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Companies Act 2014

Type Act

Publication 2014-12-23

Last updated 2026-07-15

State Partially repealed

Text Latest available text

Source Irish Statute Book

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This is the most recent text the official source publishes. It is not a snapshot of the law as it stood on the date of each change.

87 amending acts · 2026-07-15, NATIONAL TREASURY MANAGEMENT AGENCY (MISCELLANEOUS PROVISIONS) ACT 2026

Act to consolidate, with amendments, certain enactments relating to companies and to provide for related matters

Reform history JSON API

(9) A company to which an examiner has been appointed or an interested party may apply to the court for the determination of any question arising out of the performance or otherwise by the examiner of his or her functions.

533. Hearing regarding irregularities

533. (1) Where, arising out of the presentation to it of the report of the independent expert or otherwise, it appears to the court that there is evidence of a substantial disappearance of property of the company concerned that is not adequately accounted for, or of other serious irregularities in relation to the company’s affairs having occurred, the court shall, as soon as it is practicable, hold a hearing to consider that evidence.

(2) If, before the hearing referred to in subsection (1) is held, the court directs the examiner to do so, the examiner shall prepare a report setting out any matters which the examiner considers will assist the court in considering the evidence concerned on that hearing.

(3) The examiner shall supply a copy of a report prepared by him or her under subsection (2) to the company concerned on the same day as he or she causes the report to be delivered to the office of the court.

(4) The examiner shall also supply a copy of a report prepared by him or her under subsection (2) to each person who is mentioned in the report and any interested party on written application being made to him or her in that behalf.

(5) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied to a person referred to in subsection (4) or an interested party such parts of it as are specified in the direction of the court.

(6) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.

(7) If the company concerned is a company referred to in section 510(2), (3) or (4), the examiner shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under subsection (2) to the Central Bank, and subsections (5) and (6) shall not apply to such a copy.

(8) The following persons shall be entitled to appear and be heard at a hearing under this section:

(a) the examiner;

(b) if the court decided to hold a hearing under this section because of matters contained in the report of the independent expert, the independent expert;

(d) any interested party;

(e) any person who is referred to in the report of the independent expert or the report prepared under subsection (2);

(f) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank;

(g) irrespective of whether it constitutes any of the foregoing kinds of company — the F347[Authority].

(9) The court may, on a hearing under this section, make such order or orders as it deems fit (including, where appropriate, an order for the trial of any issue relating to the matter concerned).

(10) The court may, if it considers it appropriate to do so, direct that a certified copy of an order under subsection (9) shall be delivered to the Registrar by the examiner or such other person as it may specify.

534. Report by examiner

534. (1) An examiner shall—

(a) as soon as practicable after he or she is appointed, formulate proposals for a compromise or scheme of arrangement in relation to the company concerned,

(b) without prejudice to any other provision of this Act, perform such other functions as the court may direct the examiner to perform.

(2) Notwithstanding any provision of Part 4 relating to notice of general meetings (but subject to notice of not less than 3 days in any case) the examiner shall—

(a) convene and preside at such meetings of members and creditors as he or she thinks proper for the purpose of [F348section 540,]

F349[(aa) ensure that every member or creditor, or class of members or creditors, whose interests or claims will be impaired by the proposals is invited to attend a meeting convened in accordance with paragraph (a), and]

(b) in accordance with section 536, report on those proposals to the court, within 35 days after the date of his or her appointment or such longer period as the court may allow.

(3) F350[Where], on the application of the examiner, the court is satisfied that the examiner would be unable to report under subsection (2) to the court within the period of 70 days referred to in section 520(2) but that he or she would be able to report under that subsection to the court if that period were extended, the court may by order extend that period by not more than 30 days to enable him or her to do so.

F351[(3A) F352[…]]

(4) Where the examiner has submitted a report under this section to the court and, but for this subsection, the period mentioned in section 520(2) (and any extended period allowed under subsection (3)) F353[…] would expire, the court may, of its own motion or on the application of the examiner, extend the period concerned by such period as the court considers necessary to enable it to take a decision under [F354section 541, but the total duration of the period referred to in section 520(2), any extended period allowed under subsection (3), F353[…] and any further extended period allowed under this subsection, shall not exceed 12 months.].

(5) The examiner shall supply a copy of his or her report under this section—

(a) to the company concerned on the same day as he or she causes the report to be delivered to the office of the court, and

(b) to any interested party on written application being made to him or her in that behalf.

(6) The examiner shall, as soon as may be after it is prepared, supply a copy of his or her report under this section to—

(a) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank, and

(b) irrespective of whether it constitutes any of the foregoing kinds of company — the F355[Authority].

(7) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied under subsection (5)(b) to an interested party such parts of it as are specified in the direction of the court.

(8) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.

535. Procedure where examiner unable to secure agreement or formulate proposals for compromise or scheme of arrangement

535. (1) If the examiner is not able to—

(a) enter into an agreement with the interested parties and any other persons concerned in the matter, or

(b) formulate proposals for a compromise or scheme of arrangement in relation to the company concerned,

the examiner may apply to the court for the grant of directions in the matter.

(2) The court may, on such an application, give such directions or make such order as it deems fit, including, if it considers it just and equitable to do so, an order for the winding up of the company.

536. Content of examiner’s report

536. An examiner’s report under section 534 shall include:

(a) the proposals placed before the required meetings;

(b) any modification of those proposals adopted at any of those meetings;

(d) the recommendation of the committee of creditors, if any;

(e) a statement of the assets and liabilities (including contingent and prospective liabilities) of the company as at the date of his or her report;

(f) a list of the creditors of the company, the amount owing to each such creditor, the nature and value of any security held by any such creditor, and the priority accorded under sections 621 and 622 to any such creditor or any other statutory provision or rule of law;

(g) a list of the officers of the company;

(h) the examiner’s recommendations;

(i) such other matters as the examiner deems appropriate or the court directs.

