Disqualification
Companies Act
Interpretation generally (Chapter 4)
837. In this Chapter—
“company” includes every company and every body, whether corporate or unincorporated, that may be wound up under this Act;
“court”, in relation to a disqualification order made by a court of its own motion under section 842 (a), (b), (c), (d) or (f), means the High Court or any other court of competent jurisdiction dealing with the person concerned in criminal or civil proceedings before it;
“default order” means an order made against any person under section 797 by virtue of any contravention of or failure to comply with any relevant requirement (whether on that person’s part or on the part of any company);
“officer”, in relation to any company, includes any director, shadow director or secretary of the company;
“relevant requirement” means any provision of this Act (including any provision repealed by this Act) that requires or required any return, account or other document to be filed with, delivered or sent to, or notice of any matter to be given, to the Registrar.Meaning of “disqualified” and “disqualification order”
838. In this Chapter—
“disqualification order” means an order of the court that a person shall be disqualified;
“disqualified”, in relation to a person, means the person’s being disqualified from being appointed or acting as a director or other officer, statutory auditor, receiver, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:
(a) a company within the meaning of section 819 (6);
(b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014.
Automatic disqualification on conviction of certain indictable offences
839. (1) A person is automatically disqualified if that person is convicted on indictment of—
(a) any offence under this Act, or any other enactment as may be prescribed, in relation to a company, or
(b) any offence involving fraud or dishonesty.
(2) 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.
(3) A person disqualified under subsection (1) is deemed, for the purposes of this Act, to be subject to a disqualification order for the period of his or her disqualification.
(4) Subsection (1) is in addition to the other provisions of this Act providing that, upon conviction of a person for a particular offence, the person is deemed to be subject to a disqualification order.
Default under section 149 (8) concerning fact of director’s becoming disqualified under law of another state
840. (1) In this section—
“relevant change amongst its directors”, in relation to a company, means the change referred to in section 150 (1), namely the case of a director’s becoming disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking;
“relevant director” means the director of the company who has become so disqualified under the law of another state;
“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 150 (1).
(2) If—
(a) a company fails to comply with the requirement under section 149 (8) to send to the Registrar the notification of the relevant change amongst its directors and that failure is by reason of a default of the relevant director, or
(b) in purported compliance with that requirement, a company sends to the Registrar the notification of the relevant change amongst its directors and, by reason of a default of the relevant director, the statement of particulars of foreign disqualification is false or misleading in a material respect,
the relevant director shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).
(3) The period of disqualification—
(a) commences—
(i) in the case of a failure referred to in subsection (2)(a), on the expiry of 14 days after the date on which the relevant director has become disqualified, as mentioned in the definition of “relevant change amongst its directors” in subsection (1), under the law of another state, or
(ii) in the case, as referred to in subsection (2)(b), of the sending of a statement of particulars of foreign disqualification to the Registrar that is false or misleading in a material respect, when that statement is delivered to the Registrar,
and
(b) continues only for so much of—
(i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or
(ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.
(4) Without limiting the circumstances in which such a default can arise, a failure referred to in—
(a) subsection (2)(a) occurs by reason of a default of the relevant director if the latter has failed in his or her duty under section 150 (3) to give the necessary information to the company so as to enable it to comply with the requirement under section 149 (8) to send to the Registrar the notification of the relevant change amongst its directors, and
(b) subsection (2)(b) occurs by reason of a default of the relevant director if the latter, in purported compliance with the foregoing duty, has given information to the company, for the purposes of the statement of particulars of foreign disqualification, that is false or misleading in a material respect.
(5) This section shall also apply to the additional case that, by virtue of subsection (9) of section 150 , subsection (1) of section 150 applies to.
