regards appointing one or more competent inspectors to investigate and report on any matter in so far as such investigation and reporting would relate to the same shares or debentures of the company in question, or
(b) the powers under section 767 to require information as to persons interested in shares or debentures, being the same shares or debentures of the company in question,
as the application under this section relates to.
(6) Section 809 confers additional powers on the court for the purposes of ensuring that disclosure of the information sought, in cases of share acquisition agreements, is achieved.
(7) For the purposes of this section, “financial interest” includes any interest as member, contributory, creditor, employee, co-adventurer, examiner, lessor, lessee, licensor, licensee, liquidator or receiver either in relation to the company in respect of whose shares or debentures the disclosure order is sought or a related company.
Types of disclosure order
801. The court may make an order under section 800 (1)—
(a) requiring any person whom the court believes has or is able to obtain all or any of the following information to disclose to the court so much of that information that the person has or is able to obtain:
(i) the names and addresses of persons currently interested, or interested at any time during a period specified in the order, in the shares in or debentures of a company; and
(ii) the name and address of any person who acts or has acted on behalf of any of those persons in relation to the shares or debentures;
(b) requiring any person whom the court believes to be currently interested, or to have been interested at any time during a period specified in the order, in the shares in or debentures of a company—
(i) to confirm or deny that that is the case, and
(ii) if confirming, to disclose such further information as the court may require,
or
(c) requiring a person interested in the shares in or debentures of a company specified in the order to disclose in respect of those shares or debentures to the court—
(i) the information required in paragraph (a)(i) to (ii), and
(ii) such further information as the court may require.
Procedure on application for disclosure order
802. (1) A person intending to apply for a disclosure order shall give not less than 10 days’ notice of the intention to apply to—
(a) the company in respect of whose shares or debentures the order is sought, and
(b) the person to whom the order is to be directed.
(2) If, on that application, it is intended also to apply for an order under section 809 , not less than 10 days’ notice of the intention to apply for such an order shall be given by the applicant to the person to whom that order is to be directed.
(3) Without prejudice to subsection (2), the applicant shall also serve on any person specified by the court such notice of the application as the court may direct.
(4) On the hearing of the application every person notified under subsection (1), (2) or (3) may appear and adduce evidence.
Scope of disclosure order
803. (1) A disclosure order may require the person to whom it is addressed—
(a) to give particulars of that person’s own past or present interest in shares comprised in the share capital of the company or in debentures of the company held by that person at any time during the period specified in the order,
(b) where that person’s interest is a present interest and any other interest in the shares or debentures subsists, to give such particulars of that other interest that are—
(i) required by the order, and
(ii) within that person’s knowledge,
(c) where another interest in the shares or debentures subsisted at any time during the period specified in the order when the person’s own interest subsisted, to give such particulars of that other interest that are—
(i) required by the order, and
(ii) within that person’s knowledge,
(d) where that person’s interest is a past interest, to give those particulars, that are within his or her knowledge, of the person who held that interest immediately after him or her.
(2) A disclosure order shall specify the information to be given to the court under the order in respect of any person, shares or debentures to which it refers and such information shall be given in writing.
(3) Section 807 supplements subsection (2) as regards particular information to be given in cases of share acquisition agreements.
(4) For the purposes of this section, and without prejudice to sections 804 to 808 , an interest in shares in or debentures of a company includes a present or past right, or entitlement to acquire a right, to subscribe for shares or debentures if, on the basis that those shares or debentures would be, or (as the case may be) would have been, comprised in the share capital of the company or issued by it, as the case may be.
Interests in shares and debentures for purposes of section 803: general
804. (1) Without prejudice to the subsequent provisions of this Chapter, this section applies to the construction, for the purposes of—
(a) section 803 , and
(b) the subsequent sections of this Chapter as they relate to any spouse, minor child, body corporate or a party to an agreement,
(in this section referred to, respectively, as the “relevant purposes” and the “relevant sections”) of references to—
(i) a person’s being interested in shares or debentures, or
(ii) an interest in shares or debentures.
(2) For the relevant purposes, a reference to an interest in shares or debentures in the relevant sections is to be read as including an interest of any kind whatsoever in the shares or debentures.
(3) Accordingly there are to be disregarded any restraints or restrictions to which the exercise of any right attached to the interest is or may be subject.
