Companies Act 2014

• (ii) the person against whom the order is sought to be, or has been, made, appearing not to be in possession of all the facts relevant to the application of section 806 as it applies, or applied, to that agreement.

• (2) That power of the court is to make an order requiring any other party or former party to the share acquisition agreement to give, in writing, to the court such particulars as the court specifies, and which the party or former party is able to give, in relation to matters affecting the application of section 806 as it applies, or applied, to that agreement and, in particular, the party’s or former party’s interests in shares in the company that are or were the subject of attribution to another party to that agreement by virtue of that application.

• (3) An application under subsection (1)(b) may be made by a person having a financial interest (within the meaning of section 800) in the company or by the F604[Authority].

• (4) A person intending to make an application under subsection (1)(b) shall give not less than 10 days’ notice of the intention to apply to—

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

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

• (5) An applicant under subsection (1)(b) shall also serve on any person specified by the court such notice of the application as the court may direct.

• (6) On the hearing of an application under subsection (1)(b) every person notified under subsection (4) or (5) may appear and adduce evidence.

810. Court may grant exemption from requirements of disclosure order

810. (1) The court may, in making a disclosure order, include an exemption for any of the following persons or interests from all or part of the requirements of a disclosure order:

• (a) any person, group or class of persons;

• (b) any interest or class of interest in shares or debentures;

• (c) any shares or group or class of shares;

• (d) any debentures or group or class of debentures.

• (2) The court may grant such an exemption only if it considers that—

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

• (b) the financial interest of the applicant for the disclosure order would not be prejudiced by the grant of the exemption.

811. Other powers of court in relation to disclosure orders

811. (1) The court may, on cause shown, discharge or vary a disclosure order.

• (2) A disclosure order may specify a person, group or class of persons to which the order applies.

• (3) Where the court makes a disclosure order, it may impose, for a specified period of time, such conditions or restrictions as it thinks fit on the rights or obligations attaching to the shares or debentures that are the subject of the order.

• (4) Any person whose interests are affected by any conditions or restrictions imposed on shares or debentures under subsection (3) may apply to the court for relief from all or any of those conditions or restrictions, and the court may, if it considers it just and equitable to do so, grant such relief, in whole or in part, and on such terms and conditions (if any) as it sees fit.

812. Notice of disclosure order

812. (1) The applicant for a disclosure order shall ensure that a notice in the prescribed form of the making of the disclosure order is sent, with a copy of the order, to the following:

• (a) the company (at its registered office) whose shares or debentures are the subject of the order;

• (b) the Registrar;

• (c) the registered holder of any of the shares or debentures that are the subject of the order where it appears to the court that that person—

• (i) is not resident in the State at the date of the making of the order, and

• (ii) should be notified;

and

• (d) any other person as the court sees fit.

• (2) The notice shall be sent—

• (a) by registered post, and

• (b) within 7 days after the date of the making of the order.

• (3) The applicant shall ensure that notice of the making of the disclosure order is published in Iris Oifigiúil within 7 days after the date of the making of the order.

• (4) For the purposes of subsection (1)(c)—

• (a) the address of a registered holder of shares or debentures who is not resident in the State shall be deemed to be the address of that holder that was last delivered to the Registrar or otherwise published, as the case may be, in accordance with this Act before the date of making the order, or

• (b) if no address of the non-resident registered holder has ever been duly delivered to the Registrar or otherwise so published, the requirements of subsection (1)(c) are complied with by sending the notice and copy of the order to the Registrar.

813. Information disclosed under order

813. (1) A person who is the subject of a disclosure order shall provide the information in a written notice.

• (2) The notice shall identify the person providing the information and give that person’s current address, and that person does not comply with the disclosure order if the requirement with respect to the person’s identity and current address is not met.

• (3) Where information is given to the court in compliance with a disclosure order, a prescribed officer of the court shall ensure that the information is provided to the applicant and the company unless the court directs otherwise (which may include a direction that only part of the information shall be provided).

• (4) In making a direction under subsection (3), the court shall have regard to whether the requirements of section 812 have been met.

814. Court may impose restrictions on publication of information provided

814. Where any information is provided to the applicant or the company under section 813(3), the court may impose such restrictions as it sees fit as to the publication of the information by the person to whom it has been provided.

815. Right or interest in shares or debentures unenforceable by person in default

815. (1) A person who is the subject of a disclosure order shall not be entitled to enforce any right or interest of any kind whatsoever in respect of any shares in or debentures of the company concerned held by that person if that person—

• (a) fails to comply with the order within the period specified in the order, or

• (b) in purported compliance with the order makes a statement to the court that is false knowing it to be false or being reckless as to whether it is false.

• (2) In subsection (1), “enforce” means enforce by action or legal proceeding, whether directly or indirectly.

816. Court may grant relief from restriction on enforceability of right or interest in shares or debentures

816. (1) Subject to subsections (2) and (5), where any right or interest is restricted under section 815, the court, on the application of a person specified in subsection (3), may grant relief from that restriction.

• (2) The court may grant relief if it is satisfied that—

• (a) the default was accidental or due to inadvertence or some other sufficient cause, or

• (b) on other grounds it is just and equitable to do so.

• (3) The court may grant relief on the application of—

• (a) the person in default, or

• (b) any other person affected by the restriction.

