Companies Act 2014

shall be read to mean that, but for the effecting of those amendments or the making of such similar provision by any of those sections, a direction given by the Director, before the passing of the Companies (Amendment) Act 2009, under section 19(3) of the Act of 1990, was limited in any way as to its effect or extent of operation or that books or documents produced on foot of it to the F584[Director or Authority were not] lawfully produced to him.

782. Restriction on power of Director to require third party to produce certain books or documents

782. (1) F585[The Authority shall] not exercise the power under section 780(1)(c) to require a person (in this section and section 783 referred to as the “third party”) to produce books or documents that may relate to any books or documents of a company unless—

• (a) the F585[Authority] is of the opinion that there are reasonable grounds for believing that the books or documents required to be produced and the books or documents of the company are related to one another; and

• (b) subject to subsection (4), the F585[Authority] has first taken the steps set out in subsection (2).

• (2) The steps referred to in subsection (1)(b) are the following:

• (a) the F585[The Authority shall] shall notify the third party stating—

• (i) that the F585[Authority] proposes to require the third party to produce books or documents that may relate to books or documents of the company;

• (ii) the grounds for the F585[Authority’s] opinion referred to in subsection (1)(a); and

• (iii) that the third party may make submissions to the F585[Authority within 21 days after the date of the notification as to why the third party believes the opinion of the Authority] is erroneous; and

• (b) the F585[Authority] shall have regard to those submissions before finally deciding whether to require the books or documents in question.

• (3) In subsection (1)(a), the grounds for the opinion of the F585[Authority] may include—

• (a) grounds related to the relationship between the company and the person required to produce the books or documents;

• (b) a common origin of the books or documents; or

• (c) other similar considerations.

• (4) F585[The Authority is not] required to take the steps set out in subsection (2) if—

• (a) the F585[Authority] considers that compliance with those steps could result in the concealment, falsification, destruction or disposal of the books or documents concerned; or

• (b) the books or documents concerned are merely the originals of any books or documents, copies of which have previously been produced to the F585[Authority] in compliance with an earlier requirement made in exercise of the power under section 780(1)(c).

• (5) The third party shall not be obliged to comply with a requirement to produce documents in relation to a particular book or document if the third party would be entitled, by virtue of any law or enactment, to refuse to produce the book or document in any proceedings on the ground of any privilege (whether the privilege to which section 795 applies or not).

783. Court may order third party to comply with requirement to produce books or documents

783. (1) This section applies if a third party—

• (a) has failed to—

• (i) comply with a requirement of the F586[Authority] under section 780(1)(c) requiring the third party to produce books or documents, or

• (ii) provide an explanation, make a statement or give assistance as required by section 784,

and

• (b) has, in either case, failed to remedy the default within 14 days after the date of service by the F586[Authority] on the third party of a notice requiring the third party to remedy the default.

• (2) In any case to which this section applies, the court, on the application of the F586[Authority], and having given the third party an opportunity to be heard, may order the third party to remedy the default within such time as the court specifies.

• (3) In making an order under subsection (2), the court may order the third party to pay all costs of and incidental to the application.

• (4) Nothing in this section shall be taken to prejudice the operation of section 785(1) and (2).

784. Powers ancillary to power to require production of books or documents

784. The power to require a company or other person to produce books or documents under section 778 or 780 shall also include the following powers:

• (a) if the books or documents are produced, the power to take copies of or extracts from them;

• (b) if the books or documents are produced, the power to require the following persons to provide, as far as they are reasonably able to do so, an explanation of any of the books or documents, including an explanation of any apparent omissions from them or of any omission of any book or document—

• (i) the person producing the books or documents;

• (ii) a present or past officer of the company in question; or

• (iii) a person who was or is employed by the company in question, including a person employed in a professional, consultancy or similar capacity;

• (c) if the books or documents are not produced, the power to require the person who was required to produce them to state, to the best of that person’s knowledge and belief, where they are; and

• (d) the power to require the company or any of the persons specified in paragraph (b) to give all assistance to the F587[Authority] as the company or the person is reasonably able to give in connection with an examination of the books or documents in question.

785. Offences in relation to requirement to produce books or documents

785. (1) Subject to subsection (2), a person who fails to comply with a requirement under section 778, 780 or 784 to produce books or documents or to provide an explanation or to make a statement shall be guilty of a category 2 offence.

• (2) In any proceedings against a person in respect of an offence under subsection (1) consisting of a failure to comply with a requirement to produce books or documents, it shall be a defence to prove both that—

• (a) the books or documents were not in that person’s possession or under that person’s control, and

• (b) it was not reasonably practicable for that person to comply with the requirement.

• (3) A person who provides an explanation or makes a statement required under section 783 that is false or misleading in a material respect knowing it to be so false or misleading shall be guilty of a category 2 offence.

• (4) Notwithstanding section 286, a person who with notice of a direction given under section 778 or 780 destroys, mutilates, falsifies or conceals any document that is the subject of the direction shall be guilty of a category 2 offence.

• (5) A statement made or an explanation provided by an individual in compliance with a requirement under section 784 may be used against that person in any proceedings except proceedings for the prosecution of that person (other than for an offence under subsection (1) or (3)).

786. Expenses relating to examination of books or documents

786. (1) On the application of the F588[Authority, the court may direct that a company that is the subject of a direction given under section 778 shall be liable to repay the Authority] so much of the expenses of and incidental to the examination of books or documents produced as the court directs.

• (2) Without prejudice to subsection (1) but subject to subsection (4), where a court enters a conviction or makes an order in a case set out in subsection (3), the court may, in the same proceedings, order the person concerned to repay the F588[Authority] so much of the expenses of and incidental to an examination following a direction given under section 778 as the court directs.