(6) For the purposes of the application of this section to the foregoing additional case, this section shall have effect subject to the following modifications:
(a) the following definition shall be substituted for the definition of “relevant change amongst its directors” in subsection (1):
“ ‘relevant change amongst its directors’, in relation to a company, means the change referred to in subsection (1) of section 150 (as that subsection applies by virtue of subsection (9) of that section), namely the case of a person appointed a director of a company before the commencement of that section and who, subsequent to his or her appointment but before that commencement, becomes disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as director or secretary of a body corporate or an undertaking;”;
(b) in subsection (2), after “ section 149 (8)” there shall be inserted “(as that provision applies by virtue of section 150 (10))”;
(c) in subsection (3)(a), there shall be substituted the following for subparagraph (i):
“(i) in the case of a failure referred to in subsection (2)(a), on the expiry of 3 months after the commencement of section 150 ; or”;
and
(d) in subsection (3)(b), there shall be substituted the following for subparagraph (i):
“(i) the period of foreign disqualification as remains unexpired as at the date that is specified in paragraph (a) to be the date on which the period of disqualification commences;”.
Default under section 23 or 150(2) by director disqualified under law of another state
841. (1) This section applies to a person if the person—
(a) is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and
(b) one of the following occurs:
(i) the person fails to comply with section 23 or 150 (2);
(ii) in purported compliance with section 23 , the person permits the statement of first directors and secretary to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect; or
(iii) in purported compliance with section 150 (2), the person permits the notification of change of director to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect.
(2) A person to whom this section applies shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).
(3) The period of disqualification—
(a) commences—
(i) in the case of a default referred to in subsection (1)(b)(i), when the statement of first directors and secretary or notification of change of director, as the case may be, is delivered to the Registrar, or
(ii) in the case of a default referred to in subsection (1)(b)(ii) or (iii), when the statement of first directors and secretary or notification of change of director, as the case may be, accompanied by the statement of particulars of foreign disqualification is delivered to the Registrar,
and
(b) continues only for so much of—
(i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or
(ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.
(4) In this section—
“notification of change of director” means the notification of a change in director that is required to be sent under section 149 (8);
“statement of first directors and secretary” means the statement required to be delivered under section 21 (1)(a);
“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 23 or 150 (2).
Court may make disqualification order
842. On the application of a person specified in section 844 or of its own motion, the court may make a disqualification order in respect of a person for such period as it sees fit if satisfied—
(a) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any fraud in relation to the company, its members or creditors,
(b) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any breach of his or her duty as such promoter, officer, auditor, receiver, liquidator or examiner,
(c) that a declaration has been granted under section 610 in respect of the person,
(d) that the conduct of the person as promoter, officer, statutory auditor, receiver, liquidator or examiner of a company makes him or her unfit to be concerned in the management of a company,
(e) that, as disclosed in a report of inspectors appointed by the court or the Director under this Act, the conduct of the person makes him or her unfit to be concerned in the management of a company,
(f) that the person has been persistently in default in relation to the relevant requirements,
(g) that the person has been guilty of 2 or more offences under section 286 ,
(h) that the person was a director of a company when a notice was sent to the company under section 727 and the company, following the taking of the other steps under Chapter 1 of Part 12 consequent on the sending of the notice, was struck off the register under section 733 , or
(i) that—
(i) the person is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and
(ii) it would have been proper to make a disqualification order against the person otherwise under this section if his or her conduct or the circumstances otherwise affecting him or her that gave rise to the foreign disqualification had occurred or arisen in the State.
Provisions relating to particular grounds for disqualification
843. (1) In relation to section 842 (f), the fact that a person has been persistently in default in relation to the relevant requirements may (without prejudice to its proof in any other manner) be conclusively proved by showing that, in the 5 years ending with the date of the application, the person has been found guilty (whether or not on the same occasion) of 3 or more defaults in relation to those requirements.
(2) For the purposes of subsection (1), a person shall be treated as having been found guilty of a default in relation to a relevant requirement if he or she is convicted of any offence consisting of a contravention of a relevant requirement or a default order is made against him or her.
