Court Inspectors
Companies Act
Investigation of company’s affairs by court appointed inspectors on application of company etc.
747. (1) On the application of a person or persons specified in subsection (2), the court may appoint one or more competent inspectors to investigate the affairs of a company in order to enquire into matters specified by the court and to report on those matters in such manner as the court directs.
(2) The court may make the appointment on the application of any of the following persons:
(a) the company;
(b) not less than 10 members of the company;
(c) a member or members holding one-tenth or more of the paid up share capital of the company (but shares held as treasury shares shall be excluded for the purposes of this paragraph);
(d) a director of the company; or
(e) a creditor of the company.
(3) The court’s power of appointment under subsection (1) is exercisable notwithstanding that the company is in the course of being wound up.
(4) The court may require the applicant or the applicants to give security for payment of the costs of the investigation.
(5) A person who intends making an application under this section shall give not less than 14 days’ notice in writing of his or her intention to apply to the Director, and the Director shall be entitled to appear and be heard on the hearing of the application.
(6) In this section “court” means—
(a) save in the case of a company referred to in paragraph (b), the High Court, or
(b) in the case of a company that, in respect of the latest financial year of the company that has ended prior to the date of the making of the application under this section, fell to be treated as a small or medium company by virtue of section 350 , the Circuit Court,
and, subject to subsection (8), all subsequent references to the court in this Part shall, as respects the powers and jurisdiction of the court with respect to an investigation on foot of an appointment made under this section by the Circuit Court, be read accordingly.
(7) For the purpose of paragraph (b) of subsection (6), if the latest financial year of the company concerned ended within 3 months prior to the date of the making of the application concerned, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the making of the application concerned).
(8) Subsection (6) does not confer jurisdiction on the Circuit Court to wind up any body corporate; however, that court, in exercise of its jurisdiction under this Part, may refer an inspectors’ report made to it under this Part to the High Court which shall have the same jurisdiction to wind up any body corporate concerned as if the inspectors’ report had been made to it in the first instance.
(9) In the case of an application under this section by a creditor or member to the Circuit Court, the application shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the circuit in which the creditor or member resides, or
(c) if there is no registered office of the company at that time and the creditor or member resides outside the State, for the Dublin Circuit.
(10) In the case of an application under this section by the company or a director of it to the Circuit Court, the application shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application; or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
Investigation of company’s affairs by court appointed inspectors on application of Director
748. (1) On the application of the Director, the court may appoint one or more competent inspectors to investigate the affairs of a company and to report on those affairs in such manner as the court directs, if the court is satisfied that there are circumstances suggesting that—
(a) the affairs of the company are being or have been conducted with intent to defraud—
(i) its creditors;
(ii) the creditors of any other person; or
(iii) its members;
(b) the affairs of the company are being or have been conducted for a fraudulent or unlawful purpose other than described in paragraph (a);
(c) the affairs of the company are being or have been conducted in an unlawful manner;
(d) the affairs of the company are being or have been conducted in a manner that is unfairly prejudicial to some part of its members;
(e) the affairs of the company are being or have been conducted in a manner that is unfairly prejudicial to some or all of its creditors;
(f) any actual or proposed act or omission of the company (including an act or omission on its behalf) was, is or would be unfairly prejudicial to some part of its members;
(g) any actual or proposed act or omission of the company (including an act or omission on its behalf) was, is or would be unfairly prejudicial to some or all of its creditors;
(h) the company was formed for a fraudulent or unlawful purpose;
(i) persons connected with its formation or the management of its affairs have, in that connection, been guilty of fraud, misfeasance or other misconduct towards the company or its members; or
(j) the company’s members have not been given all the information relating to its affairs which they might reasonably expect.
(2) The court’s power of appointment under this section is without prejudice to its powers under section 747 and is exercisable notwithstanding that the company is in the course of being wound up.
(3) Inspectors appointed under this section may be or include an officer or officers of the Director.
(4) A reference in subsection (1) to the members of a company shall have effect as if it included a reference to any person who is not a member but to whom shares in the company have been transferred or transmitted by operation of law.