• (3) The cases referred to in subsection (2) are where the court—

• (a) convicts the person on indictment of an offence on a prosecution instituted as a result of the direction;

• (b) orders the person to pay damages or restore any property in proceedings brought as a result of the direction; or

• (c) awards damages to or orders the restoration of property to the person in proceedings brought as a result of the direction.

• (4) Where a court makes an order for payment of expenses under subsection (2) against a person to whom subsection (3)(c) relates—

• (a) the court shall not order payment of expenses that are more than one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and

• (b) the order shall not be executed until the person concerned has received the damages or the property has been restored.

787. Entry and search of premises

787. (1) A judge of the District Court may issue a search warrant under this section if satisfied by information on oath laid by a designated officer that there are reasonable grounds for suspecting that any material information is to be found on any premises (including a dwelling).

• (2) A search warrant issued under this section shall be expressed and operate to authorise a named designated officer (the “officer”), accompanied by such other persons as the officer thinks necessary, at any time or times within the period of validity of the warrant, on production of the warrant if so requested, to—

• (a) enter the named premises, if necessary by force;

• (b) search the premises;

• (c) require any person found on the premises to—

• (i) give to the officer his or her name, home address and occupation; and

• (ii) produce to the officer any material information that is in the custody or possession of that person;

• (d) seize and retain any material information found on the premises or in the custody or possession of any person found on the premises; and

• (e) take any other steps that appear to the officer to be necessary for preserving or preventing interference with material information.

• (3) Without prejudice to subsection (4), where—

• (a) the officer finds anything at, or in the custody or possession of any person found on, the premises named in the warrant that the officer has reasonable grounds for believing may be or may contain material information, and

• (b) it is not reasonably practicable for a determination to be made on the premises—

• (i) whether what he or she has found is something that he or she is entitled to seize under the warrant (whether as mentioned in subsection (2)(d) or (4)), or

• (ii) the extent to which what he or she has found contains something that he or she is entitled to seize under the warrant in either of those cases,

the officer’s powers of seizure under the warrant shall include power to seize so much of what he or she has found as it is necessary to remove from the premises to enable that to be determined (referred to subsequently in this section as an “extended power of seizure”).

• (4) Where—

• (a) the officer finds anything at, or in the custody or possession of any person found on, the premises named in the warrant being a book, document or other thing constituting material information (referred to subsequently in this section as “seizable information”) which he or she would be entitled to seize but for its being comprised in something else that he or she has (apart from this subsection) no power to seize, and

• (b) it is not reasonably practicable for the seizable information to be separated, on those premises, from that in which it is comprised,

the officer’s powers of seizure shall include power to seize both the seizable information and that from which it is not reasonably practicable to separate it (also referred to subsequently in this section as an “extended power of seizure”).

• (5) Where, for the purposes of subsection (3) or (4), an issue arises as to either of the following matters, namely:

• (a) whether or not it is reasonably practicable on particular premises for something to be determined; or

• (b) whether or not it is reasonably practicable on particular premises for something to be separated from something else,

the issue shall be decided by reference solely to the following matters:

• (i) how long it would take to carry out the determination or separation on those premises;

• (ii) the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period;

• (iii) whether the determination or separation would (or would if carried out on those premises) involve damage to property;

• (iv) the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation;

• (v) the costs of carrying out the determination or separation on those premises as against the costs of carrying out the determination or separation in another place (being a place in which the F589[Authority can show it would be appropriate to do the thing concerned and in which the Authority] intends to arrange, or does arrange, for the thing to be done); and

• (vi) in the case of separation, whether the separation—

• (I) would be likely, or

• (II) if carried out by the only means that are reasonably practicable on those premises, would be likely,

to prejudice the use of some or all of the separated seizable information for a purpose for which something seized under the warrant is capable of being used.

• (6) Section 788 supplements subsections (3) to (5) and, in particular, as regards the making of arrangements for the storage of, and access to, things seized by virtue of an exercise of the extended power of seizure and for the maintenance of confidentiality as regards any confidential matter comprised in such a thing so seized.

• (7) The officer may—

• (a) operate any computer at the place that is being searched or cause any such computer to be operated by a person accompanying the officer; and

• (b) require any person at that place who appears to the officer to be in a position to facilitate access to the information held in any such computer or that can be accessed by the use of that computer—

• (i) to give to the officer any password necessary to operate it;

• (ii) otherwise to enable the officer to examine the information accessible by the computer in a form in which the information is visible and legible; and

• (iii) to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible.

• (8) The power to issue a warrant under this section is in addition to and not in substitution for any other power to issue a warrant for the search of any place or person.

• (9) The period of validity of a warrant shall be 30 days after the date of its issue but that period of validity may be extended in accordance with subsections (10) and (11).

• (10) The officer may, during the period of validity of a warrant (including such period as previously extended under subsection (11)), apply to a judge of the District Court for an order extending the period of validity of the warrant and such an application shall be grounded upon information on oath laid by the officer stating, by reference to the purpose or purposes for which the warrant was issued, the reasons why he or she considers the extension to be necessary.

• (11) If the judge of the District Court is satisfied that there are reasonable grounds for believing, having regard to that information so laid, that further time is needed so that the purpose or purposes for which the warrant was issued can be fulfilled, the judge may make an order extending the period of validity of the warrant by such period as, in the opinion of the judge, is appropriate and just; where such an order is made, the judge shall cause the warrant to be suitably endorsed to indicate its extended period of validity.

• (12) Nothing in the preceding subsections prevents a judge of the District Court from issuing, on foot of a fresh application made under subsection (1), a further search warrant under this section in relation to the same premises.