(3) The court shall not make a disqualification order under section 842 (h) if the person concerned shows that—
(a) the company in question had no liabilities (whether actual, contingent or prospective) when it was struck off the register, or
(b) in a case where the company did have such liabilities when it was struck off the register, those liabilities were discharged before the date of the making of the application for the disqualification order.
(4) The court may make a disqualification order under section 842 (i) notwithstanding that under section 840 (2) or 841 (2) the person concerned is deemed for the purposes of this Act to be subject to a disqualification order.
(5) A disqualification order under section 842 (i) shall express the period of disqualification to begin on the expiry of the disqualification period determined in accordance with section 840 (3)(b) or 841 (3)(b) or such shorter disqualification period following the grant of an application for relief under section 847 .
Persons who may apply for disqualification order under section 842
844. (1) The Director may make an application under any of section 842 (a) to (i).
(2) The Director of Public Prosecutions may make an application under any of section 842 (a) to (g).
(3) The Registrar may make an application under section 842 (f).
(4) An application under any of section 842 (a) to (d) may be made by any member, contributory, officer, employee, receiver, liquidator, examiner or creditor of any company in relation to which the person who is the subject of the application—
(a) has been or is acting or is proposing to or is being proposed to act as officer, statutory auditor, receiver, liquidator or examiner, or
(b) has been or is concerned or taking part in, or is proposing to be concerned or take part in, the promotion, formation or management.
(5) 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.
Miscellaneous provisions relating to disqualification by court order
845. (1) Where it is intended to make an application under section 842 in respect of any person, the applicant shall give not less than 10 days’ notice of his or her intention to that person.
(2) A disqualification order may be made on grounds that are or include matters other than criminal convictions notwithstanding that the person who is the subject of the order may be made criminally liable in respect of those matters.
(3) On an application for a disqualification order, the court may as an alternative, if it considers that disqualification is not justified, make a declaration under section 819 .
Costs and expenses of application
846. The court, on hearing an application under section 842 , may order that the person disqualified or against whom a declaration under section 819 is made as a result of the application (by virtue of section 845 (3)) shall bear—
(a) the costs of the application, and
(b) in the case of an application by the Director, the Director of Public Prosecutions, a liquidator, a receiver or an examiner, the whole (or so much of them as the court specifies) of the costs and expenses that are incurred by the applicant
(i) in investigating the matters that are the subject of the application, and
(ii) in so far as they do not fall within paragraph (a), in collecting evidence in respect of those matters,
including so much of the remuneration and expenses of the applicant as are attributable to such investigation and collection.
Court may grant relief to person subject to disqualification order
847. (1) On the application by a person who is subject to a disqualification order, the court may, if it considers that it is just and equitable, grant relief from the disqualification—
(a) in whole or in part, and
(b) on such terms and conditions as it sees fit.
(2) Without prejudice to subsection (3), in the case of an application for relief from a disqualification order made under section 842 , the application shall be served on—
(a) the applicant for the disqualification order, and
(b) the Director, if different from the applicant for the disqualification order.
(3) A person who intends applying for relief under subsection (1) shall give not less than 14 days’ notice in writing of his or her intention to apply to—
(a) the applicant for the disqualification order, and
(b) the Director, if different from the applicant for the disqualification order.
(4) If the applicant for the disqualification order was the liquidator of a company, the insolvency of which gave rise to the application for the disqualification order, then, on receipt of a notice under subsection (3), the liquidator shall as soon as practicable notify such creditors and contributories of the company as have been notified to the liquidator or become known to the liquidator.
(5) On the hearing of an application under this section, the Director and the applicant for the disqualification order and, where the latter is a liquidator referred to in subsection (4), any creditor or contributory of the company concerned, may appear and give evidence.
(6) A liquidator who fails to comply with subsection (4) shall be guilty of a category 3 offence.