(5) In this section “court” means—
(a) save in the case of a company referred to in paragraph (b), the High Court, or
(b) in the case of a company that, in respect of the latest financial year of the company that has ended prior to the date of the making of the application under this section, fell to be treated as a small or medium company by virtue of section 350 , the Circuit Court,
and, subject to subsection (7), all subsequent references to the court in this Part shall, as respects the powers and jurisdiction of the court with respect to an investigation on foot of an appointment made under this section by the Circuit Court, be read accordingly.
(6) For the purpose of paragraph (b) of subsection (5), if the latest financial year of the company concerned ended within 3 months prior to the date of the making of the application concerned, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the making of the application concerned).
(7) Subsection (5) does not confer jurisdiction on the Circuit Court to wind up any body corporate; however, that court, in exercise of its jurisdiction under this Part, may refer an inspectors’ report made to it under this Part to the High Court which shall have the same jurisdiction to wind up any body corporate concerned as if the inspectors’ report had been made to it in the first instance.
(8) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
(9) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government, a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government.
Court may give directions in relation to investigation
749. Where the court appoints an inspector under section 747 (1) or 748 (1), the court may from time to time give such directions as it thinks necessary or expedient, whether to the inspector or any other person, including directions given with a view to ensuring that the investigation is carried out as quickly and inexpensively as possible.
Power of inspector to expand investigation into affairs of related bodies corporate
750. (1) Subject to subsection (4), an inspector appointed under section 747 (1) or 748 (1) may investigate the affairs of any other body corporate that is related to the company under investigation if the inspector—
(a) considers that it is necessary for the purposes of the investigation, and
(b) has first obtained the approval of the court.
(2) An inspector who investigates the affairs of a related body corporate shall report on those affairs to the extent that the inspector considers that the results of investigation of the related body corporate are relevant to the investigation of the company.
(3) Without prejudice to the application of section 2 (10), a body corporate that is related to a company includes, for the purposes of this section and sections 753 and 754, a body corporate with which the company has a commercial relationship, and a commercial relationship exists where goods or services are sold or given by one party to another.
(4) The Circuit Court shall only have jurisdiction to grant the approval referred to in subsection (1), if in respect of the latest financial year of the body corporate there referred to that has ended prior to the date of the making of the application for the approval, that body fell to be treated (or, if it were a company, would have fallen to be treated) as a small or medium company by virtue of section 350 , and subsection (7) of section 747 applies for the purposes of this subsection as it applies for purposes of subsection (6)(b) of that section.
Order for inspection of books or documents of company in liquidation
751. (1) On the application of the Director, the court may make an order for the inspection by the Director of any books or documents in the possession of a company that is in the course of being wound up.
(2) The company, every officer of the company and the liquidator shall—
(a) give the Director such access to the books or documents and facilities as are necessary for inspecting or taking copies of the books or documents as the Director may require, and
(b) give all assistance to the Director as it or he or she is reasonably able to give in connection with the Director’s inspection of the books or documents.
(3) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government or a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government.
Expanded meaning of “officer” and “agent” for purposes of sections 753 to 757
752. In sections 753 to 757 —
(a) any reference to officers and agents includes past, as well as present, officers and agents; and
(b) “agents”, in relation to a company or related body corporate, includes—
(i) the bankers and solicitors of the company or other body corporate; and
(ii) any persons employed by the company or other body corporate as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company or other body corporate.
Duty of company officer or agent to produce books or documents and give assistance
753. (1) Every person who is an officer or agent of a company under investigation by an inspector appointed under section 747 (1) or 748 (1) or of a related body corporate under investigation under section 750 shall—
(a) produce to the inspector all books or documents of or relating to the company or the related body corporate, as the case may be, that are in that person’s possession or under that person’s control;
(b) attend before the inspector when required to do so; and
(c) otherwise give the inspector all assistance in connection with the investigation that that person is reasonably able to give.
(2) The production by a person of a book or document under this section is without prejudice to any lien that that person may claim over the book or document.
Inspector may require other persons to produce books or documents and give assistance
754. (1) This section applies if an inspector appointed under section 747 (1) or 748 (1) considers that a person who is not an officer or agent of the company or related body corporate under investigation possesses or may possess any information concerning the affairs of the company or related body corporate, as the case may be.
