Investigations
Companies Act
Production of documents and evidence
526. (1) It shall be the duty of the officers and agents of a company or a related company to which an examiner has been appointed to—
(a) produce to the examiner all books and documents of, or relating to, any such company which are in their custody or power,
(b) attend before the examiner when required by the examiner so to do, and
(c) otherwise give to the examiner all assistance in connection with the examiner’s functions which they are reasonably able to give.
(2) If the examiner considers that a person, other than an officer or agent of any foregoing company, is or may be in possession of any information concerning the company’s affairs, the examiner may require that person to
(a) produce to the examiner any books or documents in his or her custody or power relating to the company,
(b)attend before the examiner, and
(c) otherwise give to the examiner all assistance in connection with the examiner’s functions which that person is reasonably able to give,
and it shall be the duty of that person to comply with the requirement.
(3) If the examiner has reasonable grounds for believing that a director of any foregoing company maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—
(a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement particulars of which have not been disclosed in the financial statements of any company for any financial year as required by this Act, or
(b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which, on the part of that director, constituted misconduct (whether fraudulent or not) towards that company or its members,
the examiner may require the director to produce to the examiner all documents in the director’s possession, or under his or her control, relating to that bank account and it shall be the duty of the director to comply with the requirement.
(4) In subsection (3)—
“bank account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act 1971 from the requirement of holding a licence under section 9 of that Act; “director” means—
(a) any present or past director (including any present or past shadow director); and
(b) any person connected, within the meaning of section 220 , with such a director.
(5) An examiner may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of any such company or other person as is mentioned in subsection (1) or (2) in relation to that company’s affairs and may—
(a) administer an oath accordingly, or
(b) reduce the answers of such person to writing and require him or her to sign them.
(6) If any officer or agent of a foregoing company or other such person—
(a) refuses to produce to the examiner any book or document which it is his or her duty under this section to produce,
(b) refuses to attend before the examiner when requested by the examiner to do so, or
(c) refuses to answer any question which is put to him or her by the examiner with respect to the affairs of the company,
the examiner may provide a certificate under his or her hand to the court stating that such a refusal has occurred.
(7) On such a certificate being provided to it, the court may enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, agent or other person to whom the certificate relates or any statement which may be offered in defence, make any order or direction it thinks fit.
(8) Without prejudice to the generality of subsection (7), the court may, after a hearing under that subsection, make a direction—
(a) to the person concerned to attend or re-attend before the examiner or produce particular books or documents or answer particular questions put to him or her by the examiner, or
(b) that the person concerned need not produce a particular book or document or answer a particular question put to him or her by the examiner.
(9) Section 795 shall apply for the purposes of this section as it applies for the purposes of Part 13 and, accordingly, for the purpose of this section, references in section 795 to Part 13 , or relevant provisions of that Part, shall be read as references to this section.
(10) In this section—
(a) any reference to officers or to agents includes a reference to past, as well as present, officers or agents, as the case may be; and
(b) “agents”, in relation to a company, includes—
(i) the bankers and solicitors of the company; and
(ii) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.
No lien over company’s books, records, etc.
527. (1) Without prejudice to subsections (2) and (3), where the court has appointed an examiner to a company or a company is under the protection of the court, no person shall be entitled as against the examiner to—
(a) withhold possession of—
(i) any deed, instrument, or other document belonging to the company, or
(ii) any accounting records, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade, dealings or business of the company,
or
(b) claim any lien on any document or paper referred to in paragraph (a).
(2) Where a mortgage, charge or pledge has been created by the deposit of any such document or paper with a person, the production of the document or paper to the examiner by the person shall not operate to prejudice the person’s rights under the mortgage, charge or pledge (other than any right to possession of the document or paper).
(3) Where by virtue of this section an examiner has possession of—
(a) any document or papers of a receiver, or
(b) any documents or papers that a receiver is entitled to examine,
the examiner shall, unless the court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.
Hearing regarding irregularities
533. (1) Where, arising out of the presentation to it of the report of the independent expert or otherwise, it appears to the court that there is evidence of a substantial disappearance of property of the company concerned that is not adequately accounted for, or of other serious irregularities in relation to the company’s affairs having occurred, the court shall, as soon as it is practicable, hold a hearing to consider that evidence.
(2) If, before the hearing referred to in subsection (1) is held, the court directs the examiner to do so, the examiner shall prepare a report setting out any matters which the examiner considers will assist the court in considering the evidence concerned on that hearing.
(3) The examiner shall supply a copy of a report prepared by him or her under subsection (2) to the company concerned on the same day as he or she causes the report to be delivered to the office of the court.
(4) The examiner shall also supply a copy of a report prepared by him or her under subsection (2) to each person who is mentioned in the report and any interested party on written application being made to him or her in that behalf.
(5) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied to a person referred to in subsection (4) or an interested party such parts of it as are specified in the direction of the court.
(6) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.
(7) If the company concerned is a company referred to in section 510 (2), (3) or (4), the examiner shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under subsection (2) to the Central Bank, and subsections (5) and (6) shall not apply to such a copy.
(8) The following persons shall be entitled to appear and be heard at a hearing under this section:
(a) the examiner;
(b) if the court decided to hold a hearing under this section because of matters contained in the report of the independent expert, the independent expert;
(c) the company concerned;
(d) any interested party;
(e) any person who is referred to in the report of the independent expert or the report prepared under subsection (2);
(f) if the company concerned is a company referred to in section 510 (2), (3) or (4) — the Central Bank;
(g) irrespective of whether it constitutes any of the foregoing kinds of company — the Director of Corporate Enforcement.
(9) The court may, on a hearing under this section, make such order or orders as it deems fit (including, where appropriate, an order for the trial of any issue relating to the matter concerned).
(10) The court may, if it considers it appropriate to do so, direct that a certified copy of an order under subsection (9) shall be delivered to the Registrar by the examiner or such other person as it may specify.
Power of court to order the return of assets which have been improperly transferred
557. (1) Where, on the application of an examiner of a company that is under the protection of the court it can be shown to the satisfaction of the court that—
(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect; and
(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,
the court may, if it deems it just and equitable to do so, make the following order.
(2) That order of the court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the examiner on such terms or conditions as the court sees fit.
(3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 604 applies.
(4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.
Reporting to Director of Corporate Enforcement of misconduct by examiners
558. (1) Where a disciplinary committee or tribunal (however called) of a prescribed professional body—
(a) finds that a member of that body who is conducting or has conducted an examinership has not maintained appropriate records in relation to that activity; or
(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during the course of conducting an examinership,
the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the Director of Corporate Enforcement forthwith.
(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.