(4) Where property is held on trust and an interest in shares or debentures is comprised in the property, a beneficiary of the trust who, apart from this subsection, does not have an interest in the shares or debentures, as appropriate, is to be taken, for the relevant purposes, as having such an interest; but this subsection is without prejudice to the following provisions of this section.
(5) A person is taken, for the relevant purposes, to have an interest in shares or debentures if—
(a) the person enters into a contract for their purchase by him or her (whether for cash or other consideration), or
(b) in the case of shares, not being the registered holder of the shares, the person is entitled to exercise any right conferred by the holding of the shares or is entitled to control the exercise of any such right.
(6) For the purposes of subsection (5)(b), a person is entitled to exercise or control the exercise of any right conferred by the holding of shares if the person—
(a) has a right (whether subject to conditions or not) the exercise of which would make him or her so entitled, or
(b) is under an obligation (whether so subject or not) the fulfilment of which would make him or her so entitled.
(7) For the relevant purposes, a person is taken to have an interest in shares or debentures if, otherwise than by virtue of having an interest under a trust, the person has a right to acquire an interest in shares or debentures, as appropriate, or is under an obligation to take an interest in shares or debentures, as appropriate, whether in any case the right or obligation is conditional or absolute.
(8) Without prejudice to subsections (2) and (3), rights or obligations to subscribe for any shares shall not be taken for the purposes of subsection (7) to be rights to acquire, or obligations to take, any interest in shares.
(9) Where persons have a joint interest, each of them shall be taken, for the relevant purposes, to have that interest.
Family and corporate interests
805. (1) For the purposes of section 803 , a person is taken to be interested in any shares or debentures in which the person’s spouse or civil partner or any child (who is a minor) of the person is interested.
(2) For the purposes of section 803 and subsection (1), a person is taken to be interested in shares or debentures if a body corporate is interested in them and—
(a) that body or its directors are accustomed to act in accordance with his or her directions or instructions, or
(b) he or she is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of that body corporate.
(3) Where a person is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of a body corporate and that body corporate is entitled to exercise or control the exercise of any of the voting power at general meetings of another body corporate (the “effective voting power”) then, for the purposes of subsection (2)(b), the effective voting power is taken as exercisable by that person.
(4) For the purposes of subsections (2) and (3) a person is entitled to exercise or control the exercise of voting power if—
(a) the person has a right (whether subject to conditions or not) the exercise of which would make him or her so entitled, or
(b) the person is under an obligation (whether or not so subject) the fulfilment of which would make him or her so entitled.
(5) A reference in this section to a child of a person shall be deemed to include a reference to a child of the person’s civil partner who is ordinarily resident with the person and the civil partner.
Share acquisition agreements — attribution of interests held by other parties
806. (1) In the case of a share acquisition agreement, each party to the agreement shall be taken, for the purposes of section 803 , to be interested in all shares in the company in which any other party to it is interested apart from the agreement (whether or not the interest of the other party in question was acquired, or includes any interest which was acquired, in pursuance of the agreement).
(2) For those purposes, an interest of a party to such an agreement in shares in the company is an interest apart from the agreement if the party is interested in those shares otherwise than by virtue of the application of this section and section 808 in relation to the agreement.
(3) Accordingly, any such interest of the person (apart from the agreement) includes for those purposes any interest treated as his or hers—
(a) under the preceding provisions of this Chapter, or
(b) by the application of this section (and section 808 ) in relation to any other agreement with respect to shares in the company to which he or she is a party.
Particulars of interests referred to in section 806 to be given in compliance with disclosure order
807. In addition to the particulars (if any) to be given otherwise by the person in compliance with such order, the particulars given, in compliance with a disclosure order, with respect to his or her interest in shares in the company by a person who is, or (as the case may be) was at any time in the period specified in the order, a party to a share acquisition agreement shall—
(a) state that the person is or (as the case may be) was at a particular time a party to such an agreement,
(b) include the names and (so far as known to him or her) the addresses of the other persons who are or (as the case may be) were at a particular time parties to the agreement, identifying them as such, and
(c) state whether or not any of the shares to which the particulars given in compliance with the disclosure order relate are shares in which he or she is or (as the case may be) was interested by virtue of sections 806 and 808 and, if so, the number of those shares.