• (13) In this section—

“computer” includes a personal organiser or any other electronic means of information storage or retrieval;

“computer at the place that is being searched” includes any other computer, whether at the place being searched or at any other place, that is lawfully accessible by means of that computer;

“designated officer” means the F589[Authority or a duly authorised officer of the Authority];

“material information” means—

• (a) any books or documents production of which has been required under—

• (i) any of the provisions applied by section 765, namely sections 750 and 752 to 759; or

• (ii) any of sections 767 and 778 to 780;

and which have not been produced in compliance with that requirement; or

• (b) any books, documents or other things (including a computer) which the designated officer has reasonable grounds for believing may provide evidence of or be related to the commission of an offence under this Act.

• (14) Notwithstanding the repeal of section 68(2) of the Investment Funds, Companies and Miscellaneous Provisions Act 2005, the saving in that provision concerning section 20(3) of the Act of 1990 is not affected.

788. Supplemental provisions in relation to section 787(3) to (5)

788. (1) In this section—

“extended power of seizure” shall be read in accordance with section 787(3) or (4), as appropriate;

“material information” has the same meaning as it has in section 787;

“officer” means the officer named as mentioned in section 787(2) in the warrant concerned;

“seizable information” shall be read in accordance with section 787(4).

• (2) Save where the officer is of opinion that compliance with this subsection could result in the concealment, falsification, destruction or the disposal otherwise of material information, an extended power of seizure shall not be exercised unless the officer has first made the following arrangements in relation to the thing or things, the subject of the proposed exercise of that power, namely reasonable arrangements:

• (a) providing for the appropriate storage of that thing or those things;

• (b) allowing reasonable access, from time to time, to that thing or those things by the owner, lawful custodian or possessor thereof (including, in the case of documents or information in non-legible form, by the making of copies or the transmission of matter by electronic means); and

• (c) providing for confidentiality to be maintained as regards any confidential matter comprised in that thing or those things;

being arrangements to apply pending the making of the foregoing determination or the carrying out of the foregoing separation and the consequent return of anything to the owner, lawful custodian or possessor that is not material information.

• (3) In deciding what the terms of those arrangements shall be, the officer shall have regard to any representations reasonably made on the matter by the owner, lawful custodian or possessor of the thing or things and endeavour, where practicable, to secure the agreement of that person to those terms.

• (4) Where—

• (a) by reason of the officer being of the opinion referred to in subsection (2), the arrangements referred to in paragraphs (a) to (c) of that subsection are not made in relation to the thing or things the subject of the proposed exercise of the extended power of seizure, or

• (b) circumstances arise subsequent to the exercise of the extended power of seizure that make it appropriate to vary the arrangements made under that subsection,

the officer shall, as the case may be—

• (i) make, as soon as practicable after the exercise of that power of seizure, the arrangements referred to in subsection (2)(a) to (c) in relation to the thing or things concerned, or

• (ii) vary the arrangements made under that subsection in a manner he or she considers appropriate.

• (5) In deciding what shall be the terms of those arrangements or that variation, the officer shall have regard to any representations on the matter reasonably made by the owner, lawful custodian or possessor of the thing or things concerned and endeavour, where practicable, to secure the agreement of that person to those terms.

• (6) Where an extended power of seizure is exercised, it shall be the duty of the officer—

• (a) to carry out the determination or separation concerned as soon as practicable, and, in any event, subject to subsection (7), within the prescribed period, after the date of its exercise, and

• (b) as respects (as the case may be)—

• (i) anything seized in exercise of the power found not to be material information, or

• (ii) anything separated from another thing in the exercise of the power that is not material information,

to return, as soon as practicable, and, in any event, subject to subsection (7), within the prescribed period, after the date of that finding or separation, the thing to its owner or the person appearing to the officer to be lawfully entitled to the custody or possession of it.

• (7) On application to the court by the F590[Authority or any person affected by the exercise of an extended power of seizure, the court may, if it thinks fit and having had regard, in particular, to any submissions made on behalf of the Authority with regard to the progress of any investigation being carried on by the Authority] for the purpose of which the powers under this section had been exercised, give one or more of the following:

• (a) a direction that the doing of an act referred to in subsection (6)(a) or (b) shall be done within such lesser or greater period of time than that specified in that provision as the court determines;

• (b) a direction with respect to the making, variation or operation of arrangements referred to in subsection (2)(a) to (c) in relation to a thing concerned or a direction that such arrangements as the court provides for in the direction shall have effect in place of any such arrangements that have been or were proposed to be made;

• (c) a direction of any other kind that the court considers it just to give for the purpose of further securing the rights of any person affected by the exercise of an extended power of seizure, including, if the exceptional circumstances of the case warrant doing so, a direction that a thing seized be returned to its owner or the person appearing to the court to be lawfully entitled to the custody or possession of it, notwithstanding that the determination or separation concerned has not occurred.

• (8) Any such direction may—

• (a) relate to some or all of the things the subject of the exercise of the extended power of seizure,

• (b) be expressed to operate subject to such terms and conditions as the court specifies, including, in the case of a direction under subsection (7)(c), a condition that an officer of the F590[Authority] be permitted, during a specified subsequent period, to re-take and retain possession of the thing returned for the purpose of carrying out the determination or separation concerned (and, retain after the expiry of that period, that which is found to be material information or is material information).

• (9) An application under subsection (7) shall be by motion and may, if the court directs, be heard otherwise than in public.

• (10) In subsection (6) “prescribed period” means—

• (a) in the case of paragraph (a) of it—

• (i) unless subparagraph (ii) applies, 3 months, or

• (ii) such other period as the Minister prescribes in consequence of a review that may, from time to time, be carried out by or on behalf of the Minister of the operation and implementation of section 787(3) to (5) and this section,

• (b) in the case of paragraph (b) of it—

• (i) unless subparagraph (ii) applies, 7 days, or

• (ii) such other period as the Minister prescribes in consequence of such a review that may, from time to time, be carried out by or on behalf of the Minister,

but no regulations made to prescribe such a period shall be read as operating to affect any direction given by the court under subsection (7)(a) in force on the commencement of those regulations.

