Companies Act , 1990

PART I Preliminary

1 Short title, collective citation and construction.

1.—(1) This Act may be cited as the Companies Act, 1990.

(2) This Act and the Companies Acts, 1963 to 1986, may be cited together as the Companies Acts, 1963 to 1990.

(3) The Companies Acts, 1963 to 1986, and this Act shall be construed together as one Act.

2 Commencement.

2.—This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.

3 Interpretation.

3.—(1) In this Act, unless the context otherwise requires—

“books and documents” and “books or documents” include accounts, deeds, writings and records made in any other manner;

“child” includes a step-child and an adopted child and “son”, “daughter” and “parent” shall be construed accordingly;

“the Companies Acts” means the Companies Act, 1963, and every enactment (including this Act) which is to be construed as one with that Act;

“connected person” has the meaning assigned to it by section 26;

“contravention” includes failure to comply;

“daily default fine” has the meaning assigned to it by section 240 (6);

“the Minister” means the Minister for Industry and Commerce;

“prescribe” means prescribe by regulations;

“the Principal Act” means the Companies Act, 1963;

“recognised stock exchange” has the meaning assigned to it by subsection (2);

“related company” has the meaning assigned to it by section 140;

“shadow director” has the meaning assigned to it by section 27.

(2) (a) A recognised stock exchange for the purposes of any provision of the Companies Acts is an exchange prescribed by the Minister for the purposes of that section.

(b) The definition of “recognised stock exchange” in paragraph (a) is in substitution for the definition in section 2 (1) of the Principal Act.

(3) The Minister may make regulations in relation to any matter referred to in this Act as prescribed or to be prescribed.

(4) In this Act—

(a) a reference to a Part or section is to a Part or section of this Act unless it is indicated that a reference to some other enactment is intended;

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended; and

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

4 Periods of time.

4.—(1) Where the time limited by any provision of this Act for the doing of anything expires on a Saturday, Sunday or public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, Sunday or public holiday.

(2) Where in this Act anything is required or allowed to be done within a number of days not exceeding six a day that is a Saturday, Sunday or public holiday shall not be reckoned in computing that number.

5 Orders.

5.—The Minister may by order revoke or amend an order made by him under any provision of this Act, other than section 2.

6 Repeals.

6.—(1) The following provisions of the Principal Act are hereby repealed — sections 147, 162 (inserted by section 6 of the Companies (Amendment) Act, 1982), 163, 165 to 173, 184, 294, 296, 380 and 385, and the Seventh and Tenth Schedules.

(2) The following provisions are also hereby repealed—

(a) Regulation 8 of the European Communities (Companies) Regulations, 1973,

(b) section 6 of the Companies (Amendment) Act, 1977, and

(c) section 21 of the Companies (Amendment) Act, 1986.

PART II Investigations

7 Investigation of company's affairs.

7.—(1) The court may appoint one or more competent inspectors to investigate the affairs of a company in order to enquire into matters specified by the court and to report thereon in such manner as the court directs—

(a) in the case of a company having a share capital, on the application either of not less than 100 members or of a member or members holding not less than one-tenth of the paid up share capital of the company;

(b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company's register of members;

(c) in any case, on the application of the company;

(d) in any case, on the application of a director of the company;

(e) in any case, on the application of a creditor of the company.

(2) The application shall be supported by such evidence as the court may require, including such evidence as may be prescribed.

(3) Where an application is made under this section, the court may require the applicant or applicants to give security, to an amount not less than £500 and not exceeding £100,000, for payment of the costs of the investigation.

(4) Where the court appoints an inspector under this section or section 8, it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible.

8 Investigation of company's affairs on application of Minister.

8.—(1) Without prejudice to its powers under section 7, the court may on the application of the Minister appoint one or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as the court shall direct, if the court is satisfied that there are circumstances suggesting—

(a) that its affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose or in an unlawful manner or in a manner which is unfairly prejudicial to some part of its members, or that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial, or that it was formed for any fraudulent or unlawful purpose; or

(b) that persons connected with its formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or

(c) that its members have not been given all the information relating to its affairs which they might reasonably expect.

(2) (a) The power conferred by section 7 or this section shall be exercisable with respect to a body corporate notwithstanding that it is in course of being wound up.

(b) The reference in subsection (1) (a) to the members of a company shall have effect as if it included a reference to any person who is not a member but to whom shares in the company have been transferred or transmitted by operation of law.

9 Power of inspectors to extend investigation into affairs of related companies.

9.—If an inspector appointed under section 7 or 8 to investigate the affairs of a company thinks it necessary for the purposes of his investigation to investigate also the affairs of any other body corporate which is related to such company, he shall, with the approval of the court, have power so to do, and shall report on the affairs of the other body corporate so far as he thinks the results of his investigation thereof are relevant to the investigation of the affairs of the first-mentioned company.

10 Production of documents and evidence on investigation.

10.—(1) It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of section 9 to produce to the inspectors all books and documents of or relating to the company, or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.

(2) If the inspectors consider that a person other than an officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs, they may require that person to produce to them any books or documents in his custody or power relating to the company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation which he is reasonably able to give; and it shall be the duty of that person to comply with the requirement.