537. Repudiation of certain contracts

537. (1) Where proposals for a compromise or scheme of arrangement are to be formulated in relation to a company, the company may, subject to the approval of the court, affirm or repudiate any contract under which some element of performance other than payment remains to be rendered both by the company and the other contracting party or parties.

(2) Any person who suffers loss or damage as a result of such repudiation shall stand as an unsecured creditor for the amount of such loss or damage.

(3) In order to facilitate the formulation, consideration or confirmation of a compromise or scheme of arrangement, the court may hold a hearing and make an order determining the amount of any such loss or damage mentioned in subsection (2) and the amount so determined shall be due by the company to the creditor as a judgment debt.

(4) Where the examiner is not a party to an application to the court for the purposes of subsection (1), the company shall serve notice of such application on the examiner and the examiner may appear and be heard on the hearing of any such application.

(5) Where the court approves the affirmation or repudiation of a contract under this section, it may, in giving such approval, make such orders as it thinks fit for the purposes of giving full effect to its approval, including orders as to notice to, or declaring the rights of, any party affected by such affirmation or repudiation.

538. Appointment of creditors’ committee

538. (1) An examiner may, and if so directed by the court shall, appoint a committee of creditors to assist the examiner in the performance of his or her functions.

(2) Save as otherwise directed by the court, a committee appointed under subsection (1) shall consist of not more than 5 members and shall include the holders of the 3 largest unsecured claims who are willing to serve.

(3) The examiner shall provide such a committee with a copy of any proposals for a compromise or scheme of arrangement and the committee may express an opinion on the proposals on its own behalf or on behalf of the creditors or classes of creditors represented on the committee.

(4) As soon as practicable after the appointment of a committee under subsection (1), the examiner shall meet with the committee to transact such business as may be necessary.

539. Proposals for compromise or scheme of arrangement

539. (1) Proposals for a compromise or scheme of arrangement under this Part in relation to a company shall—

(a) specify each class of members and creditors of the company,

F356[(aa) identify the company concerned,

(ab) identify the examiner,]

(b) specify any class of members and creditors whose interests or claims will not be impaired F357[by the proposals, including the reasons why it is proposed not to impair such interests or claims],

(c) specify any class of members and creditors whose interests or claims will be impaired F357[by the proposals, including the interests or claims impaired by such proposals],

(d) provide equal treatment for each claim or interest of a particular class unless the holder of a particular claim or interest agrees to less favourable treatment,

F356[(da) identify the terms of the proposals including, in particular –

(i) any proposed restructuring measures,

(ii) where applicable, the proposed duration of any proposed restructuring measures,

(iii) the arrangements with regard to informing and consulting employees or employees’ representatives,

(iv) where applicable, the overall consequences as regards employment such as dismissals, short-time working arrangements or similar, and

(v) any new financing anticipated as part of the restructuring measures and the reason why the new financing is necessary to implement the plan,]

(e) provide for the implementation of the proposals,

F356[(ea) provide a statement of reasons which explains why the proposals provide a reasonable prospect of facilitating the survival of the company and the whole or part of its undertaking as a going concern, and includes details of the necessary pre-conditions for the success of the proposals,]

(f) if the examiner considers it necessary or desirable to do so to facilitate the survival of the company, and the whole or any part of its undertaking, as a going concern, specify whatever changes should be made in relation to the management or direction of the company,

(g) if the examiner considers it necessary or desirable to do so to facilitate such survival, specify any changes he or she considers should be made in the constitution of the company, whether as regards the management or direction of the company or otherwise,

(h) include such other matters as the examiner deems appropriate.

F356[(1A) As a minimum, creditors of secured and unsecured claims shall be treated in separate classes for the purposes of the proposals under subsection (1).]

(2) A statement of the assets and liabilities (including contingent and prospective liabilities) of the company as at the F357[date of the proposals, including a value for the assets, a description of the economic situation of the company and the position of its employees, and a description of the causes and extent of the difficulties of the company,] shall be attached to each copy of the proposals to be submitted to meetings of members and creditors under section 540.

F357[(3) There shall also be attached to each such copy of the proposals, for each class of members and creditors, a description of –

(a) the respective values of interests or claims in each class,

(b) the interests or claims impaired by the proposals, and

(4) The court may direct that the proposals include whatever other provisions it deems fit.

(5) For the purposes of this section and sections 541 to 543, a creditor’s claim against a company is impaired if the creditor receives less in payment of his or her claim than the full amount due in respect of the claim at the date of presentation of the petition for the appointment of the examiner.

(6) For the purposes of this section and sections 541 to 543, the interest of a member of a company in the company is impaired if—

(a) the nominal value of his or her shareholding in the company is reduced, or

(b) where the member is entitled to a fixed dividend in respect of his or her shareholding in the company, the amount of that dividend is reduced, or

(c) the member is deprived of all or any part of the rights accruing to him or her by virtue of his or her shareholding in the company, or

(d) the percentage of his or her interest in the total issued share capital of the company is reduced, or

(e) the member is deprived of his or her shareholding in the company.

F356[(7) In this section, "restructuring measures" has the same meaning as given to "restructuring" in point (1) of Article 2(1) of the Preventive Restructuring Directive.]

540. Consideration by members and creditors of proposals

540. (1) This section applies to a meeting of members or creditors or any class of members or creditors summoned to consider proposals for a compromise or scheme of arrangement in relation to a company to which an examiner has been appointed.

(2) Save where expressly provided otherwise in this section, this section shall not authorise, at such a meeting, anything to be done in relation to such proposals by any member or creditor.

(3) At a meeting to which this section applies a modification of the proposals may be put to the meeting but may only be accepted with the consent of the examiner.

(4) F358[Subject to subsection (4A), proposals] shall be deemed to have been accepted by a meeting of creditors or of a class of creditors when a majority in number representing a majority in value of the claims represented at that meeting have voted, either in person or by proxy, in favour of the resolution for the proposals.