• (4) The court may grant relief—

• (a) generally,

• (b) in relation to a particular right or interest, or

• (c) subject to such terms and conditions as it sees fit.

• (5) The court may not grant relief on the application of the person in default if it appears that the default has arisen as a result of a deliberate act or omission on the part of that person.

817. Dealing by agent in shares or debentures subject to disclosure order

817. (1) This section applies where a person (the “principal”) authorises another person (the “agent”) to acquire or dispose of, on the principal’s behalf, interests in shares (the “shares”) comprised in the share capital of a company, or in debentures (the “debentures”) of the company, in respect of which a disclosure order is made.

• (2) For the duration of the disclosure order, the principal shall ensure that the agent notifies the principal immediately of acquisitions or disposals of the shares or debentures effected by the agent that will or may give rise to any obligation under the order on the part of the principal to provide information in respect of the principal’s interest in the shares or debentures.

CHAPTER 3 Restrictions on directors of insolvent companies

818. Interpretation and application (Chapter 3)

818. (1) In this Chapter—

“company”, in the context of a provision that imposes a restriction on a company by reference to the fact of its having a restricted person (within the meaning of section 826) or otherwise makes provision in consequence of that fact, means any company referred to in section 819(6);

“director of an insolvent company” means a person who was a director or shadow director of an insolvent company at the date of, or within 12 months before, the commencement of its winding up;

“insolvent company” means a company that is unable to pay its debts;

“restricted person” means a person who is subject to a restriction under a declaration made under section 819(1) that is in force.

• (2) For the purposes of the definition of “insolvent company” in subsection (1), a company is unable to pay its debts if—

• (a) at the date of the commencement of its winding up it is proved to the court that it is unable to pay its debts (within the meaning of section 570), or

• (b) at any time during the course of its winding up the liquidator certifies, or it is proved to the court, that it is unable to pay its debts (within the meaning of section 570).

• (3) For the purpose of a restriction imposed pursuant to this Part on a person’s acting as a director of a company, that restriction shall, in the case of a person who continues in office as a director of a company on the restriction taking effect (and the requirements set out in section 819(3) are not met in respect of the company), be deemed, without proof of anything more, to have been contravened.

• (4) This Chapter shall not apply to a company that commenced to be wound up before 1 August 1991.

819. Declaration by court restricting director of insolvent company in being appointed or acting as director etc.

819. F605[(1) On the application of a person referred to in section 820(1) and subject to subsection (2), the court shall declare that a person who was a director of—

• (a) an insolvent company,

• (b) an insolvent company who failed to convene a general meeting of shareholders for the purpose of nominating a named liquidator,

• (c) an insolvent company at such a general meeting who fails to table a notice to nominate such liquidator, or

• (d) an insolvent company who has failed to provide the required notice to employees of the company in the winding up of the company,

shall not, for a period of 5 years, be appointed or act in any way, directly or indirectly, as a director or secretary of a company, or be concerned in or take part in the formation or promotion of a company, unless the company meets the requirements set out in subsection (3).]

• (2) The court shall make a declaration under subsection (1) unless it is satisfied that—

• (a) the person concerned has acted honestly and responsibly in relation to the conduct of the affairs of the company in question, whether before or after it became an insolvent company,

• (b) he or she has, when requested to do so by the liquidator of the insolvent company, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company, and

• (c) there is no other reason why it would be just and equitable that he or she should be subject to the restrictions imposed by an order under subsection (1).

• (3) The requirements referred to in subsection (1) are—

• (a) the company shall have an allotted share capital of nominal value not less than—

• (i) €500,000 in the case of a public limited company (other than an investment company) or a public unlimited company, or

• (ii) €100,000 in the case of any other company,

• (b) each allotted share shall be paid up to an aggregate amount not less than the amount referred to in paragraph (a), including the whole of any premium on that share, and

• (c) each allotted share and the whole of any premium on each allotted share shall be paid for in cash.

• (4) In the application of subsection (3) to a company limited by guarantee, paragraphs (a) to (c) of it shall be disregarded and, instead, that subsection shall be read as if it set out both of the following requirements:

• (a) that the company’s memorandum of association specifies that the amount of the contribution on the part of the member of it, or at least one member of it, being the contribution undertaken to be made by the member as mentioned in section 1176(2)(d), is not less than €100,000;

• (b) that the member whose foregoing contribution is to be not less than that amount is an individual, as distinct from a body corporate.

• (5) In the application of subsection (3) to an investment company, paragraphs (a) to (c) of it shall be disregarded and, instead, that subsection shall be read as if it set out both of the following requirements—

• (a) that the value of the issued share capital of the company is not less than €100,000,

• (b) that an amount of not less than €100,000 in cash has been paid in consideration for the allotment of shares in the company.

• (6) Where subsection (1) refers to being appointed or acting as a director or secretary of a company, or taking part in the formation or promotion of a company, “company” means any of the following:

• (a) a private company limited by shares;

• (b) a designated activity company;

• (c) a public limited company;

• (d) a company limited by guarantee;

• (e) an unlimited company;

• (f) an unregistered company.

• F606[(7) A prescribed officer of the court shall ensure that the prescribed particulars of a declaration under this section are provided to the Registrar and the Authority in the prescribed form and manner (if any) within 28 days after the perfection of the declaration made by the court under subsection (1).]

