Offences

General I

Summary proceedings against a company or an officer of the company may be brought in the District Court for the district where the registered office of the company is situated, before the commencement of proceedings.  Proceedings for failures to make returns to the CRO may be brought alternatively in the Dublin Metropolitan District or the District Court area for Carlow (where the CRO has its principal offices).

Summary proceedings may be brought within three years of the date

  • on which the offence was committed;
  • within six months of the person entering the State, if he was outside the State; or
  • at any time within three years after the date on which evidence that in the opinion of the person bringing the proceedings, is sufficient to justify bringing proceedings, comes to that person’s knowledge.

For this latter purpose, a certificate signed on behalf of the person bringing the proceedings as to the date of knowledge is presumptive evidence of such fact.


General II

Where a company is charged with an indictable offence, it may appear by a representative, who may answer questions put to it.  If it does not appear, the District Court may forward the company for a trial to the Circuit Court.

Any plea entered or signed by the accused company may be entered in writing on behalf of the company by a representative.  The representative may be a person duly appointed by the company, to represent it for the purpose of the matter concerned. The representative need not be appointed under the seal of the company.

A statement in writing purporting to be signed by the managing director of the company or some other person who manages the company to the effect that the person named in the statement has been appointed as a representative is admissible, without further proof, that the person has been so appointed.


Sanctions for Offences I

A person guilty of an offence under the Companies Act, which stated to be a category 1 offence, is liable on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 10 years or both.

A person guilty of an offence that is stated to be a category 2 offence, is liable on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both.  He is liable on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.

A person guilty of an offence under the Act, which is stated to be a category 3 offence, is liable on summary conviction, to a class A fine or imprisonment for a term not exceeding six months or both.

A person guilty of an offence under the Act, which is stated to be a category 4 offence, is liable on summary conviction, to a class A fine.


Sanctions for Offences II

If a contravention in respect of which a person is convicted, continues after conviction, the person is guilty of a further offence on every day on which the contravention continues.  For each such offence, the person is liable;

  • where the original offence was a category 1 offence, whether prosecuted summarily or on indictment, on  conviction on indictment to a fine not exceeding €5,000 or on summary conviction, a class D fine;
  • where the original contravention was a category 2 offence, whether prosecuted summarily or on indictment, on conviction on indictment, to a fine up to €1,000, or summary conviction, a fine not exceeding €100.
  • where the original offence was a category 3 or 4 offence, on summary conviction, to a fine not exceeding €50

in each case, daily.


Administrative Fines I

The ODCE may deliver a notice to a person if it has reasonable grounds for believing that he has committed a category 3 or 4 offence. The notice shall be in a prescribed form, and state that the person is alleged to have committed the offence set out. It shall state that if within 21 days after the date of notice, or such longer period as may be specified, the person addressed remedies the default which constitutes the offence insofar as practicable to the satisfaction of the ODCE and pays a prescribed amount to it accompanied by the notice, then a prosecution will not be instituted.

The person to whom a notice is issued may make the payment specified within the period specified in the notice, in which case a prosecution in respect of the alleged offence shall not be instituted.  If the default is remedied to the satisfaction of the ODCE and payment is made, then no prosecution shall be instituted at all in respect of the alleged offence. In a prosecution for the offence, the onus is on the defendant to prove that he has have paid the administrative fine.


Administrative Fines II

The Registrar of Companies may deliver a notice, if it has reasonable grounds for believing that the person concerned is in default in the delivery, filing or making of any return or similar document, being a default that constitutes a category 3 or 4 offence.

The notice must be in a prescribed form, and state that the person has failed to make the relevant delivery, filing or return under a specified provision of the Act.  It is to state that if the default is remedied and the prescribed amount is paid to the Registrar within 21 days or such later period as may be specified, that the person shall not be prosecuted.

The person to whom the notice is delivered may make payment to the Registrar of the amount specified.  The alleged offence may not be prosecuted in the period specified in the notice and shall not be prosecuted at all, provided that the default is remedied to the satisfaction of the Registrar.


False Statements and Returns I

A person is guilty of a category 2 offence if in purported compliance with a requirement of the Companies  Act, he answers a question, gives an explanation, statement, or lodges any return, certificate, balance sheet or document, that is false in a material particular and he knows that it is false in a material particular or is reckless as to whether it is or is not.

A person is guilty of a category 2 offence, if he provides false information in any electronic filing, knowing or being reckless as to whether it is false, and the information is subsequently transmitted in a return, to the Registrar.

Where a person is convicted on indictment of the above offences and the court is of the opinion that any act, omission or conduct which constituted the offence substantially contributed to the company being unable to pay its debts, prevented or seriously impeded the orderly winding up of a company, or substantially facilitated the defrauding of the creditors of the company or any other person, then, notwithstanding that it is a category 2 offence, the maximum term of imprisonment and maximum fine for which the person is liable is that provided in respect of a category 1 offence.