F359[(4A) Creditors or classes of creditors whose interests or claims will not be impaired by the proposals shall not have voting rights in the adoption of the proposals, and the majority calculated in accordance with subsection (4) shall not take into account the number and value of the claims of any such creditors.]

(5) Nothing in subsection (4) shall, in the case of a creditor who abstains from voting, or otherwise fails to cast a vote, in respect of the proposals, be read as permitting such an abstention or failure to be regarded as a casting by that person of a vote against the proposals.

(6) Where a State authority is a creditor of the company, such authority shall be entitled to accept proposals under this section notwithstanding—

(a) that any claim of such authority as a creditor would be impaired under the proposals, or

(b) any other enactment.

(7) In subsection (6) “State authority” means the State, a Minister of the Government, a local authority or the Revenue Commissioners.

(8) Section 192 shall apply to any resolution to which subsection (4) relates which is passed at any adjourned meeting.

(9) Subsection (1)(a)(iii) and (b), and subsections (2) to (7), of section 452 shall apply to meetings under this section with the modifications specified in subsection (10) and any other necessary modifications.

(10) The modifications mentioned in subsection (9) are—

(a) the reference in paragraph (a)(iii) of section 452(1) to the explanation required to be given under paragraph (a)(ii) of section 452(1) in relation to the company’s directors shall be read as a reference to the explanation required to be given under subsection (11) of this section in relation to those directors, and

(b) the reference in section 452(5) to a liquidator of the company shall be read as a reference to the examiner of the company.

(11) With every notice summoning a meeting to which this section applies which is sent to a creditor or member, there shall be sent also a statement explaining the effect of the compromise or scheme of arrangement and in particular stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interest of other persons.

(12) Without prejudice to subsections (1) to (11), in the case of a company referred to in section 510(3) or (4), the examiner shall also afford the Central Bank an opportunity to consider the proposals for a compromise or scheme of arrangement and, for this purpose, shall furnish to the Central Bank a statement containing the like information to that referred to in subsection (11).

541. Confirmation of proposals

541. (1) The report of the examiner under section 534 shall be set down for consideration by the court as soon as may be after receipt of the report by the court.

(2) The following persons may appear and be heard at a hearing under subsection (1):

(a) the company concerned;

(b) the examiner;

(d) the directors of the company;

(e) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank.

(3) At a hearing under subsection (1), the court may, as it thinks proper, subject to the provisions of this section and sections 542 and 543—

(a) confirm,

(b) confirm subject to modifications, or

the proposals for the compromise or arrangement concerned (referred to subsequently in this section as “proposals”).

F360[(3A) Where the court confirms proposals under subsection (3) (with or without modification), the conditions of such confirmation shall be clearly specified by the court and shall confirm at least the following:

(a) a majority in number of creditors whose interests or claims would be impaired by implementation of the proposals, representing a majority in value of the claims that would be impaired by implementation of the proposals, have accepted the proposals in accordance with section 540;

(b) the exercise of voting rights has been carried out in accordance with section 540;

(c) creditors with sufficient commonality of interest in the same class have been treated equally, and in a manner proportionate to their claim;

(d) notice of the proposals has been given to all members and creditors whose interests or claims will be impaired by the proposals in accordance with subsection 540(11);

(e) where there are dissenting creditors, that the proposals satisfy the best-interest-of-creditors test;

(f) where applicable, that any new financing is necessary to implement the proposals and does not unfairly prejudice the interests of creditors.

(3B) Where any proposals have not been accepted in accordance with section 540, the court may, upon the application of the examiner or with the examiner’s agreement, confirm the proposals under subsection (3) (with or without modification) if –

(a) the proposals have been accepted by –

(i) a majority of the voting classes of creditors whose interests or claims would be impaired by the proposals, provided that at least one of those classes is a class of secured creditors, or is senior to the class of ordinary unsecured creditors, or

(ii) where the classes of creditors specified in subparagraph (i) have not accepted the proposals, at least one voting class of creditors whose interests or claims would be impaired by the proposals other than a class of creditors which, upon a valuation of the company as a going concern, would not receive any payment or keep any interest, or which could be reasonably presumed not to receive any payment or keep any interest, if the normal ranking of liquidation priorities under sections 621 and 622 were applied,

and

(b) the court is satisfied that –

(i) the conditions specified in paragraphs (b) to (f) of subsection (3A) have been met, and

(ii) no class of creditors whose interests or claims will be impaired by the proposals can, under the scheme of arrangement, receive or keep more than the full amount of its interests or claims.]

(4) The court shall not confirm any proposals unless—

(a) at least one class of creditors whose interests or claims would be impaired by implementation of the proposals has accepted the proposals, and

F361[(b) the court is satisfied that –

(i) the conditions specified in subsection (3A) or (3B) have been met,

(ii) the proposals are fair and equitable in relation to any class of members or creditors that has not accepted the proposals and whose interests or claims would be impaired by implementation, and

(iii) the proposals are not unfairly prejudicial to the interests of any interested party,

and in any case shall not confirm any proposals if the sole or primary purpose of them is the avoidance of payment of tax due.]

F360[(4A) The court shall refuse to confirm any proposals where the proposals would not have a reasonable prospect of facilitating the survival of the company, or the whole or part of its undertaking as a going concern.]

F361[(5) Without prejudice to subsections (3B), (4) and (4A), the court shall not confirm any proposals in respect of a company to which an examiner has been appointed under section 517 if –

(a) the proposals would have the effect of impairing the interests of the creditors of the company in such a manner as to unfairly favour the interests of the creditors or members of any company to which it is related, being a company to which that examiner has been appointed under section 509 or, as the case may be, section 517, or

(b) the court is satisfied that the proposals do not satisfy the best-interests-of-creditors test where such proposals are challenged by one or more creditors on the basis that they do not satisfy the best-interests-of-creditors test.]

