Examiner and the Directors I
The examiner is an officer of the court. He is under the control of the court and owes duties of utmost good faith to it. The principal function of the examiner is to investigate the affairs of the company and prepare a report about its prospective survival or otherwise. The report is made for the court.
The court may vest the examiner with the powers of a liquidator. The examiner may establish a committee of creditors. The court may order the establishment of a committee of examiners. There will generally be up to five members. Three usually represent the largest unsecured creditors.
The appointment of an examiner does not automatically restrict the powers of the directors. However, the court may restrict their powers and may order that the examiner takes over their functions and powers.
Examiner and the Directors II
It must be just and equitable to confer the directors’ powers on the examiner. Such an order is most likely to be made where it is shown that the directors are acting to the detriment of the company, its employees or the creditors as a whole. The transfer of powers may be necessary to prevent the dissipation of assets.
The examiner has the power to convene, set the agenda for, and preside at meetings of the board of directors and general meetings of the company to which he or she is appointed. He may propose motions or resolutions and give reports to such meetings.
An examiner is entitled to reasonable notice of, to attend and be heard at, all meetings of the board of directors of a company and all general meetings of the company to which he or she is appointed. Reasonable notice requires a description of the business to be transacted at any such meeting.
Formerly, there were no formal qualification requirements for examiners in Ireland (unlike the case in Northern Ireland and England). Certain persons were and are prohibited from acting. This includes directors and shareholders those with a business or family relationship or connection with them.
The 2014 Act provides that a person shall not be qualified to act as an examiner unless he would be qualified to act as a liquidator. A person who is not qualified and purports to so act is guilty of a category 2 offence.
The examiner must
- be a member of a prescribed accounting body in possession of a practising certificate and not restricted or prohibited by that organisation;
- hold a practising certificate from the Law Society and not be prohibited from acting as a liquidator;
- be a member of such professional body as the Irish Accounting and Auditing Supervisory Authority may recognise and be authorised to pursue the activities including and not prohibited from being a liquidator;
- be a person being entitled under the laws of any EEA state to act as a liquidator in insolvency proceedings;
- be a person with recognised practical experience of winding-up and knowledge of the relevant law;
Persons in the last category must within 2 years of the commencement of the legislation, make an application and satisfy the Supervisory Authority, that they have the requisite winding up experience and knowledge and that they are in the opinion of the Authority, after consultation with ODCE, a fit person to act as a liquidator.
The examiner must deliver a copy of his appointment to the Companies Registration Office within three days. He must publish notice of his appointment in two daily newspapers within three days of his appointment. Particular of the appointment must be published in the Companies Registration Office Gazette
During examinership, the words “in examination” must appear on invoices, orders, letters, etc. An examinership takes effect when the Court directs. The examiner may resign. He must make an application to court specifying reasons and date of proposed resignation. The court may make such order as is appropriate.
The company website must confirm that the company is in examinership.
Powers and Liability
An examiner is presumptively liable in a person capacity on contracts he enters in the course of his functions. The contract may provide that the examiner will not be personally liable. If the examiner does incur liability, he is entitled to an indemnity from the assets of the company.
An examiner, creditor or shareholder may apply to the court to have it determine matters regarding the performance of the examiner’s functions.
A committee of creditors may be appointed to assist the examiner. He may arrange for its appointment of his own volition or at the direction of the Court. The examiner must meet the committee about certain matters. Where the examiner formulates proposals, a copy must be provided to the committee, which may express an opinion on behalf of the creditors or class of creditors represented.
An examiner enjoys the powers of the auditor in respect of requiring co-operation and information from the company and others. He has the power to convene meetings of the members and directors. He can set the agenda and presides. He is entitled to notice of other meetings. He may propose resolutions.
The examiner has powers to prevent or modify actions on behalf of the company which may cause detriment. They must relate to the income or assets of the company. The examiner must form the opinion that the proposed action, omission or conduct is likely to be to the detriment of the company or an interested party. Where these conditions are satisfied, the examiner may take steps to prevent or rectify the detriment.
Costs and Remuneration I
The court may from time to time make such orders as it thinks proper for payment of the remuneration and costs of and the reasonable expenses properly incurred by an examiner. Unless the court otherwise orders, the remuneration, costs and expenses of an examiner are paid and the examiner is entitled to be indemnified, out of the company’s revenue or the proceeds of realisation of the assets (including investments).
The remuneration, costs and expenses of an examiner which have been sanctioned by an order of the court are paid in full in priority to any other claim, secured or unsecured, under any compromise or scheme of arrangement or in any receivership or winding up of the company.
Liabilities incurred by the company to which an examiner has been appointed which are treated as expenses properly incurred by the examiner, are paid in full in priority to any other claim (including a claim secured by a floating charge), but after any claim secured by a mortgage, charge, lien or other encumbrance of a fixed nature or a pledge, under any compromise or scheme of arrangement or in any receivership or winding up of the company.
Costs and Remuneration II
A claim, in this context, includes any payment in a winding up of the company in respect of the costs, charges and expenses of that winding up (including the remuneration of any liquidator).
The terms of the examiner’s remuneration costs and expenses, as well as the expenses of the examinership, are fixed by the court as part of the scheme. The examiner’s fees may be payable out of current income/ revenue unless otherwise ordered by the court.
The expenses and costs of examinership have priority to those of the holder of a floating charge in respect of the floating charge proceeds. It does not have priority over the proceeds of the fixed charge, including the fixed charge elements of a fixed and floating charge debenture.
The examiner must give an account of work done and expenses incurred in his application for remuneration, costs, and expenses. The court may make such order as it sees fit.
In recent times, the courts have taken a more critical approach to applications to approve remuneration in examinership. The court is to have regard, amongst other factors, to the complexity of that work, importance, timing and the degree of skill employed.
The examiner’s fees and costs must be reasonable in themselves and the work done must be itself, reasonable and necessary. If the examiner goes beyond his remit, he may be denied remuneration.
Remuneration may be denied entirely if the examiner has failed significantly in his duties as an officer of the court. If the examiner is appointed to a number of companies, there should be an apportionment. relative to the work done in respect of each.
If the scheme fails, the examiner may apply to the court for his costs and expenses. They retain priority. The court may make orders for remuneration, costs, and reasonable expenses, properly incurred.
References and Sources
Companies Act 2014 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) 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
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