• (11) The Minister may make regulations providing for such supplementary, consequential and incidental matters to or in respect of section 787(3) to (5) and subsections (2) to (6) of this section as he or she considers necessary or expedient.

789. Offences in relation to entry and search of premises and provisions catering for certain contingencies concerning designated officers

789. (1) A person shall be guilty of a category 2 offence if that person—

• (a) obstructs the exercise of a right of entry or search conferred by a search warrant issued under section 787;

• (b) obstructs the exercise of a right conferred by a search warrant issued under section 787 to seize and retain material information (as defined in section 787(13));

• (c) fails to comply with a requirement under section 787(2)(c) or gives a name, address or occupation that is false or misleading; or

• (d) fails to comply with a requirement under section 787(7)(b).

• (2) If, at any time after a search warrant has been issued under section 787—

• (a) the designated officer named therein (including any designated officer who is named therein by reason of any prior application under this subsection)—

• (i) has ceased to be an officer of the F591[Authority] (by reason of death, retirement, resignation, dismissal, reassignment or any other cause), or

• (ii) is otherwise unable to perform his or her functions (by reason of absence from duty, illness, incapacity or any other cause),

or

• (b) the F591[Authority] has reasonable grounds for apprehending that any of the circumstances referred to in paragraph (a) is likely to arise,

then another designated officer may apply to a judge of the District Court for an order under subsection (3).

• (3) On the hearing of an application under subsection (2) the judge of the District Court may, if—

• (a) the judge is satisfied that it is appropriate to do so, and

• (b) the date to be specified under paragraph (ii) will fall during the period of validity of the warrant (including, if that is the case, such period as extended under section 787(11)),

make an order directing that the search warrant be endorsed so as to—

• (i) substitute the name of another designated officer (the “new officer”) for the name of the designated officer who was expressed to have been authorised under the search warrant immediately prior to the making of the order (the “previous officer”), and

• (ii) specify the time and date from which that substitution is to take effect.

• (4) Where an order under subsection (3) is made then, with effect from the time on the date endorsed pursuant to paragraph (ii) of that subsection—

• (a) the search warrant shall continue in full force and effect, but shall operate to authorise the new officer to execute the warrant as fully as if he or she had been the designated officer named in the warrant when it was first issued,

• (b) the search warrant shall no longer operate to authorise the previous officer to execute the warrant (but without prejudice to the validity of anything done previously thereunder by that officer), and

• (c) the order shall operate to—

• (i) relieve the previous officer from any duties to which he or she had been subject under section 788(4), (5) or (6) (but without prejudice to the validity of anything done previously thereunder by that officer), and

• (ii) impose upon the new officer any duties under section 788(4), (5) or (6) that have not yet been fully discharged.

• (5) If—

• (a) the period of validity of a search warrant issued under section 787 (including, if that is the case, such period as extended under section 787(11)) has expired, and

• (b) either of the conditions specified in subsection (2)(a) or (b) is satisfied,

then a designated officer may apply to a judge of the District Court for an order providing for each of the matters referred to in subsections (3) and (4), other than those relating to the conferral or removal of the power of execution, and, on the making of such an application, the judge of the District Court may make such an order accordingly and subsections (3) and (4) shall apply for that purpose with any necessary modifications.

• (6) For the purpose of subsection (5), subsection (2)(a) shall apply as if for “(including any designated officer who is named therein by reason of any prior application under this subsection)” there were substituted “(including any designated officer who is named therein by reason of any prior application under this subsection or subsection (5))”.

• (7) An application under subsection (2) or (5) may, if a judge of the District Court directs, be heard otherwise than in public.

790. Restriction on disclosure of information, books or documents

790. (1) No information, book or document relating to a company that has been obtained under any of sections 778 to 780, 783 or 787 shall be published or disclosed unless—

• (a) the company consents to the publication or disclosure,

• (b) the publication or disclosure is, in the opinion of the F592[Authority], required under any of section 791(a) to (n), or

• (c) the publication or disclosure is made to a competent authority specified in section 792.

• (2) A person who publishes or discloses any information, book or document in contravention of subsection (1) shall be guilty of a category 2 offence.

791. Information, books or documents may be disclosed for certain purposes

791. Any information, book or document relating to a company (the “company”) that has been obtained under any of sections 778 to 780, 783 or 787 may be published or disclosed without the consent of the company if, in the F593[opinion of the Authority], publication or disclosure is required—

• (a) with a view to the investigation or prosecution of any offence under—

• (i) this Act;

• (ii) the Central Bank Acts 1942 to 2010;

• (iii) the Exchange Control Acts 1954 to 1990;

• (iv) the Insurance Acts 1909 to 2000;

• (v) the Taxes Consolidation Act 1997 or an offence under an enactment referred to in section 1078(1) of that Act; or

• (vi) regulations relating to insurance made under the European Communities Act 1972;

• (b) with a view to the investigation or prosecution of any offence entailing misconduct in connection with the management of the company’s affairs or the misapplication or wrongful retainer of its property;

• (c) for the purpose of—

• (i) assessing the liability of a person in respect of a tax or duty or other payment owed or payable to—

• (I) the State;

• (II) a local authority and, where the context so requires, a joint body (within the meaning of the Local Government Act 2001); or

• (III) the Health Services Executive;

or

• (ii) collecting an amount due in respect of such tax or duty or other payment;

• (d) for the purpose of the performance by a tribunal (to which the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 apply) of any of its functions;

• (e) for the purpose of the performance by a commission established under the Commissions of Investigation Act 2004 of any of its functions;

• (f) for the purpose of assisting or facilitating the performance by any Minister of the Government of any of his or her functions;

• (g) for the purpose of assisting or facilitating the performance by any accountancy or other professional organisation of its disciplinary functions with respect to any of its members;