F361[(6) Where the court confirms proposals (with or without modification), the proposals shall be binding on –

(a) all the members or class or classes of members, as the case may be, impaired by the proposals, unless the member or class or classes of members, as the case may be, was not given notice of a meeting they would have been entitled to attend under section 534, and

(b) the company.]

F361[(7) Where the court confirms the proposals (with or without modification), the proposals shall, notwithstanding any other enactment, be binding on –

(a) all the creditors or the class or classes of creditors, as the case may be, impaired by the proposals in respect of any claim or claims against the company, unless the creditor or class or classes of creditors, as the case may be, was not given notice of a meeting they would have been entitled to attend under section 534, and

(b) any person other than the company who, under any enactment, rule of law or otherwise, is liable for all or any part of the debts of the company.]

542. Supplemental provisions in relation to section 541

542. (1) Any amendments of the constitution of the company concerned which are specified in the relevant proposals shall, after confirmation of the proposals by the court under section 541 and notwithstanding any other provisions of this Act, take effect from a date fixed by the court.

(2) Where the court confirms proposals under section 541 it may make such orders for the implementation of its decision as it deems fit.

(3) A compromise or scheme of arrangement, proposals for which have been confirmed under section 541, shall come into effect from a date fixed by the court, which date (unless the court deems it appropriate to fix a later one) shall be a date falling no later than 21 days after the date of the proposals’ confirmation.

(4) On the confirmation of proposals, a certified copy of any order made by the court under section 541 shall be delivered by the examiner, or by such person as the court may direct, to the Registrar.

(5) Where—

(a) the court refuses to confirm proposals under section 541, or

(b) the report of an examiner under section 534 concludes that, following the required meetings of creditors of a company under this Part, it has not been possible to reach agreement on a compromise or scheme of arrangement,

the court may, if it considers it just and equitable to do so, make an order for the winding up of the company, or any other order as it deems fit.

(6) Notwithstanding—

(a) subsection (4), or any other provision of this Part, nothing in this Part shall prevent the examiner from including in a report under section 534 proposals which will not involve the impairment of the interests of members or creditors of the company nor the court from confirming any such proposals, or

(b) any foregoing provision of this Part or any provision of Part 3, nothing in this Part or Part 3 shall prevent the examiner from including in a report under section 534 proposals which provide for a reduction of the company’s company capital nor, subject to subsection (7), the court from confirming any such proposals.

(7) If the extent of the reduction of the company’s company capital provided for in the proposals as referred to in subsection (6)(b) would, in the opinion of the court, and having regard to—

(a) the scale and nature of the business that the company carries on, and

(b) the likely liabilities it will incur on an on-going basis after the period of protection has expired,

result in the company’s having an amount of company capital that is manifestly inadequate, the court shall not confirm the proposals or, where appropriate, shall confirm the proposals subject to a modification that a lower level of reduction, as determined by the court, of the company’s company capital shall have effect under the compromise or scheme of arrangement.

(8) References in section 541 or any other provision of this Part to acceptance by a class of creditors or members of proposals are references to the proposals’ acceptance at the relevant meeting held under section 540, that is to say acceptance signified by a resolution passed, at that meeting, by the requisite majority referred to in (in the case of creditors) section 540(4) or (in the case of members) section 191(1).

543. Objection to confirmation by court of proposals

543. (1) At a hearing under section 541 in relation to proposals referred to in that section, a member or creditor whose interest or claim would be impaired by the proposals may object in particular to their confirmation by the court on any of the following grounds—

(a) that there was some material irregularity at or in relation to a meeting to which section 540 applies;

(b) that acceptance of the proposals by the meeting was obtained by improper means;

(d) that the proposals unfairly prejudice the interests of the F362[objector;]

F363[(e) that the proposals fail to satisfy the best-interest-of-creditors test;

(f) that the proposals breach the conditions specified in section 541(3B)(a)(ii).]

F363[(1A) Where a member or creditor objects to the confirmation by the court of the proposals on the grounds set out in subsection (1)(e) or (1)(f), the court shall take a decision on the valuation of the company’s business.]

F363[(1B) For the purpose of taking a decision on a valuation in accordance with subsection (1A), the court may have regard to –

(a) the report of the independent expert prepared in accordance with section 511,

(b) the examiner’s report prepared in accordance with section 534, and

F363[(1C) For the purpose of subsection (1B)(c), any party entitled to be heard at a hearing under section 541 may place expert evidence before the court for its consideration.]

(2) Any person who voted to accept the proposals referred to in section 541 may not object to their confirmation by the court except on the grounds—

(a) that such acceptance was obtained by improper means; or

(b) that after voting to accept the proposals the person became aware that the proposals were put forward for an improper purpose.

(3) Where the court upholds an objection under this section, the court may make such order as it deems fit, including an order that the decision of any meeting be set aside and an order that any meeting be reconvened.

544. Provisions with respect to leases

544. (1) Subject to subsection (3), proposals for a compromise or scheme of arrangement shall not contain, nor shall any modification by the court under section 541 of such proposals result in their containing, a provision providing for either or both—

(a) a reduction in the amount of any rent or other periodical payment reserved under a lease of land that falls to be paid after the date from which the compromise or scheme of arrangement would come into effect under section 542(3) or the complete extinguishment of the right of the lessor to any such payments;

(b) as respects a failure—

(i) to pay an amount of rent or make any periodical payment reserved under a lease of land; or

(ii) to comply with any other covenant or obligation of such a lease, that falls to be paid or complied with after the date referred to in paragraph (a), a requirement that the lessor under such a lease shall not exercise, or shall only exercise in specified circumstances, any right, whether under the lease or otherwise, to—

(I) recover possession of the land concerned;

(II) effect a forfeiture of the lease or otherwise enter on the land;

(III) recover the amount of such rent or other payment; or

(IV) claim damages or other relief in respect of the failure to comply with such a covenant or obligation.