“Share acquisition agreement” — meaning
808. (1) Subject to the following provisions of this section, “share acquisition agreement”, for the purposes of this Chapter, means an agreement between 2 or more persons which includes provision for the acquisition by any one or more of the parties to the agreement of interests in shares comprised in the share capital of the company concerned but only if the following 2 conditions are satisfied.
(2) Those conditions are—
(a) the agreement also includes provisions imposing obligations or restrictions on any one or more of the parties to the agreement with respect to their use, retention or disposal of interests in that company’s shares acquired in pursuance of the agreement (whether or not together with any other interests of theirs in that company’s shares to which the agreement relates), and
(b) any interest in the company’s shares is in fact acquired by any of the parties in pursuance of the agreement.
(3) The reference in subsection (2)(a) to the use of interests in shares in the company is to the exercise of any rights or of any control or influence arising from those interests (including the right to enter into any agreement for the exercise, or for control of the exercise, of any of those rights by another person).
(4) Once any interest in shares in the company has been acquired in pursuance of such an agreement as is mentioned in subsection (1), the agreement continues to be a share acquisition agreement for the purposes of this Chapter irrespective of—
(a) whether or not any further acquisitions of interests in the company’s shares take place in pursuance of the agreement, and
(b) any change in the persons who are for the time being parties to it, and
(c) any variation of the agreement, so long as the agreement continues to include provisions of any description mentioned in subsection (2)(a).
(5) References in subsection (4) to the agreement include any agreement having effect (whether directly or indirectly) in substitution for the original agreement.
(6) In this section, and also in references elsewhere in this Chapter to a share acquisition agreement as defined by this section, “agreement” includes any agreement or arrangement; and references in this section to provisions of an agreement—
(a) accordingly include undertakings, expectations or understandings operative under any arrangement, and
(b) (without prejudice to the foregoing) also include any provisions, whether express or implied and whether absolute or not.
(7) An agreement which is not legally binding is not a share acquisition agreement for the purposes of this Chapter unless it involves mutuality in the undertakings, expectations or understandings of the parties to it.
Supplemental power of court in relation to a share acquisition agreement
809. (1) The court has the following power if—
(a) on the making of an application for a disclosure order, or
(b) at any time subsequent to the making of such an order (on application to the court in that behalf),
it has grounds to believe that all of the information sought to be obtained by the disclosure order will not, or may not, be obtained by reason of a person who is both—
(i) a party or former party to a share acquisition agreement, and
(ii) the person against whom the order is sought to be, or has been, made, appearing not to be in possession of all the facts relevant to the application of section 806 as it applies, or applied, to that agreement.
(2) That power of the court is to make an order requiring any other party or former party to the share acquisition agreement to give, in writing, to the court such particulars as the court specifies, and which the party or former party is able to give, in relation to matters affecting the application of section 806 as it applies, or applied, to that agreement and, in particular, the party’s or former party’s interests in shares in the company that are or were the subject of attribution to another party to that agreement by virtue of that application.
(3) An application under subsection (1)(b) may be made by a person having a financial interest (within the meaning of section 800 ) in the company or by the Director.
(4) A person intending to make an application under subsection (1)(b) shall give not less than 10 days’ notice of the intention to apply to—
(a) the company in respect of whose shares the order is sought, and
(b) the person to whom the order is to be directed.
(5) An applicant under subsection (1)(b) shall also serve on any person specified by the court such notice of the application as the court may direct.
(6) On the hearing of an application under subsection (1)(b) every person notified under subsection (4) or (5) may appear and adduce evidence.
Court may grant exemption from requirements of disclosure order
810. (1) The court may, in making a disclosure order, include an exemption for any of the following persons or interests from all or part of the requirements of a disclosure order:
(a) any person, group or class of persons;
(b) any interest or class of interest in shares or debentures;
(c) any shares or group or class of shares;
(d) any debentures or group or class of debentures.
(2) The court may grant such an exemption only if it considers that—
(a) it would be just and equitable to do so, and
(b) the financial interest of the applicant for the disclosure order would not be prejudiced by the grant of the exemption.
Other powers of court in relation to disclosure orders
811. (1) The court may, on cause shown, discharge or vary a disclosure order.
(2) A disclosure order may specify a person, group or class of persons to which the order applies.
