A company incorporated under the Companies Act has its own legal personality and can institute legal proceedings in its own name. However, difficulties can arise where proceedings are commenced on behalf of a company where this has not been properly authorised by the company. In addition, where a company is a party to proceedings, in the absence of certain limited exceptions, it must retain legal representation to act on its behalf.
Authority to Institute Proceedings
Directors of the Company
The ILP is a regulated common law partnership structure which will be of significant interest to international managers marketing to EU investors and wider global markets.
The Bill seeks to introduce a number of important changes which aim to position the ILP as a leading EU fund vehicle for private equity and sustainable investments.
Although the Bill remains subject to further approval as it passes through the legislative process, this is nonetheless a very positive and welcome development.
When a company is unable to pay its debts as they fall due, a director’s duties shift from the management of the company for the benefit of the shareholders, to ensuring the company’s creditors are not disadvantaged by the company continuing to trade.
The directors should seek and comply with professional advice from their auditors and solicitors regarding any decision to continue trading for an interim period.
The sale of gift vouchers and their terms and conditions is largely unregulated in Ireland.
Although there is no specific legislation, gift vouchers provided to consumers are subject to the provisions of general consumer protection legislation, such as the Consumer Protection Act 2007.
Gift vouchers that cover a wide range of traders and retailers such as the “All4One” vouchers come within the definition of “electronic money” in the European Communities (Electronic Money) Regulations 2011 are subject to the provisions of those Regulations.
In the recent decision of Re M.D.Y. Construction Ltd [2018] IEHC 676 the Examiner sought to have proposals for a scheme of arrangement confirmed by the High Court pursuant to section 541 of the Companies Act 2014 (the "Act"). The most interesting feature of the case was that the scheme of arrangement was proposed for approval by the Interim Examiner before his appointment was confirmed by the High Court.
Arrangement to be approved the day after application to confirm appointment
In a recent application for directions from the High Court, the Office of the Director of Corporate Enforcement (the “ODCE”) brought a motion to compel a liquidator contest an appeal by directors of a restriction order made against them in the High Court.
Section 683 of the Companies Act 2014 (“CA14”) requires the liquidator of an insolvent company to apply for an Order restricting the directors. It does not require liquidator to contest an appeal by directors. The ODCE ultimately withdrew the application and paid costs, but the application raises concerns for all liquidators.
It is now well documented that many owners’ management companies are facing the prospect of litigating to recover the cost of remedial works for defective developments or passing the cost onto the owners themselves. Given the passage of time since the construction of the developments and the insolvency of many of the developers and contractors involved in those projects following the financial crisis, management companies often face an uphill battle to recover damages.
Companies in Financial Difficulties Duties and Liabilities of Directors under Irish Law
Matheson Directors' Guidance Series
Companies in Financial Difficulties Duties and Liabilities of Directors under Irish Law
Fergus Bolster and Emma Doherty 10 October 2018
www.matheson.com
Companies in Financial Difficulties Duties and Liabilities of Directors under Irish Law
Introduction
This document summarises the principal duties and potential liabilities of directors under Irish law where a company is in financial difficulty.
In the matter of Mouldpro International Limited (In Liquidation) and in the matter of The Companies Acts 1963 – 2005 the Court of Appeal reduced the fees of the liquidator in respect of three of the four periods of the six-year liquidation of Mouldpro International Limited ("Mouldpro"), finding that the hours claimed for were "neither reasonable nor necessary".