(2) Subject to subsection (3), proposals for a compromise or scheme of arrangement in relation to a company shall not be held by the court to satisfy the condition specified in section 541(4)(b)(ii) if the proposals contain a provision relating to a lease of, or any hiring agreement in relation to, property other than land and, in the opinion of the court—

(a) the value of that property is substantial; and

(b) that provision is of like effect to a provision referred to in subsection (1)(a) or (b).

(3) Subsection (1) or (2) shall not apply if the lessor or owner of the property concerned has consented in writing to the inclusion of the provision referred to in subsection (1) or (2) in the proposals for the compromise or scheme of arrangement.

(4) In deciding, for the purposes of subsection (2), whether the value of the property concerned is substantial, the matters to which the court shall have regard shall include the length of the unexpired term of the lease or hiring agreement concerned.

CHAPTER 4 Liability of third parties for debts of a company in examination

545. What this Chapter contains

545. This Chapter contains provisions—

(a) specifying the effect on the liability of a person (under a guarantee or otherwise) to another person in respect of a debt of a company in examination under this Part where a compromise or scheme of arrangement takes effect in relation to the latter;

(b) restricting the enforcement of that liability by that other person unless a certain procedure is employed; and

(c) providing for other matters relating to the foregoing (including a saver for cases falling within section 520(4)(f) or where, by operation of any rule of law, a discharge or release of the first-mentioned person’s liability occurs).

546. Definitions (Chapter 4)

546. In this Chapter—

“creditor” shall be read in accordance with section 547;

“debt” shall be read in accordance with section 547;

“liability” shall be read in accordance with section 547;

“third person” shall be read in accordance with section 547.

547. Circumstances in relation to which subsequent provisions of this Chapter have effect

547. Subject to section 548(2), the subsequent sections of this Chapter have effect in relation to the following liability (the “liability”), namely the liability—

(a) of any person (the “third person”) whether under a guarantee or otherwise;

(b) in respect of a debt (the “debt”) of a company to which an examiner has been appointed that is owed to another (the “creditor”).

548. General rule: liability of third person not affected by compromise or scheme of arrangement

548. (1) Notwithstanding section 541(7), the liability shall not be affected by the fact that the debt is the subject of a compromise or scheme of arrangement that has taken effect under section 542(3), but this is subject to subsections (2) and (3).

(2) The third person and the creditor may provide in an agreement between them that the liability shall be so affected.

(3) Neither subsection (1) nor any of the subsequent provisions of this Chapter shall apply if the third person is a company to which an examiner has been appointed.

549. Enforcement by creditor of liability: restrictions in that regard unless certain procedure employed to the benefit of third person

549. (1) If the creditor proposes to enforce, by legal proceedings or otherwise, the obligation of the third person in respect of the liability, then he or she shall—

(a) if 14 days or more notice is given of such meeting, at least 14 days before the day on which the meeting concerned under section 540 to consider the proposals is held, or

(b) if less than 14 days’ notice is given of such meeting, not more than 48 hours after he or she has received notice of such meeting,

serve a notice on the third person containing the following offer.

(2) That offer is an offer in writing by the creditor to transfer to the third person (which the creditor is, by virtue of this section, empowered to do) any rights, so far as they relate to the debt, he or she may have under section 540 to vote in respect of proposals for a compromise or scheme of arrangement in relation to the company.

(3) If that offer is accepted by the third person, that offer shall, if the third person furnishes to the examiner at the meeting concerned, a copy of the offer and informs the examiner of his or her having accepted it, operate, without the necessity for any assignment or the execution of any other instrument, to entitle the third person to exercise the rights referred to in subsection (2).

(4) However neither that transfer nor any vote cast by the third person on foot of the transfer shall operate to prejudice the right of the creditor to object to the proposals under section 543.

(5) If the creditor fails to make the offer referred to in subsection (1) in accordance with that subsection, then, subject to subsection (6), the creditor may not enforce by legal proceedings or otherwise the obligation of the third person in respect of the liability.

(6) Subsection (5) shall not apply if—

(a) a compromise or scheme of arrangement in relation to the company is not entered into or does not take effect under section 542(3); and

(b) in either of those cases, the creditor has obtained the leave of the court to enforce the obligation of the third person in respect of the liability.

550. Payment by third person to creditor post period of protection — statutory subrogation in favour of third person in certain circumstances

550. (1) This section applies where the third person makes a payment to the creditor in respect of the liability after the period of protection in relation to the company concerned has expired.

(2) Where this section applies any amount that would, but for the foregoing payment, be payable to the creditor in respect of the debt under a compromise or scheme of arrangement that has taken effect under section 542(3) in relation to the company shall become and be payable to the third person upon and subject to the same terms and conditions as the compromise or scheme of arrangement provided that it was to be payable to the creditor.

551. Saving for cases falling within section 520(4)(f) and cases where third person discharged or released from liability

551. Nothing in this Chapter shall affect the operation of—

(a) section 520(4)(f); or

(b) any rule of law whereby any act done by the creditor results in the third person being discharged or released from his or her obligation in respect of the liability.

CHAPTER 5 Conclusion of examinership

552. Cessation of protection of company and termination of appointment of examiner

552. (1) Subject to the provisions of that section, the protection granted by virtue of section 520 to a company shall cease—

(a) on the coming into effect of a compromise or scheme of arrangement under this Part in relation to the company; or

(b) on such earlier date as the court may direct.

F364[(1A) Where the court is making an order in accordance with subsection (1)(b), it may take into account:

(a) that the protection granted by virtue of section 520 no longer fulfils the objective of supporting the negotiations on a scheme of arrangement;

(b) where the company or the examiner has requested that the protection granted by virtue of section 520 be ceased;

(c) one or more creditors or one or more classes of creditors are, or would be, unfairly prejudiced by the continuation of the protection granted by virtue of section 520;

(d) that the continuation of the protection granted by virtue of section 520 would likely give rise to the insolvency of a creditor of the company.]

