Directors’ Powers and Business
On the commencement of liquidation, the company must cease to carry out business, except in so far as required for the beneficial winding up. The corporate state and powers continue until the company is dissolved.
On the appointment of a liquidator, other than a provisional liquidator, all the powers of the directors cease. In the case of a members’ voluntary winding up, the members may sanction the continuance of the powers.
In the case of winding up by the court or a creditors’ voluntary winding up, the committee of inspection, or if there is no such committee, the creditors, may sanction, in either case, with the approval of the liquidator, the continuance of the directors’ powers.
The continuance of the directors’ powers insofar as sanctioned, does not give precedence to any act or decision of the directors in the course of the winding up over a decision of the liquidator in the matter concerned. No decision or act of the directors in respect of a matter within the scope of the liquidator’s statutory powers may be done without the prior consent of the liquidator.
The court may, however on the application of a person aggrieved, grant such relief as it thinks appropriate from the sanction of invalidity above, if it is satisfied that the person (not being an officer of the company), acted in good faith in relation to the matter. The application must be made on notice to the liquidator and every creditor who has submitted proof of his claim and each contributory on the list of contributories.
Where the court has made a winding-up order or appointed a provisional liquidator a statement in prescribed form must be filed in court, by the directors or such one or more of the following persons as the court may order
- officers of the company;
- those who have taken part in the formation of the company within the last 12 months,
- those in employment or officers of the company within the last 12 months.
The statement is to show
- particulars of the company’s assets, debts, and liabilities;
- the name, residence, and occupations of creditors;
- securities held by creditors;
- dates of security;
- such other information as may be prescribed or the court may require.
The statement shall be filed within 21 days or such extended time as the court may appoint. The period runs from the appointment of a provisional liquidator or winding up.
An equivalent but less detailed statement is required in a voluntary winding up. In a members’ voluntary winding up, the statement is required as part of the summary approval procedure. In a creditors’ voluntary winding up, the directors must prepare a statement of the company’s affairs with a list of creditors and cause it to be laid before the initial creditors’ meeting.
In a court ordered winding up, one or more persons who have made the statement shall serve a copy on the liquidator within 21 days after the commencement of winding up or appointment of a provisional liquidator. The person who has made the statement may be required by the liquidator to provide such further information as he may reasonably require and which they may reasonably give.
Every person making a statement or affidavit shall be allowed, from the assets of the company, such costs, and expenses incurred in relation to the statement and affidavit as the court may allow.
The person who has made the statement may be required to give such other assistance as they are in a position to give to the liquidator during the course of and for the purpose of examining the company’s affairs. Failure to comply with any of these obligations is an offence. A court order may be made on foot of an application against the person concerned requiring him to comply with the request.
A person who is required to make or concur in making any statement of affairs shall, before incurring any expenses, apply to the liquidator for his sanction and submit to the liquidator a statement of his reasonable costs and expenses and if there is no liquidator, shall submit it to the court. No person shall be allowed out of the assets of the company any costs and expenses in the preparation of the statement as have not been sanctioned by the liquidator or court.
Any person, who is a creditor or member of the company, is entitled to inspect personally or by agent, the statement and to be furnished with a copy of it.
Winding up to be Notified
Every invoice, order for goods or business letter issued by or on behalf of the company or a liquidator on which the company’s name appears, is to contain a statement that the company is being wound up. This is in addition to the obligation to state that a receiver has been appointed if that is also the case.
Any website of a company that is being wound up, and any e-mail sent to a third party, shall contain a statement to this effect.
Where the winding up commences within one year of a name change, the former name, as well as the existing name, shall appear on all notices and advertisements in relation to the winding up and on websites and e-mail.
Where the company has a provisional liquidator appointed, this is to be stated.
Default in respect of the above obligation is a category 3 offence on the part of the company, the liquidator or others in default.
Papers and Documents
Upon appointment of a liquidator, the liquidator is to take into his custody and under his control, all books, records and the seal of the company, and all property to which the company appears to be entitled. Any person without lawful authority, having company records, books, etc. in his possession or who later acquires them, shall surrender them immediately to the liquidator.
No person shall be entitled to a lien against the liquidator or a provisional liquidator over any deeds, documents, records, bills or invoices, financial statements or be entitled to withhold possession of them. Where a mortgage, charge or pledge has been created by deposit of documents, the production of documents and papers to the liquidators is not to prejudice the mortgage, charge or pledge.
Where, a liquidator has possession of any documents or papers of a receiver of the property of the company or where the receiver is entitled to examine them, the liquidator or provisional liquidator shall, unless the court otherwise orders, make the documents available for inspection by the receiver at all reasonable times. Failure to do so is a category 3 offence.