820. Application for declaration of restriction

820. (1) An application for a declaration under section 819(1) may be made by—

• (a) the F607[Authority],

• (b) the liquidator of the insolvent company, or

• (c) a receiver of the property of the company.

• (2) The court may order that the person who is the subject of the declaration shall pay—

• (a) the costs of the application, and

• (b) the whole (or so much of them as the court specifies) of the costs and expenses incurred by the applicant—

• (i) in investigating the matters that are the subject of the application, and

• (ii) in so far as they do not fall within paragraph (a), in collecting evidence in respect of those matters,

including so much of the remuneration and expenses of the applicant as are attributable to such investigation and collection.

821. Liquidator shall inform court of jeopardy to other company or its creditors

821. (1) This section applies if the liquidator of an insolvent company is of the opinion that—

• (a) a restricted person is appointed or is acting in any way, whether directly or indirectly, as a director of, or is concerned or taking part in the formation or promotion of, another company, and

• (b) the interests of that other company or its creditors may be jeopardised by the matters referred to in paragraph (a).

• (2) In any case to which this section applies—

• (a) the liquidator shall inform the court of his or her opinion as soon as practicable, and

• (b) the court, on being so informed by the liquidator, shall make whatever order it sees fit.

• (3) A liquidator who, without reasonable excuse, fails to comply with subsection (2)(a) shall be guilty of a category 3 offence.

• (4) In this section “company” means any company referred to in section 819(6).

822. Court may grant restricted person relief from restrictions

822. (1) On the application of a restricted person, the court may, if it deems it just and equitable to do so, grant that person relief, either in whole or in part, from—

• (a) any restriction under a declaration made under section 819(1), or

• (b) an order made under section 821(2)(b).

• (2) Such relief may, if the court considers it appropriate, be granted on such terms and conditions as it sees fit.

• (3) A person who intends applying for relief under subsection (1) shall give not less than 14 days’ notice in writing of his or her intention to apply to—

• (a) the F608[Authority], and

• (b) the liquidator of the company the insolvency of which gave rise to the application for the declaration made in respect of him or her under section 819(1).

• (4) On receipt of a notice under subsection (3), the liquidator shall as soon as practicable notify such creditors and contributories of the company as have been notified to the liquidator or become known to the liquidator.

• (5) On the hearing of an application under this section, the F608[Authority], the liquidator, or any creditor or contributory of the company may appear and give evidence.

• (6) A liquidator who fails to comply with subsection (4) shall be guilty of a category 3 offence.

823. Register of restricted persons

823. (1) The Registrar shall, subject to the provisions of this section, keep a register of the particulars notified to him or her under section 819(7).

• (2) Where the court grants partial relief to a restricted person under section 822(1)—

• (a) a prescribed officer of the court shall ensure that the prescribed particulars of the relief are provided to the F609[Registrar and the Authority within 28 days of the perfection of the order granting the relief], and

• (b) the Registrar shall as soon as practicable enter those particulars on the register.

• (3) Where the court grants full relief to a restricted person under section 822(1)—

• (a) a prescribed officer of the court shall ensure that the F609[the Registrar and the Authority are notified within 28 days after the perfection of the order granting the relief], and

• (b) the Registrar shall as soon as practicable remove the particulars of that person from the register.

• (4) The Registrar shall remove from the register any particulars of a restricted person on the expiry of 5 years after the date of the declaration made in respect of that person under section 819(1).

• (5) Nothing in this section shall prevent the Registrar from keeping the register required under this section as part of any other system of classification, whether under F610[section 895] or otherwise.

824. Application of this Chapter to receivers

824. (1) Where a receiver of the property of a company is appointed, the provisions of this Chapter shall, with the modification referred to in subsection (2) and any other necessary modifications, apply as if references in this Chapter to the liquidator and to winding up were references to the receiver and to receivership.

• (2) The modification mentioned in subsection (1) is that in the definition of “director of an insolvent company” in section 818(1) the words “director or shadow director of an insolvent company at the date of, or within 12 months before, the appointment of a receiver to the property of the company” shall be substituted for the words “director or shadow director of an insolvent company at the date of, or within 12 months before, the date of the commencement of its winding up”.

825. Restricted person shall give notice to company before accepting appointment or acting as director or secretary

825. (1) A restricted person shall not be appointed or act in any way, whether directly or indirectly, as a director or secretary of a company unless he or she has given the company notice in writing in accordance with subsection (2) that he or she is a restricted person.

• (2) The restricted person shall send the notice to the registered office of the company within the period of 14 days immediately before the date on which the restricted person accepts the appointment or acts in any way referred to in subsection (1).

• (3) A person who accepts the appointment or acts in any way referred to in subsection (1) without having complied with that subsection shall be guilty of a category 3 offence.

• (4) In this section “company” means any company referred to in section 819(6).

826. “Company that has a restricted person” — meaning of that expression in sections 827 to 834

826. In sections 827 to 834 “company that has a restricted person” means a company—

• (a) in relation to which a restricted person is appointed or acts in any way, whether directly or indirectly, as a director or secretary, or

• (b) in the promotion or formation of which a restricted person is concerned or takes part.