• (h) for the purpose of the performance by the Irish Takeover Panel or any authorised market operator established in the State of any of its functions in relation to the company or any other person who, in its opinion, is connected with the company;

• (i) for the purpose of the performance by the Competition Authority of any of its functions;

• (j) for the purpose of the performance by a committee (being a committee within the meaning of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 as amended, to which sections 3 to 14 and 16 of that Act apply) of any of its functions;

• (k) for the purpose of complying with the requirements of procedural fairness, to be made to—

• (i) any company in relation to which an inspector has been appointed under section 763 or 764;

• (ii) any person required by the F593[Authority] to give any information under section 767;

• (iii) any company to which the F593[Authority] has given a direction under section 778; or

• (iv) any person named in a report or other document prepared by the F593[Authority], in the ordinary course of administration, in consequence of the exercise of powers under section 767 or 778;

• (l) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Part with respect to reports made by inspectors who have been appointed, under this Part or that section, by the court or by the F593[Authority];

• (m) with a view to the institution by the F593[Authority] of proceedings for the winding up under this Act of the company or otherwise for the purposes of proceedings instituted by him or her for that purpose; or

• (n) for the purpose of proceedings under section 787 or 842.

792. Information, books or documents may be disclosed to competent authority

792. (1) Any information, book or document relating to a company that has been obtained under any of sections 778 to 780, 783 or 787 may be disclosed to a competent authority without the F594[consent of the company, if the Authority considers that the information, book or document is required for a purpose specified in paragraph (a), (b) or (c) of section 944P(3)].

• (2) For the purposes of subsection (1), a competent authority includes—

• (a) the Minister;

• (b) a person authorised by the Minister;

• (c) an inspector appointed under this Act;

• (d) the Registrar;

• (e) the Minister for Finance;

• (f) an officer authorised by the Minister for Finance;

• (g) the Revenue Commissioners;

• (h) the Supervisory Authority;

• F595[(ha) the Registrar of Beneficial Ownership;

• (hb) the Registrar of Friendly Societies;

• (hc) the Charities Regulatory Authority;

• (hd) the Competition and Consumer Protection Commission;

• (he) the Data Protection Commission;

• (hf) the Insolvency Service of Ireland;

• (hg) Office of the Protected Disclosures Commissioner;

• (hh) the Criminal Assets Bureau;]

• (i) any court of competent jurisdiction;

• (j) a supervisory authority within the meaning of regulations relating to insurance made under the European Communities Act 1972;

• (k) the Central Bank; or

• (l) any authority established outside the State in which there are vested—

• (i) functions of investigating or prosecuting an offence similar to an offence referred to in section 791(a) or (b);

• (ii) functions of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the state in which it is established or any other authority established in that state;

• (iii) functions of collecting an amount due in respect of a tax or duty or other payment referred to in subparagraph (ii); or

• (iv) functions that are similar to the functions referred to in any of section 791(d) to (h).

793. Offence of falsifying, concealing, destroying or otherwise disposing of document or record

793. (1) A person shall be guilty of a category 2 offence who—

• (a) knows or suspects that—

• (i) an investigation by the F596[Authority] into an offence under this Act is being or is likely to be carried out; and

• (ii) a document or record is or would be relevant to the investigation;

and

• (b) either—

• (i) falsifies, conceals, destroys or otherwise disposes of that document or record; or

• (ii) causes or permits the falsification, concealment, destruction or other disposal of that document or record.

• (2) Subject to subsection (3), where a person falsifies, conceals, destroys or otherwise disposes of a document or record, or causes or permits its falsification, concealment, destruction or other disposal, in such circumstances that it is reasonable to conclude that the person knew or suspected that—

• (a) an investigation by the F596[Authority] into an offence under this Act was being or was likely to be carried out; and

• (b) a document or record was or would be relevant to the investigation;

that person shall be taken for the purposes of this section to have so known or suspected.

• (3) Subsection (2) does not apply if the court or the jury, as the case may be, is satisfied, having regard to all the evidence, that there is reasonable doubt as to whether the person so knew or suspected.

793A. F597[ Offence of obstructing, interfering with or impeding officer of Authority

793A. A person shall be guilty of a category 2 offence if that person obstructs or interferes with an officer of the Authority in the course of exercising a power conferred on the officer by this Act or impedes the exercise by the officer of such a power.]

794. Production and inspection of books or documents when offence suspected

794. (1) This section applies if, on an application to the District Court by a person specified in subsection (3), there is shown to be reasonable cause to believe that—

• (a) a person has, while an officer of a company, committed an offence in connection with the management of the company’s affairs; and

• (b) evidence of the commission of the offence is to be found in—

• (i) any books or documents of or under the control of the company; or

• (ii) any documents of a person carrying on the business of banking in so far as they relate to the company’s affairs.

• (2) In any case to which this section applies, the District Court may make an order—

• (a) authorising any person named in the order to inspect the books or documents referred to in subsection (1)(b)(i) or (ii), as the case may be, or any of them for the purpose of investigating and obtaining evidence of the offence; or

• (b) in the case of books or documents referred to in subsection (1)(b)(i), requiring the secretary of the company or any other officer of the company who is named in the order to produce the books or documents or any of them to a person named in the order at the place named in the order.

• (3) The District Court may make the order only on the application of—

• (a) the Director of Public Prosecutions;

• (b) the Director; or

• (c) a Superintendent of the Garda Síochána.

795. Saving for privileged information

795. (1) In this section—

“computer” has the same meaning as it has in section 787;

“customer”, in relation to a person carrying on the business of banking, includes a person who has in the past availed himself or herself of one or more of the services of the person, as defined in section 149(12) of the Consumer Credit Act 1995;

“information” means information contained in a document, a computer or otherwise; “privileged legal material” means information which, in the opinion of the court, a person is entitled to refuse to produce on the grounds of legal professional privilege.

• (2) Subject to subsection (3), nothing in this Part shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.

