Introduction

Provider Beware! Bankruptcy Payment Order May Be Required to Pay a Bankrupt's Pension to Official Assignee

Welcome to day 3 of our '12 Days of Christmas' series. Today we look back on the effect of bankruptcy on a personal pension policy.

Overall 2018 has produced a number of positive judgments from the perspective of lenders and insolvency practitioners.

In particular, the courts delivered many useful judgments disposing of numerous challenges to the enforceability of loans and security and, also, restricting abuse of the courts’ processes.

Contemptuous McKenzie Friends

In a recent judgement, the Supreme Court has upheld a High Court order for costs against a director of a number of companies (theCompanies) which were involved in proceedings with First Active plc (First Active), despite the fact that the director was not a party to the proceedings.

The Court took the view that the director (Mr Cunningham), who also owned or controlled the Companies, had funded the proceedings and should be held accountable for the costs.

Background to the order for costs

The Supreme Court has again urged the legislature to consider whether the outright prohibition on professional litigation funding and the assignment of bare causes of action continues to be warranted as the ever-increasing cost of litigation is putting access to the courts beyond the reach of many.

While the Court accepted that this is an area in need of careful and considered legislative reform, it warned that unless a real effort is made by the legislature to improve access to justice, it will have "no option" but to step in, "undesirable and all as unregulated change might be."

Many of the statistics reflecting trends in Irish economic activity have remained constant over the past few years. GDP has been rising, unemployment has been falling and inflation has remained fairly static. The recent publication of the Courts Service Annual Report 2017 confirms a similar consistent pattern in creditor litigation and enforcement, for the calendar year 2017.

Default judgments

Must the legal owner of securitised debt and related security disclose in proceedings it brings that it is a bare trustee for the beneficial owner? In addition, is that trustee obliged to join the beneficial owner as a party to those proceedings?

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.

On 1 May 2018, the new insolvency legislation came into force. The (separate) Continuity of Enterprises Law as we knew it until recently, has ceased to exist and has been amended and fully incorporated into Volume XX of the Code of Economic Law.

On 6 February 2018, the Irish Supreme Court agreed to hear an appeal in ACC Loan Management Limited v Rickard1 ("Rickard") in relation to the appointment of a receiver in aid of execution on the basis that the issue was one of general and public importance.

Background