Disqualification of restricted person following subsequent winding up
848. (1) This section applies where—
(a) a restricted person is or becomes a director of a company that commences to be wound up within the period of 5 years after the date of commencement of the winding up of the company whose insolvency caused that person to be a restricted person, and
(b) it appears to the liquidator of the first-mentioned company that that company is, at the date of commencement of its winding up or at any time during the course of its winding up, unable to pay its debts.
(2) In any case to which this section applies, the liquidator shall report the matters set out in subsection (1) to the court, and the court, if it considers that it is proper to do so, may make a disqualification order against the restricted person for such period as it thinks fit.
(3) If the liquidator fails to comply with subsection (2), he or she shall be guilty of a category 3 offence.
(4) In this section—
(a) “restricted person” has the same meaning as it has in Chapter 3;
(b) references to a company (other than the company whose insolvency caused the person concerned to be a restricted person) are references to any company within the meaning of section 819 (6).
CHAPTER 5
Disqualification and restriction undertakings
Definitions (Chapter 5)
849. In this Chapter—
“disqualification” means being disqualified from being appointed or acting as a director or other officer, receiver, statutory auditor, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:
(a) any company within the meaning of section 819 (6);
(b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;
“disqualification acceptance document” means the document provided for by regulations under section 854 (1) and referred to in paragraph (a)(i) of that provision;
“disqualification order” means an order made under section 842 ;
“disqualification undertaking”, in relation to a person, means an undertaking by the person, given by the means provided in this Chapter, by which the person submits himself or herself to be subject to disqualification;
“restriction” means being restricted for a period of 5 years from being appointed or acting in any way, directly or indirectly, as a director or secretary of a company (within the meaning of section 819 (6)) or being concerned in or taking part in the promotion or formation of a company (within that meaning) unless the company meets the requirements set out in section 819 (3);
“restriction acceptance document” means the document provided for by regulations under section 854 (1) and referred to in paragraph (a)(ii) of that provision;
“restriction declaration” means a declaration made under section 819 ;
“restriction undertaking”, in relation to a person, means an undertaking by the person, given by the means provided in this Chapter, by which the person submits himself or herself to be subject to restriction.
Disqualification undertaking — initiation of procedure that provides person opportunity to submit to disqualification
850. (1) In this section—
“disqualification period” shall be read in accordance with subsection (3)(b);
“notice period” shall be read in accordance with subsection (3)(d);
“person” shall be read in accordance with subsection (2);
“specified date” shall be read in accordance with subsection (3)(c);
“underlying facts and circumstances” shall be read in accordance with subsection (3)(a).
(2) Subject to section 851 (6), where the Director has reasonable grounds for believing that one or more of the circumstances specified in section 842 (a) to (i) applies to a person (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, the following notice.
(3) That notice is a notice in the prescribed form stating—
(a) both—
(i) which of the circumstances specified in section 842 (a) to (i) the Director believes apply to the person; and
(ii) particulars of the facts and allegations that have given rise to that belief;
and the circumstances so stated, and the facts and allegations that have given rise to that belief (and of which particulars are so stated), are referred to together in this section as the “underlying facts and circumstances”;
(b) the period of disqualification (referred to in this section as the “disqualification period”) which, in the Director’s opinion, is warranted in relation to the person by the underlying facts and circumstances;
(c) the date (referred to in this section as the “specified date”) that will, subject to subsection (5), be the date of commencement of the disqualification period, if a disqualification undertaking is given by the person;
(d) that during—
(i) such period as may be specified in the notice (referred to in this section as the “notice period”), being a period beginning on a day falling not less than 21 days after the date of the notice and expressed to end immediately before the specified date; or
(ii) in the event of a request under subsection (5) by the person being acceded to, the notice period as extended in pursuance of that subsection;
the person may—
(I) notify the Director, in the prescribed form, of his or her willingness to give a disqualification undertaking for the disqualification period; and
(II) return to the Director the disqualification acceptance document duly signed;
(e) that during the notice period, or that period as so extended, 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;
(f) that if the person, within the notice period or that period as so extended, does the things referred to in paragraph (d)(I) and (II), the Director shall not, after the expiry of that period, make an application in respect of the person under section 842 arising from or in connection with the underlying facts and circumstances.