• (3) The disclosure of information may be compelled, or possession of it taken, pursuant to the powers in this Part, notwithstanding that it is apprehended that the information is privileged legal material provided the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the court of the issue as to whether the information is privileged legal material.

• (4) Without prejudice to subsection (5), where, in the circumstances referred to in subsection (3), information has been disclosed or taken possession of pursuant to the powers in this Part, the person—

• (a) to whom such information has been so disclosed, or

• (b) who has taken possession of it,

shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (5) in relation to the matter concerned) apply to the court for a determination as to whether the information is privileged legal material and an application under this subsection shall be made within F598[14 days] after the date of disclosure or the taking of possession.

• (5) A person who, in the circumstances referred to in subsection (3), is compelled to disclose information, or from whose possession information is taken, pursuant to the powers in this Part, may apply to the court for a determination as to whether the information is privileged legal material.

• (6) Pending the making of a final determination of an application under subsection (4) or (5), the court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—

• (a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court,

• (b) the appointment of a F598[person or persons] with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of—

• (i) examining the information, and

• (ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.

• (7) An application under subsection (4), (5) or (6) shall be by motion and may, if the court directs, be heard otherwise than in public.

• (8) The F599[Authority shall not], under any of sections 778 to 780, require the production, by a person carrying on the business of banking, of a book or document relating to the affairs of a customer, or relating to the affairs of any other person, unless either—

• (a) the F599[Authority] considers it necessary to do so for the purposes of investigating the affairs of the person carrying on the business of banking, or

• (b) the customer or other person is a person on whom a requirement has been imposed by virtue of that section.

• (9) The publication, in pursuance of any provision of this Chapter, of any report, information, book or document shall be privileged.

796. Assistance to company law authority

796. (1) The F600[Authority may] exercise the powers conferred on him or her by this Part for the purpose of assisting a company law authority if—

• (a) the F600[Authority] has received a request from that company law authority for assistance in connection with inquiries being carried out by it or on its behalf, and

• (b) the F600[Authority] is satisfied that such assistance is for the purpose of the discharge by the authority of its supervisory or regulatory functions.

• (2) The F600[Authority may] decline to accede to a request referred to in subsection (1) if—

• (a) the F600[Authority] considers that it is not appropriate to give assistance, or

• (b) the company law authority making the request does not undertake to make such contribution to the costs attendant on the request as the F600[ Authority] considers appropriate.

• (3) In this section, “company law authority” means—

• (a) an authority outside the State that performs functions of a supervisory or regulatory nature in relation to bodies corporate or undertakings or their officers; or

• (b) a person acting on behalf of such an authority.

PART 14 COMPLIANCE AND ENFORCEMENT

CHAPTER 1 Compliance and protective orders

797. Court may order compliance by company or officer

797. (1) This section applies if a company or an officer of a company—

• (a) has failed to comply with a provision of this Act, and

• (b) the company or officer has failed to remedy the default within 14 days (or such longer period as may be specified in the notice) after the date of service by any person referred to in subsection (3) on the company or officer of a notice requiring the company or officer to remedy the default.

• (2) In any case to which this section applies, the court, on the application of a person specified in subsection (3), may order the company or officer in default to remedy the default within such time as the court specifies.

• (3) The court may make the order only on the application of one of the following:

• (a) any member of the company;

• (b) any creditor of the company;

• (c) the F601[Authority]; or

• (d) the Registrar.

• (4) In making an order under subsection (2), the court may order that the company or the officers responsible for the default pay all costs of and incidental to the application.

• (5) Subject to subsection (6), no order may be made under this section in relation to a default that, in the opinion of the court, constitutes a wrong done to the company an action in respect of which, under the general law, is maintainable by the company alone, as distinct from another by derivative proceedings.

• (6) Subsection (5) does not apply if the facts constituting the default in question amount, in the opinion of the court, to the commission of an offence.

• (7) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties (including restriction under Chapter 3 of this Part and disqualification under Chapter 4 of this Part) on a company or its officers in respect of the default in question.

• (8) In this section, “officer” means director, shadow director, promoter, receiver, liquidator, statutory auditor or secretary.

798. Court may restrain directors and others from removing assets

798. (1) The court may make an order restraining a director or other officer of a company, or a company, from—

• (a) removing his or her or the company’s assets from the State, or

• (b) reducing his or her or the company’s assets within or outside the State below an amount specified in the order.

• (2) The court may make the order if it is satisfied that—

• (a) the applicant has a qualifying claim, and

• (b) there are grounds for believing that the director or officer, or the company, may remove or dispose of his or her assets or the assets of the company with a view to evading his or her obligations or those of the company and frustrating an order of the court.

• (3) The court may make the order only on the application of—

• (a) the company,

• (b) a director, member, liquidator, receiver or creditor of the company, or

• (c) the F602[Authority].

• (4) In subsection (2)(a), “qualifying claim” means a claim that—

• (a) is a substantive civil cause of action or right to seek a declaration of personal liability or to claim damages against the director, officer or company, and

• (b) arises—

• (i) under this Act, or

• (ii) under the constitution of the company, or

• (iii) from the holding of an office of the company.

CHAPTER 2 Disclosure orders

799. Interpretation (Chapter 2)

799. (1) In this Chapter—

“disclosure order” means an order under section 800;

“share acquisition agreement” has the meaning given to it by section 808.

• (2) Any reference in this Chapter to share capital or relevant share capital in relation to a company is a reference to share capital that confers the right to vote in all circumstances at a general meeting of that company, and a reference to share shall be read accordingly.

800. Court may make disclosure order

800. (1) On the application of—

• (a) any person who has a financial interest in a company, or

• (b) the F603[Authority],

the court may make an order specified in section 801 in respect of all or any of the shares in or debentures of the company.

• (2) An application under this section shall be supported by such evidence as the court may require.