(2) Where a company ceases to be under the protection of the court, the appointment of the examiner shall terminate on the date of such cessation.

553. Revocation

553. (1) The company or any interested party may, within 180 days after the date of confirmation by the court, under section 541, of the proposals in relation to the company, apply to the court for revocation of that confirmation on the grounds that it was procured by fraud.

(2) On such an application, the court, if satisfied that that confirmation was procured by fraud, may revoke the confirmation on such terms and conditions, particularly with regard to the protection of the rights of parties acquiring interests or property in good faith and for value in reliance on that confirmation, as it deems fit.

(3) As soon as practicable after the revocation under this section of such a confirmation, a certified copy of the order made by the court shall be delivered to—

(a) the Registrar;

(b) if the company to which the order relates is a company referred to in section 510(2), (3) or (4) — the Central Bank;

by such person as the court may direct.

554. Costs and remuneration of examiners

554. (1) The court may from time to time make such orders as it thinks proper for payment of the remuneration and costs of, and reasonable expenses properly incurred by, an examiner.

(2) Unless the court otherwise orders, the remuneration, costs and expenses of an examiner shall be paid and the examiner shall be entitled to be indemnified in respect thereof out of the revenue of the business of the company to which he or she has been appointed, or the proceeds of realisation of the assets (including investments).

(3) The remuneration, costs and expenses of an examiner which have been sanctioned by order of the court (other than the expenses referred to in subsection (4)) shall be paid in full and shall be paid before any other claim, secured or unsecured, under any compromise or scheme of arrangement or in any receivership or winding up of the company to which he or she has been appointed.

(4) Liabilities incurred by the company to which an examiner has been appointed that, by virtue of section 529, are treated as expenses properly incurred by the examiner shall be paid in full and shall be paid before any other claim (including a claim secured by a floating charge), but after any claim secured by a mortgage, charge, lien or other encumbrance of a fixed nature or a pledge, under any compromise or scheme of arrangement or in any receivership or winding up of the company.

(5) In subsections (3) and (4), references to a claim shall be deemed to include references to any payment in a winding up of the company in respect of the costs, charges and expenses of that winding up (including the remuneration of any liquidator).

(6) Subject to subsection (7), the functions of an examiner may be performed by him or her with the assistance of persons appointed or employed by him or her for that purpose.

(7) An examiner shall, in so far as is reasonably possible, make use of the services of the staff and facilities of the company to which the examiner has been appointed to assist the examiner in the performance of his or her functions.

(8) In considering any matter relating to the costs, expenses and remuneration of an examiner the court shall have particular regard to subsection (7).

555. Publicity

555. (1) An examiner or, where appropriate, such other person as the court may direct, shall, within 14 days after the date of delivery to the Registrar of every order made under section 533, 541 or 553, cause to be published in the CRO Gazette notice of such delivery.

(2) Where a person fails to comply with this section, that person and, where that person is a company, the company and any officer of it who is in default, shall be guilty of a category 4 offence.

556. Hearing of proceedings otherwise than in public

556. The whole or part of any proceedings under this Part may be heard otherwise than in public if the court, in the interests of justice, considers that the interests of the company concerned or of its creditors as a whole so require.

557. Power of court to order the return of assets which have been improperly transferred

557. (1) Where, on the application of an examiner of a company that is under the protection of the court it can be shown to the satisfaction of the court that—

(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect; and

(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,

the court may, if it deems it just and equitable to do so, make the following order.

(2) That order of the court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the examiner on such terms or conditions as the court sees fit.

(3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 604 applies.

(4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.

558. Reporting to Director of Corporate Enforcement of misconduct by examiners

558. (1) Where a disciplinary committee or tribunal (however called) of a prescribed professional body—

(a) finds that a member of that body who is conducting or has conducted an examinership has not maintained appropriate records in relation to that activity; or

(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during the course of conducting an examinership,

the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F366[Authority] forthwith.

(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.

PART 10A

RESCUE PROCESS FOR SMALL AND MICRO COMPANIES

CHAPTER 1

Interpretation]

558A. F368[Interpretation (Part 10A)

558A. (1) In this Part—

"director" includes a shadow director;

"eligible company" means a company which qualifies as—

(a) a small company in accordance with section 280A, or

(b) a micro company in accordance with section 280D;

"excludable debt" has the meaning assigned to it by section 558L(4);

"interested party", in relation to an eligible company, means—

(a) a creditor of the eligible company, or

(b) a member of the eligible company;

"process adviser" means—

(a) except as specified in paragraphs (b) and (c), a process adviser appointed by the directors of an eligible company by resolution mentioned in section 558E or 558ZX,

(b) in Chapter 2 of this Part, a process adviser acting under that Chapter, and

(i) except where the context otherwise requires, a process adviser acting under Chapter 2 of this Part, or

(ii) a process adviser appointed by the directors of an eligible company by resolution mentioned in section 558E or 558ZX;

"relevant court", in relation to an eligible company, means, subject to section 558ZAF, the court determined by the process adviser under section 558H;

"rescue period", in relation to an eligible company, means the period—

(a) beginning with the passing of the resolution mentioned in section 558E(2) appointing a process adviser in respect of the eligible company, and

(b) ending on—

(i) the date on which the appointment of the process adviser is terminated under section 558ZK, or

F369[(ii) where a person appointed as the process adviser of an eligible company ceases to act under paragraph (a), (b), (c) or (d) of section 558ZX(1) and the directors of the eligible company do not appoint another person to be a process adviser under that subsection, the date on which a notice delivered to the Registrar under paragraph (a) of section 558ZX(1A) is received by the Registrar;]

"rescue plan" has the meaning assigned to it by section 558B.