827. Disapplication of certain provisions to company having a restricted person

827. (1) Subject to subsection (2), the Summary Approval Procedure shall not apply to a company that has a restricted person.

• (2) Subsection (1) does not affect the availability of that procedure so far as it relates to a members’ voluntary winding up.

• (3) Without prejudice to section 247, sections 240 and 245 shall not apply to a company that has a restricted person.

828. Company having a restricted person may not acquire certain non-cash assets from subscribers, etc., unless particular conditions satisfied

828. (1) A company that has a restricted person shall not, unless the conditions specified in subsection (3) have been satisfied, enter into an agreement with a relevant person for the transfer by him or her of one or more non-cash assets to the company or another for a consideration to be given by the company equal in value at the time of the agreement to at least one-tenth of the nominal value of the company’s share capital issued at that time.

• (2) In this section—

“non-cash asset” means any property or interest in property other than cash (including foreign currency);

“relevant person”, in relation to a company, means any subscriber to the constitution, any director or any person involved in the promotion or formation of the company.

• (3) The conditions referred to in subsection (1) are that—

• (a) the consideration to be received by the company (that is to say, the asset to be transferred to the company or the advantage to the company of its transfer to another person) and any consideration other than cash to be given by the company have been valued under the following provisions of this section,

• (b) a report with respect to the consideration to be so received and given has been made to the company in accordance with those provisions during the 6 months immediately preceding the date of the agreement,

• (c) the terms of the agreement have been approved by an ordinary resolution of the company, and

• (d) not later than the giving of the notice of the meeting at which the resolution is proposed, copies of the resolution and report have been circulated to the members of the company entitled to receive that notice and, if the relevant person is not then such a member, to that person.

• (4) Subsection (1) shall not apply to the following agreements for the transfer of an asset for a consideration to be given by the company, that is to say—

• (a) where it is part of the ordinary business of the company to acquire or arrange for other persons to acquire assets of a particular description, an agreement entered into by the company in the ordinary course of its business for the transfer of an asset of that description to it or such a person, as the case may be, or

• (b) an agreement entered into by the company under the supervision of the court or an officer authorised by the court for the purpose, for the transfer of an asset to the company or to another.

• (5) Subject to subsection (6), the valuation and report required by subsection (3) shall be made by an independent person, that is to say, a person qualified at the time of the report to be appointed or to continue to be statutory auditor of the company.

• (6) Where it appears to the independent person referred to in subsection (5) to be reasonable for the valuation of the consideration, or a valuation of part of the consideration, to be made, or to accept such a valuation made, by any person who—

• (a) appears to that independent person to have the requisite knowledge and experience to value the consideration or that part of the consideration, and

• (b) is not—

• (i) an officer or employee of the company or any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or

• (ii) a partner or employee of an officer or employee referred to in subparagraph (i);

that independent person may arrange for or accept such a valuation, together with a report which will enable the independent person to make his or her own report under subsection (3) and provide a note in accordance with subsection (7).

• (7) The report of the independent person under subsection (3) shall—

• (a) state the consideration to be received by the company, describing the asset in question, specifying the amount to be received in cash, and the consideration to be given by the company, specifying the amount to be given in cash,

• (b) state the method and date of valuation,

• (c) contain a note by the independent person, or be accompanied by such a note—

• (i) in the case of a valuation made by another person, that it appeared to the independent person reasonable to arrange for it to be so made, or to accept a valuation so made,

• (ii) whoever made the valuation, that the method of valuation was reasonable in all the circumstances, and

• (iii) that it appears to the independent person that there has been no material change in the value of the consideration in question since the valuation,

and

• (d) contain a note by the independent person, or be accompanied by such a note, that, on the basis of the valuation, the value of the consideration to be received by the company is not less than the value of the consideration to be given by it.

• (8) Where any consideration is valued under this section by a person other than the independent person, the latter’s report under subsection (3) shall state that fact and shall also—

• (a) state the former’s name and what knowledge and experience that other person has to carry out the valuation, and

• (b) describe so much of the consideration as was valued by that other person, the method used to value it and state the date of valuation.

• (9) If a company enters into an agreement with any relevant person in contravention of subsection (1) and either the relevant person has not received a report under this section or there has been some other contravention of this section which he or she knew or ought to have known amounted to a contravention, then, subject to subsection (10)—

• (a) the company shall be entitled to recover from the relevant person any consideration given by the company under the agreement or an amount equivalent to its value at the time of the agreement, and

• (b) the agreement, so far as not carried out, shall be void.

• (10) Where a company enters into an agreement in contravention of subsection (1) and that agreement is or includes an agreement for the allotment of shares in that company—

• (a) subsection (9) shall not apply to the agreement in so far as it is an agreement for the allotment of shares, and

• (b) the following provisions shall apply in relation to the shares as if they had been allotted in contravention of section 1028.

• (11) The provisions referred to in subsection (10)(b) are as follows:

• (a) the allottee of the shares concerned shall be liable to pay the company an amount equal to the nominal value of the shares, together with the whole of any premium or, if the case so requires, such proportion of that amount as is treated as paid up by the consideration, and shall be liable to pay interest at the appropriate rate on the amount payable under this paragraph; and

• (b) where any person becomes a holder of any shares in respect of which—

• (i) there has been a contravention of this section, and

• (ii) by virtue of that contravention, another is liable to pay any amount under this subsection;

the first-mentioned person in this paragraph also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of the contravention or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after the contravention and was not so liable.