(4) That notice shall also state—
(a) that the person may make a request, under subsection (5), for an extension of the notice period,
(b) the legal effect (for the person) of giving a disqualification undertaking for the disqualification period beginning on the specified date, and
(c) 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.
(5) Where a notice is delivered under subsection (2), the Director may, at any time before the specified date, on the request of the person, where the Director considers it appropriate to do so for the purposes of extending the notice period (and postponing the commencement of the proposed disqualification period in consequence), substitute a later date for the specified date and, where such a date is so substituted, references in section 851 —
(a) to the notice period shall be read as references to the notice period as extended in pursuance of this subsection, and
(b) to the specified date shall be read as references to the date that has been substituted for it in pursuance of this subsection.
Effect of delivery of notice under section 850 , giving of disqualification undertaking on foot thereof and related matters
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.
(2) Subsections (3) to (5) apply where a person, the subject of a notice delivered under section 850 (2), has, within the notice period—
(a) notified the Director, in the prescribed manner, of his or her willingness to give a disqualification undertaking for the disqualification period, and
(b) returned to the Director the disqualification acceptance document duly signed.
(3) The Director shall, as soon as practicable—
(a) cause the Registrar to be furnished with the prescribed particulars of the disqualification undertaking at such time and in such form and manner as may be prescribed, and the Registrar shall enter the prescribed particulars in the register of persons kept under section 864 , and
(b) notify the person of the prescribed particulars of the disqualification undertaking furnished to the Registrar and provide the person with a copy of the disqualification acceptance document executed by or on behalf of the Director.
(4) 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 disqualification undertaking.
(5) For the duration of the disqualification period beginning on the specified date, the person who has given the disqualification undertaking—
(a) shall not be appointed or act as a director or other officer, statutory auditor, receiver, liquidator or examiner or be in any way, whether directly or indirectly, concerned or take part in the promotion, formation or management of each of the following:
(i) any company within the meaning of section 819 (6);
(ii) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(iii) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;
and
(b) shall be deemed, for the purposes of this Act, to be subject to a disqualification order.
(6) The Director shall not exercise his or her power under section 850 (2) in relation to a person where—
(a) in the Director’s opinion, a period of disqualification, in relation to the person, that is longer than 5 years is warranted by the underlying facts and circumstances, or
(b) the Director is aware that an application under section 842 has already been made in respect of the person arising from or in connection with the underlying facts and circumstances.
(7) Where the person who has given the disqualification undertaking (the “immediate undertaking”) is already disqualified by virtue of an earlier disqualification undertaking or disqualification order, the period specified in the immediate undertaking shall run concurrently with the remaining period for which the person is already subject to disqualification.
(8) In this section—
(a) without prejudice to section 850 (5), “specified date” and “notice period” are to be read in accordance with section 850 (3)(c) and (d), respectively,
(b) “person”, “underlying facts and circumstances” and “disqualification period” are to be read in accordance with section 850 (2), (3)(a) and (3)(b), respectively.
Regulations for the purposes of sections 850 to 853
854. (1) The Minister shall make regulations requiring—
(a) that a document, in a form specified in the regulations, to be known as—
(i) in the case of sections 850 and 851 , a “disqualification acceptance document”; and
(ii) in the case of sections 852 and 853 , a “restriction acceptance document”;
(being the document by which the person to whom a notice delivered under section 850 (2) or 852 (2), as the case may be, relates signifies in writing (if such be the person’s decision) the person’s voluntary submission to disqualification or restriction, as appropriate, in accordance with this Chapter) shall be returned by the person within the relevant notice period to the Director; and
(b) that, on receipt of that document, the Director shall execute, or cause to be executed, on his or her part the document by the affixing of his or her seal to it.