(2) In any case to which this section applies, the inspector may require the person in question to—
(a) produce to the inspector all books or documents of or relating to the company or the related body corporate, as the case may be, that are in that person’s possession or under that person’s control;
(b) attend before the inspector when required to do so; and
(c) otherwise give the inspector all assistance in connection with the investigation that that person is reasonably able to give.
(3) A person of whom a requirement is made under subsection (2) shall comply with that requirement.
(4) The production by a person of a book or document under this section is without prejudice to any lien that that person may claim over the book or document.
Supplementary power to compel production of books or documents in relation to certain banking transactions
755. (1) This section applies if an inspector appointed under section 747 (1) or 748 (1) has reasonable grounds for believing that a director (the “director”) of the company or related body corporate under investigation maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid money described in subsection (2).
(2) The money referred to in subsection (1) is—
(a) any money that has resulted from, or been used in, the financing of any transaction, arrangement or agreement—
(i) particulars of which have not been disclosed in a note to the financial statements of any company for any financial year as required by section 307 , 308 or 309 ;
(ii) in respect of which any amount outstanding was not included in the aggregate amounts outstanding in respect of certain transactions, arrangements or agreements as required by section 311 to be disclosed in a note to the financial statements of any company for any financial year;
(iii) particulars of which were not included in any register of certain transactions, arrangements and agreements as required by section 312 (1) or section 1120 (including the latter as it is applied by this Act to companies other than public limited companies);
or
(b) any money that has been in any way connected with any act or omission, or series of acts or omissions, that on the part of the director constituted misconduct (whether fraudulent or not) towards the company or body corporate under investigation or its members.
(3) In any case to which this section applies, the inspector may require the director to produce to the inspector all books or documents in the director’s possession or under his or her control relating to the bank account referred to in subsection (1) and the director shall comply with that requirement.
(4) In this section—
“bank account” includes an account with any person who is exempt, by virtue of section 7 (4) of the Central Bank Act 1971 , from the requirement of holding a licence under section 9 of that Act;
“director” includes any present or past director or any person connected, within the meaning of section 220 , with that director and any present or past shadow director.
Power of inspector to examine officers, agents and others
756. (1) An inspector appointed under section 747 (1) or 748 (1) may examine the following persons on oath in relation to the affairs of the company or related body corporate under investigation:
(a) an officer or agent of the company or related body corporate; and
(b) a person referred to in section 754 ;
and an examination under this section of an officer or agent of the company may relate to the related body corporate (as well as the company) and vice versa.
(2) The inspector may conduct the examination orally or through written questions and for the purpose of the examination may—
(a) administer an oath; and
(b) reduce to writing the answers of the person being examined and require that person to sign them.
Court may make order in relation to default in production of books or documents, etc.
757. (1) The court may make any order or give any direction it thinks fit if—
(a) an officer or agent of a company or related body corporate under investigation or a person referred to in section 754 refuses or fails within a reasonable time to—
(i) produce to the inspectors any book or document that it is that person’s duty under sections 753 to 755 to produce;
(ii) attend before the inspectors when required to do so; or
(iii) answer a question put to that person by the inspectors with respect to the affairs of the company or other body corporate as the case may be;
(b) the inspectors have certified the refusal or failure to the court in a certificate signed by them; and
(c) the court has taken the steps set out in subsection (2).
(2) The court may make an order or give a direction under subsection (1) if the court has—
(a) enquired into the case;
(b) heard any witnesses who may be produced against or on behalf of the person alleged to be in default; and
(c) heard any statement made in that person’s defence.
(3) Without prejudice to the generality of subsection (1), the court may, after a hearing under subsection (2), direct that the person concerned—
(a) attend or re-attend before the inspectors or produce particular books or documents or answer particular questions put to that person by the inspectors; or
(b) need not produce a particular book or document or answer a particular question put to that person by the inspectors.
Report of inspectors appointed under section 747 (1) or 748(1)
758. (1) Inspectors appointed under section 747 (1) or 748 (1) may, and if directed by the court shall, make interim reports to the court, and on conclusion of the investigation shall make a final report to the court.