(3) Where the court makes a disclosure order, it may impose, for a specified period of time, such conditions or restrictions as it thinks fit on the rights or obligations attaching to the shares or debentures that are the subject of the order.
(4) Any person whose interests are affected by any conditions or restrictions imposed on shares or debentures under subsection (3) may apply to the court for relief from all or any of those conditions or restrictions, and the court may, if it considers it just and equitable to do so, grant such relief, in whole or in part, and on such terms and conditions (if any) as it sees fit.
Notice of disclosure order
812. (1) The applicant for a disclosure order shall ensure that a notice in the prescribed form of the making of the disclosure order is sent, with a copy of the order, to the following:
(a) the company (at its registered office) whose shares or debentures are the subject of the order;
(b) the Registrar;
(c) the registered holder of any of the shares or debentures that are the subject of the order where it appears to the court that that person—
(i) is not resident in the State at the date of the making of the order, and
(ii) should be notified;
and
(d) any other person as the court sees fit.
(2) The notice shall be sent—
(a) by registered post, and
(b) within 7 days after the date of the making of the order.
(3) The applicant shall ensure that notice of the making of the disclosure order is published in Iris Oifigiúil within 7 days after the date of the making of the order.
(4) For the purposes of subsection (1)(c)—
(a) the address of a registered holder of shares or debentures who is not resident in the State shall be deemed to be the address of that holder that was last delivered to the Registrar or otherwise published, as the case may be, in accordance with this Act before the date of making the order, or
(b) if no address of the non-resident registered holder has ever been duly delivered to the Registrar or otherwise so published, the requirements of subsection (1)(c) are complied with by sending the notice and copy of the order to the Registrar.
Information disclosed under order
813. (1) A person who is the subject of a disclosure order shall provide the information in a written notice.
(2) The notice shall identify the person providing the information and give that person’s current address, and that person does not comply with the disclosure order if the requirement with respect to the person’s identity and current address is not met.
(3) Where information is given to the court in compliance with a disclosure order, a prescribed officer of the court shall ensure that the information is provided to the applicant and the company unless the court directs otherwise (which may include a direction that only part of the information shall be provided).
(4) In making a direction under subsection (3), the court shall have regard to whether the requirements of section 812 have been met.
Court may impose restrictions on publication of information provided
814. Where any information is provided to the applicant or the company under section 813 (3), the court may impose such restrictions as it sees fit as to the publication of the information by the person to whom it has been provided.
Right or interest in shares or debentures unenforceable by person in default
815. (1) A person who is the subject of a disclosure order shall not be entitled to enforce any right or interest of any kind whatsoever in respect of any shares in or debentures of the company concerned held by that person if that person—
(a) fails to comply with the order within the period specified in the order, or
(b) in purported compliance with the order makes a statement to the court that is false knowing it to be false or being reckless as to whether it is false.
(2) In subsection (1), “enforce” means enforce by action or legal proceeding, whether directly or indirectly.
Court may grant relief from restriction on enforceability of right or interest in shares or debentures
816. (1) Subject to subsections (2) and (5), where any right or interest is restricted under section 815 , the court, on the application of a person specified in subsection (3), may grant relief from that restriction.
(2) The court may grant relief if it is satisfied that—
(a) the default was accidental or due to inadvertence or some other sufficient cause, or
(b) on other grounds it is just and equitable to do so.
(3) The court may grant relief on the application of—
(a) the person in default, or
(b) any other person affected by the restriction.
(4) The court may grant relief—
(a) generally,
(b) in relation to a particular right or interest, or
(c) subject to such terms and conditions as it sees fit.
(5) The court may not grant relief on the application of the person in default if it appears that the default has arisen as a result of a deliberate act or omission on the part of that person.
Dealing by agent in shares or debentures subject to disclosure order
817. (1) This section applies where a person (the “principal”) authorises another person (the “agent”) to acquire or dispose of, on the principal’s behalf, interests in shares (the “shares”) comprised in the share capital of a company, or in debentures (the “debentures”) of the company, in respect of which a disclosure order is made.
(2) For the duration of the disclosure order, the principal shall ensure that the agent notifies the principal immediately of acquisitions or disposals of the shares or debentures effected by the agent that will or may give rise to any obligation under the order on the part of the principal to provide information in respect of the principal’s interest in the shares or debentures.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.