(2) For the purposes of sections 558Q, 558Y, 558Z and 558ZD, a member’s claim against an eligible company is impaired if—

(a) the nominal value of his or her shareholding in the eligible company is reduced,

(b) where the member is entitled to a fixed dividend in respect of his or her shareholding in the eligible company, the amount of that dividend is reduced,

(c) the member is deprived of all or any part of the rights accruing to him or her by virtue of his or her shareholding in the eligible company,

(d) the percentage of his or her interest in the total issued share capital of the eligible company is reduced, or

(e) the member is deprived of his or her shareholding in the eligible company.

(3) For the purposes of sections 558Q, 558Y, 558Z and 558ZD, a creditor’s claim against an eligible company is impaired if the creditor receives less in payment of his or her claim than the full amount due in respect of the claim at the date of passing of the resolution for the appointment of the process adviser.]

F371[CHAPTER 2

Introductory

558B. Requirements where eligible company wishes to avail of rescue plan

558B. (1) This section applies where—

(a) the conditions specified in subsection (2) are met in relation to an eligible company, and

(b) the directors of the eligible company F370[wish it to avail] of a rescue plan.

(2) The conditions referred to in subsection (1) are—

(a) the eligible company is, or is likely to be, unable to pay its debts,

(b) no resolution subsists for the winding up of the eligible company,

(d) the directors of the eligible company have not passed a resolution for the appointment of a process adviser in respect of the eligible company during the period of 5 years ending on the date on which it is proposed that F370[such a resolution be passed by the directors of] the eligible company,

(e) no examiner has been appointed to the eligible company during the period of 5 years referred to in paragraph (d).

(3) For the purposes of subsection (2)(a), an eligible company is unable to pay its debts if—

(a) it is unable to pay its debts as they fall due,

(b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities, or

(4) A director of the eligible company shall—

(a) make a full inquiry into the affairs of the eligible company,

(b) prepare in the prescribed form a statement specifying the information set out in subsection (5),

(d) submit the statement and the statutory declaration to a process adviser.

(5) The information referred to in subsection (4)(b) is—

(a) particulars of the eligible company’s assets, debts and liabilities,

(b) the names and addresses of the eligible company’s creditors,

(c) particulars of each security given by the eligible company, including the name of the secured creditor and the date on which it was given, and

(d) such further or other information as may be prescribed.

(6) Where any false or misleading statement has been included in the statement of affairs referred to in subsection (4), any director of the eligible company who is in default shall be guilty of a category 2 offence.

(7) In any proceedings against a person in respect of an offence under subsection (6), it shall be a defence to prove that, having exercised all reasonable skill and care, the defendant had reasonable grounds for believing and did, up to the time of the issue of the document concerned, believe that the statement concerned was true.

(8) In this section, "rescue plan" means a plan for an eligible company under this Part that is intended to secure the survival of the company, and the whole or any part of its undertaking, as a going concern.]

558C. F372[Process adviser to determine whether eligible company has reasonable prospect of survival

558C. (1) This section applies where a director of an eligible company submits a statement and a statutory declaration to a process adviser under section 558B(4).

(2) The process adviser shall determine whether there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.

(3) In making a determination under subsection (2), the process adviser shall have regard to—

(a) the statement, and

(b) such of the matters specified in subsection (4) as appear to the process adviser to be relevant in the circumstances.

(4) The matters referred to in subsection (3) are—

(a) the nature of, and prospects for, the business of the eligible company,

(b) the availability of funding for, and investment in, the eligible company in the future, including expressions of interest by external funders,

(d) whether projections and business plans for the eligible company are based on objective and independent evidence,

(e) whether the eligible company can generate a sufficient return to remunerate investment and repay funding,

(f) the wider economic situation,

(g) the circumstances of the market in which the eligible company is operating, including the likely future prospects of the market,

F373[(h) the expertise, brand, social and cultural importance and historic success of the eligible company,]

(i) where the eligible company is part of a group of companies, the place of the company in the structure of the group and its prospects in that context,

(j) whether a secured creditor has expressed an interest in (or attempted to initiate) a trading receivership,

(k) such other matters as the process adviser considers relevant in the circumstances.

(5) The process adviser shall—

(a) hold a meeting with the directors of the eligible company for the purpose of informing the directors of the determination and the reasons for it, and

(b) give the directors of the eligible company confirmation in writing of the determination and the reasons for it.]

558D. F374[Process adviser to prepare report

558D. (1) This section applies where the process adviser determines under section 558C that there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.

(2) The process adviser shall—

(a) prepare a report relating to the eligible company specifying the matters set out in subsection (3), and

(b) submit a copy of the report to the directors of the eligible company.

(3) The matters referred to in subsection (2)(a) are—

(a) that the company is an eligible company which meets the conditions in section 558B(2),

(b) the names and addresses of the officers of the eligible company,

(d) a statement as to the affairs of the eligible company, showing—

(i) in so far as it is reasonably practicable to do so, particulars of the eligible company’s assets and liabilities (including contingent and prospective liabilities) as at the latest practicable date,

(ii) the names and addresses of its creditors,

(iii) the securities held by each of them, and

(iv) the dates when the securities were given to each of them,

(e) the process adviser’s opinion as to whether any deficiency between the assets and liabilities of the eligible company has been satisfactorily accounted for or, if not, as to whether there is evidence of a substantial dissipation of property that is not adequately accounted for,

(f) a statement of the conditions or other matters which the process adviser considers are essential to ensure that the eligible company, and the whole or any part of its undertaking, would have a reasonable prospect of survival as a going concern, whether as regards the internal management and controls of the company or otherwise,

(g) the process adviser’s opinion as to whether the preparation, approval and taking effect of a rescue plan would offer a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern,

(h) the process adviser’s opinion as to whether an attempt to continue the whole or any part of the undertaking would be likely to be more advantageous to the members as a whole and the creditors as a whole than a winding up of the eligible company,

(i) recommendations as to the course the process adviser thinks should be taken and the matters the process adviser thinks should be taken into account in relation to the eligible company including, if warranted, a draft of a rescue plan,

(j) details of the extent of the funding required to enable the eligible company to continue trading during the rescue period and the sources of that funding,

(k) the process adviser’s recommendations as to which liabilities incurred before the appointment of a process adviser should be paid,

(l) information about how this Part operates and its general effect, including information about the process of appointing a process adviser and potential costs and fees,

(m) the process adviser’s recommendation as to which court should be the relevant court for the purposes of any proceedings under this Part relating to the eligible company,

(n) such other matters as the process adviser thinks relevant, and

(o) such other matters as may be prescribed.]