Committee of Inspection I
A Committee of inspection in a court liquidation may be established at the initiative of the liquidator or may be directed on the requisition of a certain proportion of creditors, without a court order. The creditors may appoint a committee of inspection in a creditor’s voluntary winding up.
The creditors may appoint a committee of inspection consisting of not more than five members. The company may, either subsequently in general meeting appoint up to three persons, but there may not be more than eight members in total. The creditors may resolve that such persons may not be members and in this case, they are not members, unless the court so appoints them.
A person ceases to be a member if he is adjudicated bankrupt or enters an arrangement with his creditors or he is absent from two consecutive meetings without the leave of the members or creditors (in accordance with who appointed him). A committee member may be removed by resolution of the creditors or by the company at a meeting of which not less than seven days’ notice is given, depending on who appointed him, as the case may be.
Committee of Inspection II
Upon a vacancy occurring in the committee, the liquidator shall summons a meeting of the creditors, or if the person who vacated office had been appointed by the company, of the company, to fill the vacancy.
The meeting may, by resolution, reappoint the person who vacated the office or it may appoint another. If the liquidator is of the opinion that it is unnecessary for a vacancy to be filled, he or she may apply to the court and the court may order that the vacancy shall not be filled or shall be fulfilled only in the circumstances specified. The continuing members of the committee, if not less than two, may act notwithstanding a vacancy.
The creditors may resolve that all or any of the persons appointed by the company ought not to be members of the committee and if they so do, they shall not be qualified to act as members, unless the court otherwise directs. The court may appoint other persons on such application to be members in place of the persons concerned.
A committee of inspection shall meet at such times as they appoint. The liquidator and any member of the committee may also call a meeting if and when he considers necessary.
The committee may act by a majority of members present but shall not act unless a majority of the committee is present. A member of a committee may resign by notice in writing given to the liquidator.
A meeting of the committee of inspection is required on the anniversary of the winding up. Alternatively, a meeting of the creditors may be called. The meeting is to be called within 28 days of the anniversary of the winding up.
Where there is a conflict between the wishes of the committee of inspection and the wishes of the creditors or contributories, the latter is to take precedence. The liquidator may convene meetings to ascertain the wishes of the respective groups.
Members of a committee shall not make a profit from the winding up, except with leave of the court or in the case of a members’ voluntary winding up, a resolution of the company, or a creditors’ voluntary winding up, a resolution of the creditors.
Accounting and Returns I
A liquidator in a court ordered or creditors voluntary winding up is obliged after 12 months and annually thereafter, to summons a meeting of the creditors or of the committee of inspection. In a members voluntary winding up, a meeting of the members must be summoned annually by the liquidator, during the liquidation.
The liquidator must give seven days’ notice and must lay before the meeting an account of the acts and dealings during the preceding year. A copy of this account is to be filed with the CRO within seven days.
The liquidator must make a return in relation to the winding up in a prescribed form, after the first year, and at six monthly(or longer if prescribed) intervals thereafter. The return must be made within 14 days of the end of each year or months’ period. The court may order that this obligation does not apply. The failure to do so is a category 3 offence.
Accounting and Returns II
Formerly, a court appointed (official) liquidator was obliged to lodge accounts of receipts and payments with the examiner’s office on a periodic basis. This requirement no longer applies.
In a court-ordered liquidation, the court may require a final order application to be made by the liquidator, when it appears to him the affairs of the company have been wound up in full. If no order is made, the liquidator, in both court ordered liquidations and voluntary liquidations, is to prepare a final account and present it at a general meeting and at a meeting of the creditors within 28 days.
The account and a return of the meeting are to be lodged with the CRO, within seven days. The company is deemed dissolved three months after the date of registration of the account and return.
Examination by Court
The court has the power to summon persons for examination. It has the power to make an order for arrest and seizure of books, papers or movable property. This applies to all liquidations. The courts may make orders for examination of persons who are
- directors of the company;
- known or suspected to have company property;
- suspected to be indebted to the company and
- persons whom the Court deems capable of giving information in relation to the affairs, promotion, and formation of the company.
Such persons can be examined and required to answer questions. Their answers are not admissible in civil or criminal proceedings. They are not entitled to withhold answers on the basis that they might be thereby incriminated. The purpose of the examination is to investigate the company’s affairs.
The application may be made by the ODCE, the liquidator or exceptionally, by a creditor or a shareholder. The court will not allow the examination to be used for extraneous, unnecessary, oppressive or vexatious purposes; The examination must be necessary.
Examination Process I
The court may examine on oath any person so summoned concerning any such matters, either verbally or by written interrogatories (which he is required to sign). It may require any such person to produce accounting records, deeds, instruments, documents or papers relating to the company, in his custody or power.
