The recent decision of the Court of Appeal in Fennell v Appelbe  [2022] IECA 160, upholding the decision in the High Court, appears at first glance to endorse a stricter approach to restriction proceedings with regard to non-executive directors.

On closer analysis however, it is clear that the judgment is very much fact specific and not inconsistent with the decision of the Supreme Court in the Re Tralee Beef & Lamb Limited [2008] 3 IR 347 case and the decisions of the High Court in cases such as:

Introduction

The High Court recently in an ex tempore (unwritten) judgment (to be followed by a more detailed written judgment) approved a scheme of arrangement under Part 9 of the Companies Act 2014 in what may be a template for future restructurings in the aviation sector and a further example, following on from the Weatherford and Ballantyne cases, of the Irish courts’ willingness to facilitate large international restructurings.

The case concerned the Nordic Aviation group, the largest regional aircraft lessor and the fifth largest aircraft lessor globally.

The Office of the Director of Corporate Enforcement (“ODCE”) recently published guidance regarding the duties of directors of Irish companies in the context of the Covid-19 pandemic. The publication can be accessed here, and provides a welcome reference point for the directors of Irish companies which continue to navigate the challenges associated with trading during this uncertain period.

Timing and Objectives

An EU directive aimed at harmonizing Member State restructuring and insolvency laws (the “Directive”) was published in the Official Journal on June 26, 2019 and entered into force on July 16, 2019. Member States are required to adopt and publish compliant laws and regulations by July 17, 2021.

The United Kingdom ("UK") has established itself as a leading restructuring destination in Europe.

The main themes to be considered by those in the financial services industry in 2018 will include increased regulation, protection of data, the push for transparency from Europe along with the ongoing uncertainty of Brexit. We have flagged some key dates to watch out for in the upcoming year.

The “Waterford Crystal” Judgment

Introduction

The Court of Justice of the European Union (“CJEU”) delivered its judgment in Hogan & Others v. Minister for Social and Family Affairs, Ireland, Attorney General [2013] CJEU Case C-398-11 on 25 April 2013. 

The Minister for Justice Equality and Law Reform has published the European Communities (European Order for Payment) Regulations 2008 . The Regulations are effective from 12 December 2008.

The Regulations set out the effect on domestic legislation of Regulation 1896/2006 creating a European Order for payment procedure. The Regulations amend Section 25 of Courts and Court Officers Act 1995. The Master of the High Court is designated as the authority through which the procedures will operate in this jurisdiction.

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.