829. Supplemental provisions in relation to section 828

829. (1) Any person carrying out a valuation or making a report under section 828 shall be entitled to require from the officers of the company such information and explanation as the person thinks necessary to enable him or her to carry out the valuation or make the report and provide the note required by that section.

• (2) A company which has passed a resolution under section 828 with respect to the transfer of an asset shall, within 15 days after the date of passing of the resolution, deliver to the Registrar a copy of the resolution together with the report required by that section and, if the company fails to do so, the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (3) Any reference in section 828 or this section to consideration given for the transfer of an asset includes a reference to consideration given partly for its transfer but—

• (a) the value of any consideration partly so given shall be taken to be the proportion of that consideration properly attributable to its transfer,

• (b) the independent person shall carry out or arrange for such valuations of anything else as will enable him or her to determine that proportion, and

• (c) his or her report under section 828 shall state what valuation has been made by virtue of paragraph (b) and also the reason for and method and date of any such valuation and any other matters which may be relevant to that determination.

• (4) References in section 828 to a holder, in relation to any shares in a company, include references to any person who has an unconditional right to be included in the company’s register of members in respect of those shares or to have an instrument of transfer of the shares executed in his or her favour.

830. Relief from liability under section 828

830. (1) Where any person is liable to a company under section 828 in relation to payment in respect of any shares in the company, the person so liable may make an application to the court under this section to be exempted in whole or in part from that liability.

• (2) The court may, on an application under this section, exempt the applicant from that liability if and to the extent that it appears to the court to be just and equitable to do so.

831. Offence for contravention of section 828

831. Where a company contravenes section 828, the company and any officer of it who is in default shall be guilty of a category 3 offence.

832. Allotment of share not fully paid up by company that has a restricted person

832. (1) This section applies if a company that has a restricted person allots a share that is not fully paid up as required by section 819(3)(b).

• (2) Subject to subsection (3), in any case to which this section applies, the share shall be treated as if its nominal value together with the whole of any premium had been received by the company.

• (3) The allottee of the share shall be liable to pay the company—

• (a) the full amount that should have been received by the company as required by section 819(3)(b) less—

• (i) the value of any consideration actually applied in payment up (to any extent) of the share, and

• (ii) the whole of any premium on the share,

and

• (b) interest at the appropriate rate on the amount payable under paragraph (a).

• (4) This section does not apply in relation to—

• (a) a bonus share that is not fully paid up as required by section 819(3)(b) unless the allottee knew or ought to have known that the share was so allotted, or

• (b) a share allotted under an employees’ share scheme.

• (5) Where any person becomes a holder of any shares in respect of which—

• (a) there has been a failure to comply with section 819(3)(b), and

• (b) by virtue of that failure to comply, another is liable to pay any amount under this section,

the first-mentioned person in this subsection also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of that non-compliance or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after that non-compliance and was not so liable.

• (6) In this section—

• (a) “employees’ share scheme” has the meaning given to it by section 64(1),

• (b) references to a holder, in relation to any shares in a company, include references to any person who has an unconditional right to be included in the company’s register of members in respect of those shares or to have an instrument of transfer of the shares executed in his or her favour.

833. Allotment of share not fully paid for in cash by company that has a restricted person

833. (1) This section applies if a company that has a restricted person allots a share that is not fully paid for in cash as required by section 819(3)(c).

• (2) In any case to which this section applies, the allottee of the share shall be liable to pay the company in cash—

• (a) an amount equal to the nominal value of the share, together with the whole of any premium, and

• (b) interest at the appropriate rate on the amount payable under paragraph (a).

• (3) Where any person becomes a holder of any shares in respect of which—

• (a) there has been a failure to comply with section 819(3)(c), and

• (b) by virtue of that failure to comply, another is liable to pay any amount under this section,

the first-mentioned person in this subsection also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of that non-compliance or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after that non-compliance and was not so liable.

• (4) In this section references to a holder, in relation to any shares in a company, include references to any person who has an unconditional right to be included in the company’s register of members in respect of those shares or to have an instrument of transfer of the shares executed in his or her favour.

834. Relief for company in respect of prohibited transaction

834. (1) Subject to subsection (2), the court may, if it considers it just and equitable, grant relief to—

• (a) any company that has a restricted person that by virtue of section 827 has contravened any provision of this Act, or

• (b) any person adversely affected by that contravention.

• (2) The court shall not grant relief to a company in respect of a contravention if the restricted person concerned complied with section 825.

• (3) The court may grant such relief, under this section, as it thinks fit, including an exemption from the provision in question, and on such terms and conditions as it thinks fit.

835. Power to vary amounts specified in section 819(3)

835. (1) Subject to subsection (4), the Minister may from time to time, by order, increase any amount specified in section 819(3).

• (2) An increase by order made under subsection (1) shall not operate to effect any increase in relation to a declaration under section 819(1) made before the commencement of the order.

• (3) The requirements set out in section 819(3) that shall apply in respect of a restricted person by virtue of such a declaration made before that commencement shall be those that applied at the time of the making of the order.

