An examiner has powers to make investigations for the purpose of the formulation of his report and recommendations. The court may order the examiner to investigate particular matters, including, in particular, alleged default on the part of directors. The examiner has the rights and powers of a statutory auditor of a company and the obligation to supply information to and co-operate with such auditor apply to an examiner.
Officers and agents of the company and of related companies under protection are obliged to produce documents and records and give all assistance to the examiner in connection with his functions, that they are reasonably able to give. This includes all information within their possession or control regarding the company’s affairs. The examiner may require directors and past directors to produce documents relating to bank accounts.
It is the duty of the officers and agents of a company and of a related company to which an examiner has been appointed to—
- produce to the examiner all books and documents of, or relating to, any such company which are in their custody or power;
- attend before the examiner when required by the examiner so to do; and
- otherwise to give to the examiner all assistance in connection with the examiner’s functions which they are reasonably able to give.
Investigating Others I
If the examiner has reasonable grounds for believing that a director of the company 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—
- any money which has resulted from or been used in the financing of any transaction, arrangement or agreement particulars of which have not been disclosed in the financial statements of any company for any financial year as required by the Companies Act, or
- any money which has been in any way connected with any act or omission, or series of acts or omissions, which, on the part of that director, constituted misconduct (whether fraudulent or not) towards that company or its members,
the examiner may require the director to produce to the examiner all documents in the director’s possession, or under his or her control, relating to that bank account. It is the duty of the director to comply with the requirement.
Investigating Others II
If the examiner considers that a person, other than an officer or agent of a company under protection, is or may be in possession of any information concerning the company’s affairs, the examiner may require that person to
- produce to the examiner any books or documents in his or her custody or power relating to the company,
- attend before the examiner, and
- otherwise give to the examiner all assistance in connection with the examiner’s functions which that person is reasonably able to give,
and it shall be the duty of that person to comply with the requirement.
Officers and agents for this purpose, include
- past as well as present, officers or agents;
- the bankers and solicitors of the company;
- any persons employed by the company as auditors, accountants, book-keepers or taxation advisors, 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.
Examination by Examiner
An examiner may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company in relation to that company’s affairs and may—
- administer an oath accordingly, or
- reduce the answers of such person to writing and require him or her to sign them.
Non-compliance with obligations on the part of directors and former directors may be certified by the examiner to the court. The court may inquire into the matter and treat the noncompliance in the same manner as contempt of court.
If any officer or agent of a foregoing company or another such person—
- refuses to produce to the examiner any book or document which it is his or her duty under this section to produce,
- refuses to attend before the examiner when requested by the examiner to do so, or
- refuses to answer any question which is put to him or her by the examiner with respect to the affairs of the company,
the examiner may provide a certificate to the court stating that such a refusal has occurred.
On such a certificate being provided to it, the court may enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, agent or other person to whom the certificate relates or any statement which may be offered in defence, make any order or direction it thinks fit.
The court may, after such hearing may make a direction to the person concerned to attend or re-attend before the examiner or produce particular books or documents or answer particular questions put to him or her by the examiner, or that the person concerned need not produce a particular book or document or answer a particular question put to him or her by the examiner.
Where, arising out of the presentation to it of the report of the independent accountant or otherwise, it appears to the court that there is evidence of a substantial disappearance of property of the company concerned that is not adequately accounted for, or of other serious irregularities in relation to the company’s affairs having occurred, the court shall, as soon as it is practicable, hold a hearing to consider that evidence.
If, before the hearing is held, the court directs the examiner to do so, the examiner must prepare a report setting out any matters which he considers will assist the court in considering the evidence concerned on that hearing. The examiner must supply a copy of the report prepared by him to the company concerned at the same time when he delivers it to the office of the court.
The examiner must also supply a copy of a report prepared to each person who is mentioned in it and to any interested party on written application being made to him in that behalf. If the court, on application made, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied to one of the parties or an interested party such parts of it as are specified in the direction of the court.
The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.
The following persons shall be entitled to appear and be heard at a hearing:
- the examiner;
- if the court decided to hold a hearing because of matters contained in the report of the independent expert, the independent expert;
- the company concerned;
- any interested party
- any person who is referred to in the report of the independent expert or the above report;
- if the company concerned is a financial services sector company, the Central Bank;
- irrespective of whether it constitutes any of the foregoing kinds of company — the Director of Corporate Enforcement.
The court may, on a hearing make such order or orders as it deems fit (including, where appropriate, an order for the trial of any issue relating to the matter concerned). The court may if it considers it appropriate to do so, direct that a certified copy of an order shall be delivered to the Registrar by the examiner or such other person as it may specify.
Report to ODCE
Where a disciplinary committee or tribunal (however called) of a prescribed professional body
- finds that a member of that body who is conducting or has conducted an examinership has not maintained appropriate records in relation to that activity; or
- has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during conducting an examinership,
then professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the Director of Corporate Enforcement forthwith.
If a professional body fails to comply with this obligation it, and any officer of the body to whom the failure is attributable shall be guilty of a category 3 offence.
References and Sources
Companies Act 2014 S.526 – S. 523 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch.23 Courtney
Keane on Company Law 5th Ed. (2016) Ch. 37 Hutchinson
Other Irish Sources
Tables of Origins & Destinations Companies Act 2014 (2016) Bloomsbury
Introduction to Irish Company Law 4th Ed. (2015) Callanan
Bloomsbury’s Guide to the Companies Act 2015 Courtney & Ors
Company Law in Ireland 2nd Ed. (2015) Thuillier
Pre-2014 Legislation Editions
Modern Irish Company Law 2nd Ed. (2001) Ellis
Cases & Materials Company Law 2nd Ed. (1998) Forde
Company Law 4th Ed. (2008) Forde & Kennedy
Corporations & Partnerships in Ireland (2010) Lynch-Fannon & Cuddihy
Companies Acts 1963-2012 (2012) MacCann & Courtney
Constitutional Rights of Companies (2007) O’Neill
Court Applications Under the Companies Act (2013) Samad
Company Law – Nutshell 3rd Ed. (2013) McConville
Questions & Answers on Company Law (2008) McGrath, N & Murphy
Make That Grade Irish Company Law 5th Ed. (2015) Murphy
Company Law BELR Series (2015) O’Mahony
Companies Act 2006 (UK) (Legilsation.gov.uk)
Statute books Blackstone’s statutes on company law (OUP)
Gower Principles of Modern Company Law 10th Ed. (2016) P. and S. Worthington
Company Law in Context 2nd Ed. (2012) D Kershaw
Company Law (9th Ed.) OUP (2016) J Lowry and A Dignam
Cases and Materials in Company law 11th Ed (2016) Sealy and Worthington
UK Practitioners Services
Tolley’s Company Law Handbook
Gore Browne on Companies
Palmer’s Company Law