(2) Regulations under subsection (1) may contain such consequential and supplemental provisions for the purposes of those regulations or for the purpose of giving further effect to sections 850 to 853 as the Minister thinks expedient, including—
(a) provision for particular procedures to be employed by the Director in relation to the delivery of a notice under section 850 (2) or 852 (2) or any communication between the Director and the person concerned or his or her duly authorised agent consequent on the delivery of such a notice (a “post-delivery-of notice communication”), and
(b) provision for a like privilege to legal professional privilege to attach to a post-delivery-of notice communication.
(3) This section is in addition to the powers under section 12 (1) to prescribe anything referred to in sections 850 to 853 as prescribed or to be prescribed.
CHAPTER 6
Enforcement in relation to disqualification and restriction
Offence of contravening disqualification order or restriction
855. (1) A person shall be guilty of a category 2 offence who acts, in relation to any company, in a manner or a capacity which he or she is prohibited from doing by virtue of being a person—
(a) who is subject to a disqualification order, or
(b) who is subject to a declaration of restriction under section 819 .
(2) A person convicted of an offence under subsection (1) shall be deemed to be subject to a disqualification order from the date of the conviction unless he or she is already subject to a disqualification order at that date.
(3) Where a person convicted of an offence under subsection (1) was subject to a disqualification order immediately before the date of the conviction, the period for which he or she was disqualified shall be extended for—
(a) a further period of 10 years beginning after the date of the conviction, or
(b) such other (shorter or longer) further 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.
(4) Section 847 shall not apply to a person convicted of an offence under subsection (1).
(5) In this section and the subsequent provisions of this Chapter—
(a) a reference to a company—
(i) shall be read as a reference to a company within the meaning of section 819 (6), and
(ii) in addition, where the context admits, shall be deemed to include a reference to any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014 and any society registered under the Industrial and Provident Societies Acts 1893 to 2014,
(b) for the avoidance of doubt, the employment, in relation to “disqualification order”, of the words “shall be deemed to be subject to”, followed by the employment, in relation to another occurrence of “disqualification order”, of the words “is subject to” does not limit the meaning of the latter to a case of the person’s being actually subject (as distinct from being deemed to be subject) to a disqualification order.
(6) Likewise, the employment, in this or any subsequent provision of this Chapter, of the words “shall be deemed to be subject to” does not so limit the meaning of the words “is subject to” where employed in relation to “a declaration of restriction under section 819 ”.
(7) If a case referred to in subsection (1) would also fall within section 405 (prohibition on acting in relation to audit while disqualification order in force), then section 405 applies to that case to the exclusion of this section.
Offence of acting under directions of person where directions given in contravention of this Part
856. (1) A person shall be guilty of a category 2 offence if he or she, while a director, acts in accordance with the directions or instructions of another person knowing that that other person, in giving the directions or instructions, is acting in contravention of any provision of this Part.
(2) A person who is convicted of an offence under subsection (1) shall be deemed to be subject to a disqualification order from the date of the conviction unless he or she is already subject to a disqualification order at that date.
Period of disqualification following conviction of offence under this Chapter
857. Where a person is, as a consequence of his or her conviction for an offence under section 855 (1) or 856 (1), deemed to be subject to a disqualification order, he or she shall be deemed to be so subject to a disqualification order for a period of 5 years beginning after the date of such conviction or such other (shorter or longer) period as the court, on the application of the prosecutor or the defendant and having regard to the circumstances of the case, may order.
Company may recover consideration
858. (1) This section applies if a person acts, in relation to a company, in a manner or a capacity which he or she is prohibited from doing by virtue of being a person who is subject to a declaration of restriction under section 819 or who is subject to a disqualification order made under section 842 .
(2) The company may recover from a person acting as described in subsection (1) any consideration (or an amount representing its value) given by or on behalf of the company for an act or service performed by that person while he or she was so acting.
(3) The company may recover the consideration or amount representing its value as a simple contract debt in any court of competent jurisdiction.