False Statements and Returns II

An officer of a company is guilty of a category 2 offence, if he destroys, mutilates, falsifies, or is privy to such destruction, mutilation or falsification of any document or books affecting or relating to the property or affairs of the company, or if he makes or is a party to the making of any false entry in any such book or document. It is a defence to prove that in so doing, the person had no intention to defeat the process of the law and enforcement of the Act.

An officer of a company is guilty of a category 2 offence, if he fraudulently parts with, alters, or makes an omission in any book or document affecting or relating to the property or affairs of the company, or is party to the fraudulent parting with, altering or making of an omission in any such book or document.


Evidential Matters I

In proceedings where it is proved that the defendant was aware of the basic facts concerning the default, it shall be presumed that the defendant permitted the default, unless he shows that he or she took all reasonable steps to prevent it or that by reason of circumstances beyond his control, he was unable to do so.

The basic facts mean such of the facts relating to one or more acts or omissions which constituted the default as can reasonably be regarded as indicating at the relevant time, the general character of those acts or omissions.  “Permitted” in relation to the default, means permitted in breach of the defendant’s duty as an officer of the company.  Proceedings in this context mean proceedings for an offence under the Act, which provides that a company in default shall be guilty of an offence.

A document purporting to be a copy of the inspector’s report is admissible in civil proceedings of the facts set out in it without further proof unless the contrary is shown.  It is admissible as evidence about any matter contained in the report.


Evidential Matters II

Documents prepared under the Act and purporting to be signed by any person are deemed to have been signed by that person, in the absence of evidence to the contrary.  Documents submitted under the Act on behalf of a person are deemed to be submitted by that person unless it is submitted without that person’s knowledge or consent.

A document which purports to be an extract from a document kept by the Minister, ODCE, Inspector, Central Bank or a true copy or extract from the original document is, presumptively so.

A copy of another State’s companies legislation shall be prima facie evidence for the purpose of proving incorporation of the company.

Where a person gives an answer in response to a question put to him in the exercise of powers in the course of an investigation by the ODCE and certain others, the answer may be used in evidence against him in any civil proceedings. It shall not be used in evidence against him in criminal proceedings, except in a prosecution for perjury. This relates to questions

A declaration made outside the State is deemed to be validly made, if it is made before a person entitled to practice as a solicitor in the State, or is made before a person entitled to administer oaths in the place concerned under that law.  The provisions of the EU Convention apply in relation to authentication of documentation including statutory declarations.  Similarly, the Hague Convention may be invoked in relation to non-EU countries.


Proof by Certificate

In any legal proceedings (including proceedings relating to an offence), a certificate by an appropriate officer in the course of his functions is evidence in the absence of proof to the contrary of the following:

  • that relevant records and that a particular item has not been received;
  • that a particular notice was not given to a stated person on a stated date, or at all or that it was so given;
  • or the documents were filed or registered at particular times.

The existence of a foreign body corporate may be proved by a certificate signed by a person purporting to hold the office of Registrar in another jurisdiction, certifying that the named company has been incorporated or registered in that country.  It is prima facie evidence of such fact, without proof of the signature of the person signing the certificate or that the person holds the office which he purports to hold.

A certificate of the appropriate officer or the Registrar is admissible as evidence in legal proceedings, without proof of the signature or that the officer was the proper person to sign the certificate. The proper officer may be any officer including the Registrar, ODCE, departmental Central Bank.


Assisting a Jury

In a trial on indictment, the trial judge may order that copies of the following documents are given to the jury as the judge considers appropriate:

  • any document admitted in evidence at the trial;
  • a transcript of the opening speeches of counsel;
  • charts, diagrams, graphics, schedules and summaries of evidence;
  • a transcript of the whole of evidence given at the trial;
  • a transcript of the judge’s charge to the jury;
  • any other document which in the opinion of the judge would assist the jury in its deliberations.  This may include an affidavit by an accountant summarising, in a form that is likely to be comprehensible to the jury, any transactions by the accused or other persons relevant to the offence.

If the prosecutor applies to the trial judge for an order in respect of the last type of document, it shall give a copy of the document to the accused in advance.  The trial judge shall take into account representations made on behalf of the accused in relation to it.

Where a trial judge makes an order that an affidavit is given, the judge may in the appropriate case, with a view to assisting the jury, require the accountant who prepared the affidavit to explain to the jury any relevant accounting procedures or principles.


References and Sources

Primary References

Companies Act 2014 S.865- S.866 (Irish Statute Book)

Companies Act 2014: An Annotation (2015) Conroy

Law of Companies 4th Ed.  (2016)   Ch.29  Courtney

Keane on Company Law 5th Ed. (2016) 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

Shorter Guides

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

UK Sources

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