• (4) An order under subsection (1) may only be made, at a particular time (the “relevant time”), if it appears to the Minister the changes in the value of money generally in the State that have occurred during the period beginning—

• (a) on this Act’s passing, or

• (b) if the powers under that subsection have previously been exercised, immediately after their last previous exercise,

and ending at the relevant time, warrant the exercise of powers under that subsection so as to secure the continued effectiveness of section 819 as regards the amounts specified for the time being in subsection (3) of it.

836. Personal liability for debts of company subject to restriction

836. (1) This section applies where a company—

• (a) has received a notice under section 825,

• (b) after receipt of the notice, carries on business without the requirements of section 819(3) being fulfilled within a reasonable period of receipt,

• (c) is subsequently wound up, and

• (d) at the time of commencement of the winding up is unable to pay its debts (taking into account its contingent and prospective liabilities).

• (2) On the application of the liquidator or any creditor or contributory of the company, the court may declare that a person shall be personally liable, without any limitation of liability, for all or part of the debts or other liabilities of the company as the court directs if that person—

• (a) was an officer of the company while it carried on business without the requirements of section 819(3) being fulfilled within a reasonable period of receipt of the notice referred to in subsection (1)(a), and

• (b) knew or ought to have known that the company had received the notice.

• (3) In any proceedings against a person under this section, the court may, if, having regard to the circumstances of the case, it considers that it is just and equitable to do so, grant relief—

• (a) in whole or in part from the liability of that person under this section, and

• (b) subject to such conditions as the court sees fit.

CHAPTER 4 Disqualification generally

837. Interpretation generally (Chapter 4)

837. In this Chapter—

“company” includes every company and every body, whether corporate or unincorporated, that may be wound up under this Act;

“court”, in relation to a disqualification order made by a court of its own motion under section 842(a), (b), (c), (d) or (f), means the High Court or any other court of competent jurisdiction dealing with the person concerned in criminal or civil proceedings before it;

“default order” means an order made against any person under section 797 by virtue of any contravention of or failure to comply with any relevant requirement (whether on that person’s part or on the part of any company);

“officer”, in relation to any company, includes any director, shadow director or secretary of the company;

“relevant requirement” means any provision of this Act (including any provision repealed by this Act) that requires or required any return, account or other document to be filed with, delivered or sent to, or notice of any matter to be given, to the Registrar.

838. Meaning of “disqualified” and “disqualification order”

838. In this Chapter—

“disqualification order” means an order of the court that a person shall be disqualified;

“disqualified”, in relation to a person, means the person’s being disqualified from being appointed or acting as a director or other officer, statutory auditor, receiver, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:

• (a) a company within the meaning of section 819(6);

• (b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;

• (c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014.

839. Automatic disqualification on conviction of certain indictable offences

839. (1) A person is automatically disqualified if that person is convicted on indictment of—

• (a) any offence under this Act, or any other enactment as may be prescribed, in relation to a company, or

• (b) any offence involving fraud or dishonesty.

• (2) A person disqualified under subsection (1) is disqualified for a period of 5 years after the date of conviction or for such other (shorter or longer) period as the court, on the application of the prosecutor or the defendant and having regard to all the circumstances of the case, may order.

• (3) A person disqualified under subsection (1) is deemed, for the purposes of this Act, to be subject to a disqualification order for the period of his or her disqualification.

• (4) Subsection (1) is in addition to the other provisions of this Act providing that, upon conviction of a person for a particular offence, the person is deemed to be subject to a disqualification order.

840. Default under section 149(8) concerning fact of director’s becoming disqualified under law of another state

840. (1) In this section—

“relevant change amongst its directors”, in relation to a company, means the change referred to in section 150(1), namely the case of a director’s becoming disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking;

“relevant director” means the director of the company who has become so disqualified under the law of another state;

“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 150(1).

• (2) If—

• (a) a company fails to comply with the requirement under section 149(8) to send to the Registrar the notification of the relevant change amongst its directors and that failure is by reason of a default of the relevant director, or

• (b) in purported compliance with that requirement, a company sends to the Registrar the notification of the relevant change amongst its directors and, by reason of a default of the relevant director, the statement of particulars of foreign disqualification is false or misleading in a material respect,

the relevant director shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).

• (3) The period of disqualification—

• (a) commences—

• (i) in the case of a failure referred to in subsection (2)(a), on the expiry of 14 days after the date on which the relevant director has become disqualified, as mentioned in the definition of “relevant change amongst its directors” in subsection (1), under the law of another state, or

• (ii) in the case, as referred to in subsection (2)(b), of the sending of a statement of particulars of foreign disqualification to the Registrar that is false or misleading in a material respect, when that statement is delivered to the Registrar,

and

• (b) continues only for so much of—

• (i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or

• (ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.

• (4) Without limiting the circumstances in which such a default can arise, a failure referred to in—

• (a) subsection (2)(a) occurs by reason of a default of the relevant director if the latter has failed in his or her duty under section 150(3) to give the necessary information to the company so as to enable it to comply with the requirement under section 149(8) to send to the Registrar the notification of the relevant change amongst its directors, and

• (b) subsection (2)(b) occurs by reason of a default of the relevant director if the latter, in purported compliance with the foregoing duty, has given information to the company, for the purposes of the statement of particulars of foreign disqualification, that is false or misleading in a material respect.