• (3) The court may make a disclosure order only if the court considers that—

• (a) it is just and equitable to do so, and

• (b) in the case of an application made other than by the F603[Authority], the financial interest of the applicant is or will be prejudiced by the non-disclosure of any interest in the shares in or debentures of the company.

• (4) The court may, before hearing an application under this section, require the applicant to give security for the payment of the costs of hearing the application or any consequential proceedings.

• (5) If an application is made under this section by the F603[Authority then there are not available to the Authority]—

• (a) the powers under section 764(1) as regards appointing one or more competent inspectors to investigate and report on any matter in so far as such investigation and reporting would relate to the same shares or debentures of the company in question, or

• (b) the powers under section 767 to require information as to persons interested in shares or debentures, being the same shares or debentures of the company in question,

as the application under this section relates to.

• (6) Section 809 confers additional powers on the court for the purposes of ensuring that disclosure of the information sought, in cases of share acquisition agreements, is achieved.

• (7) For the purposes of this section, “financial interest” includes any interest as member, contributory, creditor, employee, co-adventurer, examiner, lessor, lessee, licensor, licensee, liquidator or receiver either in relation to the company in respect of whose shares or debentures the disclosure order is sought or a related company.

801. Types of disclosure order

801. The court may make an order under section 800(1)—

• (a) requiring any person whom the court believes has or is able to obtain all or any of the following information to disclose to the court so much of that information that the person has or is able to obtain:

• (i) the names and addresses of persons currently interested, or interested at any time during a period specified in the order, in the shares in or debentures of a company; and

• (ii) the name and address of any person who acts or has acted on behalf of any of those persons in relation to the shares or debentures;

• (b) requiring any person whom the court believes to be currently interested, or to have been interested at any time during a period specified in the order, in the shares in or debentures of a company—

• (i) to confirm or deny that that is the case, and

• (ii) if confirming, to disclose such further information as the court may require,

or

• (c) requiring a person interested in the shares in or debentures of a company specified in the order to disclose in respect of those shares or debentures to the court—

• (i) the information required in paragraph (a)(i) to (ii), and

• (ii) such further information as the court may require.

802. Procedure on application for disclosure order

802. (1) A person intending to apply for a disclosure order shall give not less than 10 days’ notice of the intention to apply to—

• (a) the company in respect of whose shares or debentures the order is sought, and

• (b) the person to whom the order is to be directed.

• (2) If, on that application, it is intended also to apply for an order under section 809, not less than 10 days’ notice of the intention to apply for such an order shall be given by the applicant to the person to whom that order is to be directed.

• (3) Without prejudice to subsection (2), the applicant shall also serve on any person specified by the court such notice of the application as the court may direct.

• (4) On the hearing of the application every person notified under subsection (1), (2) or (3) may appear and adduce evidence.

803. Scope of disclosure order

803. (1) A disclosure order may require the person to whom it is addressed—

• (a) to give particulars of that person’s own past or present interest in shares comprised in the share capital of the company or in debentures of the company held by that person at any time during the period specified in the order,

• (b) where that person’s interest is a present interest and any other interest in the shares or debentures subsists, to give such particulars of that other interest that are—

• (i) required by the order, and

• (ii) within that person’s knowledge,

• (c) where another interest in the shares or debentures subsisted at any time during the period specified in the order when the person’s own interest subsisted, to give such particulars of that other interest that are—

• (i) required by the order, and

• (ii) within that person’s knowledge,

• (d) where that person’s interest is a past interest, to give those particulars, that are within his or her knowledge, of the person who held that interest immediately after him or her.

• (2) A disclosure order shall specify the information to be given to the court under the order in respect of any person, shares or debentures to which it refers and such information shall be given in writing.

• (3) Section 807 supplements subsection (2) as regards particular information to be given in cases of share acquisition agreements.

• (4) For the purposes of this section, and without prejudice to sections 804 to 808, an interest in shares in or debentures of a company includes a present or past right, or entitlement to acquire a right, to subscribe for shares or debentures if, on the basis that those shares or debentures would be, or (as the case may be) would have been, comprised in the share capital of the company or issued by it, as the case may be.

804. Interests in shares and debentures for purposes of section 803: general

804. (1) Without prejudice to the subsequent provisions of this Chapter, this section applies to the construction, for the purposes of—

• (a) section 803, and

• (b) the subsequent sections of this Chapter as they relate to any spouse, minor child, body corporate or a party to an agreement,

(in this section referred to, respectively, as the “relevant purposes” and the “relevant sections”) of references to—

• (i) a person’s being interested in shares or debentures, or

• (ii) an interest in shares or debentures.

• (2) For the relevant purposes, a reference to an interest in shares or debentures in the relevant sections is to be read as including an interest of any kind whatsoever in the shares or debentures.

• (3) Accordingly there are to be disregarded any restraints or restrictions to which the exercise of any right attached to the interest is or may be subject.

• (4) Where property is held on trust and an interest in shares or debentures is comprised in the property, a beneficiary of the trust who, apart from this subsection, does not have an interest in the shares or debentures, as appropriate, is to be taken, for the relevant purposes, as having such an interest; but this subsection is without prejudice to the following provisions of this section.

• (5) A person is taken, for the relevant purposes, to have an interest in shares or debentures if—

• (a) the person enters into a contract for their purchase by him or her (whether for cash or other consideration), or

• (b) in the case of shares, not being the registered holder of the shares, the person is entitled to exercise any right conferred by the holding of the shares or is entitled to control the exercise of any such right.

• (6) For the purposes of subsection (5)(b), a person is entitled to exercise or control the exercise of any right conferred by the holding of shares if the person—

• (a) has a right (whether subject to conditions or not) the exercise of which would make him or her so entitled, or

• (b) is under an obligation (whether so subject or not) the fulfilment of which would make him or her so entitled.

