Examinership, Receivership and Liquidation in Ireland Essay

2989 Words Nov 23rd, 2010 12 Pages
The collapse of the Irish economy has triggered a substantial increase in the number of companies in Ireland which are being deemed insolvent and which are no longer in a position to continue operating as viable entities. This has caused the companies directors, creditors and shareholders to seek remedies available under Irish law. The law in Ireland regarding companies in financial difficulties was originally set out by the Companies Act 1963, which was amended in 1990, and then again in 1999. All cooperate entities must adhere to the legislation set out under the Act and their individual memorandum of association and articles of association, which together constitute the constitution of a company.

The principal remedies for dealing
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Where it is discovered that the court has been misled, the entire application will be tainted. If this is discovered early in the proceedings, the examiner will be discharged where the lack of good faith is sufficiently serious. However, a lack of candour and good faith will not always result in a refusal to confirm an examiner’s proposals, as seem in Re Selukwe Ltd. There are no particular qualification requirements for an examiner. They can’t have been an officer of the company within the last 12 months. McCracken J held in Re Tuskar Resources plc that there was no bar on the person who provides the independent person’s report from acting as examiner. The person appointed is entitled to court-fixed remuneration and to costs. He can employ staff to assist or may use company staff. Section 10 CA 1990 provides that any liabilities incurred during the protection period are deemed to be legit examiner expenses. These liabilities would include new borrowing. Forde and Kennedy explain that the reason why the examiner may certify liabilities is that there may otherwise be a danger that the company’s survival as a going concern may be prejudiced. Section 29 CA 1990 gave these liabilities and expenses priority over creditors where a scheme of arrangement was drawn up or a winding up ensued. This provision was one of the most criticised. It was deemed to subvert the whole lending process, as secured creditors lost priority. This had the potential to severely prejudice these

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