(2) Notwithstanding anything in subsection (1), an inspector appointed under section 747 (1) or 748 (1) may at any time in the course of the investigation, without the necessity of making an interim report, inform the court of matters coming to his or her knowledge as a result of the investigation that tend to show that an offence has been committed.
Distribution of inspectors’ report
759. (1) The court shall provide a copy of every inspectors’ report to the Director.
(2) The court may—
(a) forward a copy of an inspectors’ report to the registered office of the company that is the subject of the report;
(b) provide a copy of an inspectors’ report on request to any of the following:
(i) a member of the company or other body corporate that is the subject of the report;
(ii) a person whose conduct is referred to in the report;
(iii) the statutory auditors of the company or other body corporate;
(iv) if other than the Director, the person or persons who applied for the appointment of the inspectors;
(v) any other person (including an employee or creditor of the company or other body corporate) whose financial interests appear to the court to be affected by the matters dealt with in the report;
(vi) the Central Bank, if the report relates, wholly or partly, to the affairs of a credit institution.
(3) The court may provide a copy of an inspectors’ report to—
(a) an appropriate authority in relation to any of the matters referred to in section 791 (a) to (j); or
(b) a competent authority as defined in section 792 (2).
(4) The court may cause an inspectors’ report to be published in such form and manner as it thinks fit.
(5) The court may direct that a particular part of an inspectors’ report be omitted from a copy that is forwarded or provided under subsection (2) or (3) or a report that is printed and published under subsection (4).
(6) In this section “inspectors’ report” means a report made under section 758 .
Court may make order after considering inspectors’ report
760. (1) After considering a report made under section 758 , the court may make such order as it thinks fit.
(2) An order under subsection (1) may include—
(a) an order of the court’s own motion for the winding up of a body corporate; or
(b) an order for remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the company that is the subject of the report, provided that in making such an order the court shall have regard to the interests of any other person who may be adversely affected by the order.
Director may present petition for winding up following consideration of report
761. The Director may present a petition for the winding up of a body corporate on the ground that it is just and equitable to do so if the Director considers that such a petition should be presented having regard to—
(a) a report made under section 758 by inspectors appointed under section 747 (1) or 748 (1); or
(b) any information or document obtained by the Director by virtue of the performance by him or her of functions (whether under this Part or otherwise).
Expenses of investigation by court appointed inspector
762. (1) The expenses of and incidental to an investigation by an inspector appointed under section 747 (1) or 748 (1) shall be defrayed in the first instance by the relevant authority.
(2) The court may direct that a body corporate dealt with in the report or the applicant or applicants for the appointment of the inspector shall be liable to repay the relevant authority so much of the expenses as the court directs.
(3) Without prejudice to subsection (2) but subject to subsection (5), where a court enters a conviction or makes an order in a case set out in subsection (4), the court may in the same proceedings order the person referred to in subsection (4) to repay the relevant authority or any person fixed with liability for expenses under subsection (2) so much of the expenses of and incidental to the investigation as the court directs.
(4) The cases mentioned in subsection (3) are—
(a) the court convicts the person on indictment of an offence on a prosecution instituted as a result of the investigation;
(b) the court orders the person to pay damages or restore any property in proceedings brought as a result of the investigation; or
(c) the court awards damages to or orders the restoration of property to the person in proceedings brought as a result of the investigation.
(5) Where a court makes an order for payment of expenses under subsection (3) against a person to whom subsection (4)(c) relates—
(a) the court shall not order payment of expenses that are more than one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and
(b) the order shall not be executed until the person concerned has received the damages or the property has been restored.
(6) In the light of his or her investigation, an inspector may or, if the court so directs, shall recommend in his or her report what directions (if any) he or she considers to be appropriate under subsection (2).
(7) In this section “relevant authority” means—
(a) in the case of an appointment of an inspector or inspectors under section 747 (1), the Minister for Justice and Equality;
(b) in the case of an appointment of an inspector or inspectors under section 748 (1), the Director.
(b) is relevant to the purposes of the investigation.
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.