• (7) For the relevant purposes, a person is taken to have an interest in shares or debentures if, otherwise than by virtue of having an interest under a trust, the person has a right to acquire an interest in shares or debentures, as appropriate, or is under an obligation to take an interest in shares or debentures, as appropriate, whether in any case the right or obligation is conditional or absolute.

• (8) Without prejudice to subsections (2) and (3), rights or obligations to subscribe for any shares shall not be taken for the purposes of subsection (7) to be rights to acquire, or obligations to take, any interest in shares.

• (9) Where persons have a joint interest, each of them shall be taken, for the relevant purposes, to have that interest.

805. Family and corporate interests

805. (1) For the purposes of section 803, a person is taken to be interested in any shares or debentures in which the person’s spouse or civil partner or any child (who is a minor) of the person is interested.

• (2) For the purposes of section 803 and subsection (1), a person is taken to be interested in shares or debentures if a body corporate is interested in them and—

• (a) that body or its directors are accustomed to act in accordance with his or her directions or instructions, or

• (b) he or she is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of that body corporate.

• (3) Where a person is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of a body corporate and that body corporate is entitled to exercise or control the exercise of any of the voting power at general meetings of another body corporate (the “effective voting power”) then, for the purposes of subsection (2)(b), the effective voting power is taken as exercisable by that person.

• (4) For the purposes of subsections (2) and (3) a person is entitled to exercise or control the exercise of voting power if—

• (a) the person has a right (whether subject to conditions or not) the exercise of which would make him or her so entitled, or

• (b) the person is under an obligation (whether or not so subject) the fulfilment of which would make him or her so entitled.

• (5) A reference in this section to a child of a person shall be deemed to include a reference to a child of the person’s civil partner who is ordinarily resident with the person and the civil partner.

806. Share acquisition agreements — attribution of interests held by other parties

806. (1) In the case of a share acquisition agreement, each party to the agreement shall be taken, for the purposes of section 803, to be interested in all shares in the company in which any other party to it is interested apart from the agreement (whether or not the interest of the other party in question was acquired, or includes any interest which was acquired, in pursuance of the agreement).

• (2) For those purposes, an interest of a party to such an agreement in shares in the company is an interest apart from the agreement if the party is interested in those shares otherwise than by virtue of the application of this section and section 808 in relation to the agreement.

• (3) Accordingly, any such interest of the person (apart from the agreement) includes for those purposes any interest treated as his or hers—

• (a) under the preceding provisions of this Chapter, or

• (b) by the application of this section (and section 808) in relation to any other agreement with respect to shares in the company to which he or she is a party.

807. Particulars of interests referred to in section 806 to be given in compliance with disclosure order

807. In addition to the particulars (if any) to be given otherwise by the person in compliance with such order, the particulars given, in compliance with a disclosure order, with respect to his or her interest in shares in the company by a person who is, or (as the case may be) was at any time in the period specified in the order, a party to a share acquisition agreement shall—

• (a) state that the person is or (as the case may be) was at a particular time a party to such an agreement,

• (b) include the names and (so far as known to him or her) the addresses of the other persons who are or (as the case may be) were at a particular time parties to the agreement, identifying them as such, and

• (c) state whether or not any of the shares to which the particulars given in compliance with the disclosure order relate are shares in which he or she is or (as the case may be) was interested by virtue of sections 806 and 808 and, if so, the number of those shares.

808. “Share acquisition agreement” — meaning

808. (1) Subject to the following provisions of this section, “share acquisition agreement”, for the purposes of this Chapter, means an agreement between 2 or more persons which includes provision for the acquisition by any one or more of the parties to the agreement of interests in shares comprised in the share capital of the company concerned but only if the following 2 conditions are satisfied.

• (2) Those conditions are—

• (a) the agreement also includes provisions imposing obligations or restrictions on any one or more of the parties to the agreement with respect to their use, retention or disposal of interests in that company’s shares acquired in pursuance of the agreement (whether or not together with any other interests of theirs in that company’s shares to which the agreement relates), and

• (b) any interest in the company’s shares is in fact acquired by any of the parties in pursuance of the agreement.

• (3) The reference in subsection (2)(a) to the use of interests in shares in the company is to the exercise of any rights or of any control or influence arising from those interests (including the right to enter into any agreement for the exercise, or for control of the exercise, of any of those rights by another person).

• (4) Once any interest in shares in the company has been acquired in pursuance of such an agreement as is mentioned in subsection (1), the agreement continues to be a share acquisition agreement for the purposes of this Chapter irrespective of—

• (a) whether or not any further acquisitions of interests in the company’s shares take place in pursuance of the agreement, and

• (b) any change in the persons who are for the time being parties to it, and

• (c) any variation of the agreement, so long as the agreement continues to include provisions of any description mentioned in subsection (2)(a).

• (5) References in subsection (4) to the agreement include any agreement having effect (whether directly or indirectly) in substitution for the original agreement.

• (6) In this section, and also in references elsewhere in this Chapter to a share acquisition agreement as defined by this section, “agreement” includes any agreement or arrangement; and references in this section to provisions of an agreement—

• (a) accordingly include undertakings, expectations or understandings operative under any arrangement, and

• (b) (without prejudice to the foregoing) also include any provisions, whether express or implied and whether absolute or not.

• (7) An agreement which is not legally binding is not a share acquisition agreement for the purposes of this Chapter unless it involves mutuality in the undertakings, expectations or understandings of the parties to it.

809. Supplemental power of court in relation to a share acquisition agreement

809. (1) The court has the following power if—

• (a) on the making of an application for a disclosure order, or

• (b) at any time subsequent to the making of such an order (on application to the court in that behalf),

it has grounds to believe that all of the information sought to be obtained by the disclosure order will not, or may not, be obtained by reason of a person who is both—

• (i) a party or former party to a share acquisition agreement, and