F375[CHAPTER 3

Appointment of process adviser

558E. Resolution to appoint process adviser

558E. (1) This section applies where a process adviser submits a report under section 558D(2)(b) to the directors of an eligible company.

(2) The directors of the eligible company may call a meeting of its board of directors at which a resolution to appoint a process adviser in respect of the eligible company shall be proposed and considered.

(3) Any meeting called under subsection (2) shall be held before the expiry of the period of 7 days beginning on the date on which the directors of the eligible company receive the process adviser’s report.]

558F. F376[Process adviser’s duty to keep determination under section 558C under review

558F. (1) This section applies where a process adviser is appointed in respect of an eligible company and is without prejudice to section 558S(2).

(2) The process adviser shall keep under review during the rescue period the determination made in relation to the eligible company under section 558C.

(3) If, at any time during the rescue period, the process adviser determines, having regard to the matters specified in subsection (4), that there is no longer a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, the process adviser shall immediately—

(a) give notice of the determination to the directors of the eligible company, and

(b) resign as process adviser in respect of the eligible company in accordance with section 558ZW.

(4) The matters referred to in subsection (3) are—

(a) any material change in the circumstances of the eligible company,

(b) the discovery of any material inaccuracy in the information provided to the process adviser that was relied upon for the determination under section 558C, or

558G. F377[Duties of directors of eligible company in relation to process adviser

558G.(1) This section applies where a process adviser is appointed in respect of an eligible company.

(2) Where the process adviser gives notice to the directors of the eligible company under section 558F, the directors shall, as soon as reasonably practicable after the notice is given, take such steps as they consider appropriate for the purpose of protecting the interests of employees of the company.

(3) During the rescue period, the directors of the eligible company shall—

(a) co-operate with the process adviser for any purpose relating to the performance by the process adviser of his or her functions under this Part, and

(b) without prejudice to any other requirement imposed on them by or under this Part, disclose to the process adviser any information relating to the performance of those functions that is available to them.]

558H. F378[Process adviser’s duty to determine relevant court

558H. (1) This section applies where a process adviser is appointed in respect of an eligible company.

(2) The process adviser shall, having regard to the matters mentioned in subsection (3), determine whether any proceedings under this Part relating to the eligible company shall be brought in the Circuit Court or the High Court.

(3) The matters referred to in subsection (2) are—

(a) the need to minimise costs by refraining from bringing proceedings in the High Court unless there are good reasons for doing so,

(b) the need for an efficient and expeditious conclusion to any proceedings brought under this Part, and

(4) Before making a determination under subsection (2), the process adviser shall consult the directors of the eligible company.

(5) The jurisdiction of the Circuit Court under this Part in relation to an eligible company shall be exercisable by a judge of the Circuit Court—

(a) for the circuit in which the registered office of the eligible company is situated at the time of the appointment of the process adviser or in which it has, at that time, its principal place of business, or

(b) if, at that time, there is no registered office of the eligible company and its principal place of business is outside the State, for the Dublin Circuit.]

558I. F379[Process adviser’s duty to seek provision of email addresses

558I. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).

(2) As soon as practicable after the appointment, the process adviser shall give to each person specified in F380[subsection (4)] a notice in writing—

(a) requesting that the person provide the process adviser with an email address that the process adviser may use for the purpose of giving the person any notices and other documents that the process adviser is required or authorised to give to the person under this Part, and

(b) informing each such person that, if no email address is provided, the process adviser shall give the person those notices and other documents by sending them by post in accordance with section 558ZAI.

(3) Notice under subsection (2) shall be given—

(a) where the process adviser is aware of the person’s email address, by electronic means to that email address, or

(b) in any other case, in accordance with section 558ZAI(4).

(4) The persons are—

(a) employees of the eligible company,

(b) members of the eligible company,

(d) the Revenue Commissioners, and

(e) such other persons as may be prescribed.

(5) The process adviser shall keep records and supporting evidence of the means by which notice is given under this section.]

558J. F381[Process adviser to give notice of appointment

558J. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).

(2) The process adviser shall, as soon as practicable and in any event no later than 2 working days after the passing of the resolution—

(a) deliver to the Registrar a notice of his or her appointment in the prescribed form, and

(b) file with the office of the relevant court a copy of—

(i) the resolution,

(ii) the process adviser’s determination made under section 558C and his or her report prepared under section 558D, and

(iii) where a process adviser has determined under section 558H(2) that proceedings under this Part in relation to an eligible company should be brought in the High Court, the reasons for the determination,

and

(c) make arrangements for a notice of his or her appointment and the date of that appointment to be published in Iris Oifigiúil.

(3) The directors of the eligible company shall ensure that, within 48 hours after the passing of the resolution, a notice in the prescribed form stating that the process adviser has been appointed and the date of the appointment is placed on any website of the company in a prominent and easily accessible place.

(4) The directors of the eligible company shall ensure that the notice referred to in subsection (3) remains on the website during the rescue period.

(5) The process adviser shall keep records and supporting evidence of the means by which he or she has complied with the requirement imposed by subsection (2)(c).

(6) A person who fails to comply with a requirement imposed by this section shall be guilty of a category 3 offence.]

558K. F382[Process adviser to give notice to employees, creditors, etc.

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