(3) If an inspector has reasonable grounds for believing that a director of the company or other body corporate whose affairs the inspector is investigating maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—

(a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement—

(i) particulars of which have not been disclosed in a note to the accounts of any company for any financial year as required by section 41; or

(ii) in respect of which any amount outstanding was not included in the aggregate amounts outstanding in respect of certain transactions, arrangements or agreements as required by section 43 to be disclosed in a note to the accounts of any company for any financial year; or

(iii) particulars of which were not included in any register of certain transactions, arrangements and agreements as required by section 44; or

(b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which on the part of that director constituted misconduct (whether fraudulent or not) towards that company or body corporate or its members;

the inspector may require the director to produce to him all documents in the director's possession, or under his control, relating to that bank account; and in this subsection “bank account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971, from the requirement of holding a licence under section 9 of that Act, and “director” includes any present or past director or any person connected, within the meaning of section 26, with such director, and any present or past shadow director.

(4) An inspector may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company or other body corporate and such person as is mentioned in subsection (2) in relation to its affairs and may—

(a) administer an oath accordingly,

(b) reduce the answers of such person to writing and require him to sign them.

(5) If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence, punish the offender in like manner as if he had been guilty of contempt of court.

(6) Without prejudice to its power under subsection (5), the court may, after a hearing under that subsection, make any order or direction it thinks fit, including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer particular questions put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector.

(7) In this section, any reference to officers or to agents shall include past, as well as present, officers or agents, as the case may be, and “agents”, in relation to a company or other body corporate, shall include the bankers and solicitors of the company or other body corporate and any persons employed by the company or other body corporate as auditors, whether those persons are or are not officers of the company or other body corporate.

11 Inspectors' reports.

11.—(1) Inspectors appointed under section 7 or 8 may, and if so directed by the court shall, make interim reports to the court and on the conclusion of the investigation, shall make a final report to the court.

(2) Notwithstanding anything contained in subsection (1), an inspector appointed under section 7 or 8 may at any time in the course of his investigation, without the necessity of making an interim report, inform the court of matters coming to his knowledge as a result of the investigation tending to show that an offence has been committed.

(3) Where inspectors were appointed under section 7 or 8, the court shall furnish a copy of every report of theirs to the Minister and the court may, if it thinks fit—

(a) forward a copy of any report made by the inspectors to the company's registered office,

(b) furnish a copy on request and payment of the prescribed fee to—

(i) any member of the company or other body corporate which is the subject of the report;

(ii) any person whose conduct is referred to in the report;

(iii) the auditors of that company or body corporate;

(iv) the applicants for the investigation;

(v) any other person (including an employee) whose financial interests appear to the court to be affected by the matters dealt with in the report whether as a creditor of the company or body corporate or otherwise;

(vi) the Central Bank, in any case in which the report of the inspectors relates, wholly or partly, to the affairs of the holder of a licence under section 9 of the Central Bank Act, 1971; and

(c) cause any such report to be printed and published.

(4) Where the court so thinks proper it may direct that a particular part of a report made by virtue of this section be omitted from a copy forwarded or furnished under subsection (3) (a) or (b), or from the report as printed and published under subsection (3) (c).

12 Proceedings on inspectors' report.

12.—(1) Having considered a report made under section 11, the court may make such order as it deems fit in relation to matters arising from that report including—

(a) an order of its own motion for the winding up of a body corporate, or

(b) an order for the purpose of remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the company, provided that, in making any such order, the court shall have regard to the interests of any other person who may be adversely affected by the order.

(2) If, in the case of any body corporate liable to be wound up under the Companies Acts, it appears to the Minister from—

(a) any report made under section 11 as a result of an application by the Minister under section 8, or

(b) any report made by inspectors appointed by the Minister under this Act, or

(c) any information or document obtained by the Minister under this Part,

that a petition should be presented for the winding up of the body, the Minister may, unless the body is already being wound up by the court, present a petition for it to be so wound up if the court thinks it just and equitable for it to be so wound up.

13 Expenses of investigation of company's affairs.

13.—(1) The expenses of and incidental to an investigation by an inspector appointed by the court under the foregoing provisions of this Act shall be defrayed in the first instance by the Minister for Justice but the court may direct that any person being—

(a) a body corporate dealt with in the report, or

(b) the applicant or applicants for the investigation,

shall be liable, to such extent as the court may direct, to repay the Minister for Justice, provided that no such liability on the part of the applicant or applicants shall exceed in the aggregate £100,000.

(2) Without prejudice to subsection (1), any person who is—

(a) convicted on indictment of an offence on a prosecution instituted as a result of an investigation,

(b) ordered to pay damages or restore any property in proceedings brought as a result of an investigation, or

(c) awarded damages or to whom property is restored in proceedings brought as a result of an investigation,

may, in the same proceedings, be ordered to repay all or part of the expenses referred to in subsection (1) to the Minister for Justice or to any person on whom liability has been imposed by the court under that subsection, provided that, in the case of a person to whom paragraph (c) relates, the court shall not order payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored, as the case may be.

(3) The report of an inspector may, if he thinks fit, and shall, if the court so directs, include a recommendation as to the directions (if any) which he thinks appropriate, in the light of his investigation, to be given under subsection (1).

14 Appointment and powers of inspectors to investigate ownership of company.

14.—(1) The Minister may, subject to subsection (2), appoint one or more competent inspectors to investigate and report on the membership of any company and otherwise with respect to the company for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence the policy of the company.

(2) An appointment may be made by the Minister if he is of the opinion that there are circumstances suggesting that it is necessary—

(a) for the effective administration of the law relating to companies;

(b) for the effective discharge by the Minister of his functions under any enactment; or

(c) in the public interest.