• (5) This section shall also apply to the additional case that, by virtue of subsection (9) of section 150, subsection (1) of section 150 applies to.

• (6) For the purposes of the application of this section to the foregoing additional case, this section shall have effect subject to the following modifications:

• (a) the following definition shall be substituted for the definition of “relevant change amongst its directors” in subsection (1):

“ ‘relevant change amongst its directors’, in relation to a company, means the change referred to in subsection (1) of section 150 (as that subsection applies by virtue of subsection (9) of that section), namely the case of a person appointed a director of a company before the commencement of that section and who, subsequent to his or her appointment but before that commencement, becomes disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as director or secretary of a body corporate or an undertaking;”;

• (b) in subsection (2), after “section 149(8)” there shall be inserted “(as that provision applies by virtue of section 150(10))”;

• (c) in subsection (3)(a), there shall be substituted the following for subparagraph (i):

• “(i) in the case of a failure referred to in subsection (2)(a), on the expiry of 3 months after the commencement of section 150; or”;

and

• (d) in subsection (3)(b), there shall be substituted the following for subparagraph (i):

• “(i) the period of foreign disqualification as remains unexpired as at the date that is specified in paragraph (a) to be the date on which the period of disqualification commences;”.

841. Default under section 23 or 150(2) by director disqualified under law of another state

841. (1) This section applies to a person if the person—

• (a) is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and

• (b) one of the following occurs:

• (i) the person fails to comply with section 23 or 150(2);

• (ii) in purported compliance with section 23, the person permits the statement of first directors and secretary to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect; or

• (iii) in purported compliance with section 150(2), the person permits the notification of change of director to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect.

• (2) A person to whom this section applies shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).

• (3) The period of disqualification—

• (a) commences—

• (i) in the case of a default referred to in subsection (1)(b)(i), when the statement of first directors and secretary or notification of change of director, as the case may be, is delivered to the Registrar, or

• (ii) in the case of a default referred to in subsection (1)(b)(ii) or (iii), when the statement of first directors and secretary or notification of change of director, as the case may be, accompanied by the statement of particulars of foreign disqualification is delivered to the Registrar,

and

• (b) continues only for so much of—

• (i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or

• (ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.

• (4) In this section—

“notification of change of director” means the notification of a change in director that is required to be sent under section 149(8);

“statement of first directors and secretary” means the statement required to be delivered under section 21(1)(a);

“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 23 or 150(2).

842. Court may make disqualification order

842. On the application of a person specified in section 844 or of its own motion, the court may make a disqualification order in respect of a person for such period as it sees fit if satisfied—

• (a) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any fraud in relation to the company, its members or creditors,

• (b) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any breach of his or her duty as such promoter, officer, auditor, receiver, liquidator or examiner,

• (c) that a declaration has been granted under section 610 in respect of the person,

• (d) that the conduct of the person as promoter, officer, statutory auditor, receiver, liquidator or examiner of a company makes him or her unfit to be concerned in the management of a company,

• (e) that, as disclosed in a report of inspectors appointed by the court or the F611[Authority] under this Act, the conduct of the person makes him or her unfit to be concerned in the management of a company,

• (f) that the person has been persistently in default in relation to the relevant requirements,

• (g) that the person has been guilty of 2 or more offences under section 286,

• (h) that the person was a director of a company when a notice was sent to the company under section 727 and the company, following the taking of the other steps under Chapter 1 of Part 12 consequent on the sending of the notice, was struck off the register under section 733, F612[…]

• (i) that—

• (i) the person is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and

• (ii) it would have been proper to make a disqualification order against the person otherwise under this section if his or her conduct or the circumstances otherwise affecting him or her that gave rise to the foreign disqualification had occurred or arisen F613[in the State, or]

• F614[(j) that the person has contravened section 4 or 5 of the Competition Act 2002 or Article 101 or 102 of the Treaty on the Functioning of the European Union.]

843. Provisions relating to particular grounds for disqualification

843. (1) In relation to section 842(f), the fact that a person has been persistently in default in relation to the relevant requirements may (without prejudice to its proof in any other manner) be conclusively proved by showing that, in the 5 years ending with the date of the application, the person has been found guilty (whether or not on the same occasion) of 3 or more defaults in relation to those requirements.

• (2) For the purposes of subsection (1), a person shall be treated as having been found guilty of a default in relation to a relevant requirement if he or she is convicted of any offence consisting of a contravention of a relevant requirement or a default order is made against him or her.

• (3) The court shall not make a disqualification order under section 842(h) if the person concerned shows that—

• (a) the company in question had no liabilities (whether actual, contingent or prospective) when it was struck off the register, or

• (b) in a case where the company did have such liabilities when it was struck off the register, those liabilities were discharged before the date of the making of the application for the disqualification order.

• (4) The court may make a disqualification order under section 842(i) notwithstanding that under section 840(2) or 841(2) the person concerned is deemed for the purposes of this Act to be subject to a disqualification order.

• (5) A disqualification order under section 842(i) shall express the period of disqualification to begin on the expiry of the disqualification period determined in accordance with section 840(3)(b) or 841(3)(b) or such shorter disqualification period following the grant of an application for relief under section 847.

844. Persons who may apply for disqualification order under section 842

844. (1) The F615[Authority] may make an application under any of section 842(a) to (i).