Person acting while disqualified or restricted liable for debts of company
859. (1) This section applies if—
(a) a person acts, in relation to a company, in a manner or a capacity which he or she is prohibited from doing by virtue of being a person who is subject to a declaration of restriction under section 819 or who is subject to a disqualification order made under section 842 ,
(b) the company commences to be wound up—
(i) while he or she is acting in such a manner or capacity, or
(ii) within 12 months after the date of his or her so acting,
and
(c) the company is unable to pay its debts within the meaning of section 570 .
(2) In any case to which this section applies, the court may, on the application of the liquidator or any creditor of the company, declare that the person referred to in subsection (1) shall be personally liable, without any limitation of liability, for all or part of the debts or other liabilities of the company incurred in the period during which the person was acting as described in subsection (1)(a).
Person acting under directions of disqualified person liable for debts of company
860. A person who is convicted, on indictment, of an offence under section 856 for acting in accordance with the directions or instructions of another in contravention of that section shall, if the court determines that it is just to so order and orders accordingly, be personally liable, without any limitation of liability, for so much as the court specifies of the debts or other liabilities of the company concerned incurred during the period that the person was so acting.
Relief from liability under section 858 , 859 or 860
861. In any proceeding against a person under section 858 , 859 or 860 , the court may, if, having regard to the circumstances of the case, it considers that it is just and equitable to do so, grant relief—
(a) in whole or in part from the liability of that person under the section concerned, and
(b) subject to such conditions as the court sees fit.
Court may require director to give certain information
862. (1) This section applies if—
(a) a director of a company is charged with an offence or civil proceedings are instituted against such a director, and
(b) the charge or proceedings relate to the company or involve alleged fraud or dishonesty by the director.
(2) In any case to which this section applies, the court before which the proceedings consequent on that charge or those civil proceedings are pending may, of its own motion or at the request of any party to the proceedings and if it considers that it is appropriate to do so, require the director to lodge with the office of the court a written notice—
(a) giving the names of all companies of which he or she is a director at the date of the notice,
(b) giving the names of all companies of which he or she was a director in the period—
(i) within a period commencing not earlier than 12 months before the director was charged or the proceedings were commenced against him or her, and
(ii) ending at the date of the notice,
(c) stating whether he or she is at the date of the notice or ever was subject to a disqualification order, and
(d) giving the dates and duration of each period for which he or she was disqualified.
(3) This section applies to shadow directors as it does to directors.
Information to be supplied to Registrar
863. (1) This section applies where a court—
(a) makes a disqualification order,
(b) grants or varies relief under section 847 , or
(c) convicts a person of—
(i) an offence that has the effect that the person is deemed to be subject to a disqualification order, or
(ii) an offence under section 855 (1) or 856 (1).
(2) In any case to which this section applies, a prescribed officer of the court shall ensure that the Registrar is given the prescribed particulars of the order, relief or conviction at such time and in such form and manner as may be prescribed.
Register of disqualified persons
864. (1) Subject to the provisions of this section, the Registrar shall keep a register of the particulars given to him or her under section 863 .
(2) Where the Registrar receives particulars of full relief under section 847 , the Registrar shall—
(a) not enter the particulars on the register, and
(b) as soon as practicable remove from the register any existing particulars in respect of the person concerned.
(3) The Registrar shall remove from the register any particulars in respect of a person on the expiry of the period for which the person is subject to a disqualification order, unless the Registrar has received a further notification in respect of that person under section 863 (1)(a) or (c).
(4) If the person is concurrently subject to 2 or more disqualification orders and the periods to which they relate do not expire at the same time, then the reference in subsection (3) to removal from the register of particulars is a reference only to those particulars that relate to the disqualification order or orders the period or periods of which have expired.
(5) Nothing in this section shall prevent the Registrar from keeping the register required under this section as part of any other system of classification, whether pursuant to section 895 or otherwise.
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.