Before the examination takes place, it may require any such person to place before it a statement, in such form as the court may direct, of any transactions between him and the company, of a type or class which the court may specify.
A person so examined is not entitled to refuse to answer a question put to him on the grounds that his answer might incriminate him. Any answer given may be used against him, except in proceedings for the prosecution of that person for an offence (other than perjury).
Examination Process II
If a person, without reasonable excuse, fails to attend the examination or fails to comply with the requirements lawfully made, he is deemed guilty of contempt of court and liable to be punished accordingly.
If in the opinion of the court, it is just and equitable to do so, it may direct that the costs of the examination be paid by the person concerned
If, in the course of examination of a person under the above power, it appears to the court that any person being examined is indebted to the company or is in possession or control of any of the company’s money, property or books, the court may, of its own motion or on application of the ODCE, order such person to pay to the liquidator the amount of the debt or any part of it, or pay or deliver or transfer any money, property or books or any part of them, as the case may be, on such terms as the court may direct.
Search and Inspection
Where there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding or delaying examination, the court may cause that person to be arrested. The person’s books, documents and movable personal property may be seized, secured or detained until such time as the court may order.
Where the court makes an order on the above terms, it may on the application of the ODCE or liquidator, make a further order permitting the applicant or another person specified, to enter into premises within 30 days, including a dwelling house, owned or occupied by the person, search the premises and seize any money, property or books.
The person so authorised shall report to the court, the outcome of such action on foot of the court order. The court shall make directions regarding the disposition of anything seized under of the order. It is an offence to obstruct entry, seizure or search.
Delivery of Assets
In a winding, up, on notice in writing being given by the liquidator to a contributory; trustee; receiver; banker; agent or officer; of the company, they shall, within the period specified in the notice, pay, deliver, or transfer to the liquidator any money, property, books which are held by them and to which the company is prima facie entitled.
The court may exercise a power of its own motion, or on application of the liquidator, at any time after the appointment of a liquidator or provisional liquidator, require any of the above categories of person, to pay, deliver, surrender, transfer to the liquidator, any money, property or books or papers in his possession to which the company concerned is prima facie entitled.
The liquidator is deemed to have the same status as a court-appointed receiver for this purpose. Accordingly, obstruction of the liquidator would constitute contempt of court.
An order may be made by the court on an application made by the liquidator, a creditor or a shareholder, for the return of company assets to the liquidator. If the court is satisfied that the property was disposed of for the purpose of perpetrating a fraud. The Court will grant the order if it believes it is just and equitable to do so.
The court may order the arrest of persons or the seizure of books, personal property and papers in all liquidations. The court may make orders for the payment, delivery up, search and seizure of money, property, books or papers of the company. The Order may permit the ODCE or the liquidator to enter premises, search premises, use force and seize property, money, books, papers of the company.
The court may, in any of the below cases, at any time after commencement of liquidation on proof of probable cause for believing that a contributory, director, shadow director, secretary or other officer of the company is about to leave the State, abscond or remove or conceal any of his property for the purpose of evading payment of calls or avoiding examination about the affairs of the company, cause the person concerned to be arrested, and have the relevant books, papers, movable personal property seized or secured.
The person may be detained until such time as the court orders. The court may exercise these powers of its own motion, or on the application of a creditor, the Director of Corporate Enforcement or other interested persons.
Persons may be arrested who are about to abscond or are absconding, in the course of a court-ordered or voluntary winding-up. Officers and shareholders who are or are about to abscond, leave the country or conceal company property may be arrested and examined in relation to the company’s affairs.
Orders Against Officers
The court, on the application of the ODCE, a liquidator or of its own motion, may order officers of companies to attend at creditors’ meeting, members meeting, contributory meetings or meetings of the committee of inspection.
In a court-ordered liquidation, the Court may make orders for the inspection of books and papers by creditors, shareholders or by the ODCE. An application may be made to Court by the ODCE in a voluntary winding up for an order for the inspection of books in the possession of the company or its officers.
An order may be granted preventing officers, shareholders and certain other persons connected with the company from reducing their assets or removing them from the state. The court may make orders on the application of the ODCE, directors, liquidators or others.
The order may be made against a person, not to reduce his assets within the State below a specified amount, if the court is satisfied that the applicant may be sued or may be personally liable on foot of an order in the liquidation, where there are grounds for believing he may remove or dispose of assets for the purpose of evading his obligations or frustrating a court order.
The court on application of the ODCE, a liquidator or of its own motion, may require the attendance of any officer of the company at creditors meetings, meetings of members or contributories or at meetings of a committee of inspection.
References and Sources
Companies Act 2014 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch.26 Courtney
Keane on Company Law 5th Ed. (2016) Part VIII 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