• (2) The Director of Public Prosecutions may make an application under any of section 842(a) to (g).

• (3) The Registrar may make an application under section 842(f).

• (4) An application under any of section 842(a) to (d) may be made by any member, contributory, officer, employee, receiver, liquidator, examiner or creditor of any company in relation to which the person who is the subject of the application—

• (a) has been or is acting or is proposing to or is being proposed to act as officer, statutory auditor, receiver, liquidator or examiner, or

• (b) has been or is concerned or taking part in, or is proposing to be concerned or take part in, the promotion, formation or management.

• F616[(4A) An application under section 842(j) may be made by the competent authority (within the meaning of the Competition Act 2002).]

• (5) The court may require a person who makes an application under section 842 to provide security for some or all of the costs of the application.

845. Miscellaneous provisions relating to disqualification by court order

845. (1) Where it is intended to make an application under section 842 in respect of any person, the applicant shall give not less than 10 days’ notice of his or her intention to that person.

• (2) A disqualification order may be made on grounds that are or include matters other than criminal convictions notwithstanding that the person who is the subject of the order may be made criminally liable in respect of those matters.

• (3) On an application for a disqualification order, the court may as an alternative, if it considers that disqualification is not justified, make a declaration under section 819.

846. Costs and expenses of application

846. The court, on hearing an application under section 842, may order that the person disqualified or against whom a declaration under section 819 is made as a result of the application (by virtue of section 845(3)) shall bear—

• (a) the costs of the application, and

• (b) in the case of an F617[application by the Authority], the Director of Public Prosecutions, a liquidator, a receiver or an examiner, the whole (or so much of them as the court specifies) of the costs and expenses that are incurred by the applicant—

• (i) in investigating the matters that are the subject of the application, and

• (ii) in so far as they do not fall within paragraph (a), in collecting evidence in respect of those matters,

including so much of the remuneration and expenses of the applicant as are attributable to such investigation and collection.

847. Court may grant relief to person subject to disqualification order

847. (1) On the application by a person who is subject to a disqualification order, the court may, if it considers that it is just and equitable, grant relief from the disqualification—

• (a) in whole or in part, and

• (b) on such terms and conditions as it sees fit.

• (2) Without prejudice to subsection (3), in the case of an application for relief from a disqualification order made under section 842, the application shall be served on—

• (a) the applicant for the disqualification order, and

• (b) the F618[Authority], if different from the applicant for the disqualification order.

• (3) A person who intends applying for relief under subsection (1) shall give not less than 14 days’ notice in writing of his or her intention to apply to—

• (a) the applicant for the disqualification order, and

• (b) the F618[Authority], if different from the applicant for the disqualification order.

• (4) If the applicant for the disqualification order was the liquidator of a company, the insolvency of which gave rise to the application for the disqualification order, then, on receipt of a notice under subsection (3), the liquidator shall as soon as practicable notify such creditors and contributories of the company as have been notified to the liquidator or become known to the liquidator.

• (5) On the hearing of an application under this section, the F618[Authority] and the applicant for the disqualification order and, where the latter is a liquidator referred to in subsection (4), any creditor or contributory of the company concerned, may appear and give evidence.

• (6) A liquidator who fails to comply with subsection (4) shall be guilty of a category 3 offence.

848. Disqualification of restricted person following subsequent winding up

848. (1) This section applies where—

• (a) a restricted person is or becomes a director of a company that commences to be wound up within the period of 5 years after the date of commencement of the winding up of the company whose insolvency caused that person to be a restricted person, and

• (b) it appears to the liquidator of the first-mentioned company that that company is, at the date of commencement of its winding up or at any time during the course of its winding up, unable to pay its debts.

• (2) In any case to which this section applies, the liquidator shall report the matters set out in subsection (1) to the court, and the court, if it considers that it is proper to do so, may make a disqualification order against the restricted person for such period as it thinks fit.

• (3) If the liquidator fails to comply with subsection (2), he or she shall be guilty of a category 3 offence.

• (4) In this section—

• (a) “restricted person” has the same meaning as it has in Chapter 3;

• (b) references to a company (other than the company whose insolvency caused the person concerned to be a restricted person) are references to any company within the meaning of section 819(6).

CHAPTER 5 Disqualification and restriction undertakings

849. Definitions (Chapter 5)

849. In this Chapter—

“disqualification” means being disqualified from being appointed or acting as a director or other officer, receiver, statutory auditor, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:

• (a) any company within the meaning of section 819(6);

• (b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;

• (c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;

“disqualification acceptance document” means the document provided for by regulations under section 854(1) and referred to in paragraph (a)(i) of that provision;

“disqualification order” means an order made under section 842;

“disqualification undertaking”, in relation to a person, means an undertaking by the person, given by the means provided in this Chapter, by which the person submits himself or herself to be subject to disqualification;

“restriction” means being restricted for a period of 5 years from being appointed or acting in any way, directly or indirectly, as a director or secretary of a company (within the meaning of section 819(6)) or being concerned in or taking part in the promotion or formation of a company (within that meaning) unless the company meets the requirements set out in section 819(3);

“restriction acceptance document” means the document provided for by regulations under section 854(1) and referred to in paragraph (a)(ii) of that provision;