Personal Liability
Companies Act
Power of the court to order return of assets which have been improperly transferred
608. (1) The court has the following power where, on the application of a liquidator, creditor or contributory of a company which is being wound up, 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.
(2) That power of the court is to order, if it deems it just and equitable to do so, any person who appears to have—
(a) the use, control or possession of the property concerned, or
(b) the proceeds of the sale or development of that property,
to deliver it or them, or pay a sum in respect thereof, to the liquidator on such terms or conditions as the court thinks fit.
(3) This section 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.
(5) This section is in addition to, and not in substitution for, any restitutionary or other relief by way of recovery (including the remedy of tracing) that is available to a liquidator or any other person.
Personal liability of officers of company where adequate accounting records not kept
609. (1) Subject to subsection (2), if—
(a) a company that is being wound up and that is unable to pay all of its debts has contravened any of sections 281 to 285 , and
(b) the court considers that such contravention has—
(i) contributed to the company’s inability to pay all of its debts, or
(ii) resulted in substantial uncertainty as to the assets and liabilities of the company, or
(iii) substantially impeded the orderly winding up of the company,
the court, on the application of the liquidator or any creditor or contributory of the company, has the following power.
(2) That power of the court is to declare, if it thinks it proper to do so, that any one or more of the officers and former officers of the company who, with respect to the contravention, is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the court, of the debts and other liabilities of the company.
(3) On the hearing of an application under this section, the person bringing the application may himself or herself give evidence or call witnesses.
(4) Where the court makes a declaration under this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration.
(5) In particular, and without limiting subsection (4), the order providing for a declaration under this section, or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on—
(a) any debt or obligation due from the company to the respondent, or
(b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the company held by or vested in—
(i) the respondent or any company or other person on the respondent’s behalf, or
(ii) any person claiming as assignee from or through the respondent or any company or other person acting on behalf of the first-mentioned person in this subparagraph.
(6) The court may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under subsection (5).
(7) In subsection (5)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable under the declaration, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created; however the expression does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
(8) The court shall not make a declaration under this section in respect of a person if it considers that—
(a) the person took all reasonable steps to secure compliance by the company with sections 281 to 285 , or
(b) the person had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director of the company who has been formally allocated such responsibility, was—
(i) charged with the duty of ensuring that those sections were complied with, and
(ii) in a position to discharge that duty.
(9) This section shall have effect notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made.
(10) In this section “officer”, in relation to a company, includes a person who has been convicted of an offence under section 389 , 392, 393, 406 or 876 concerning accounting records of the company or, as the case may be, a statement made to statutory auditors concerning such records.
Civil liability for fraudulent or reckless trading of company
610. (1) If in the course of the winding up of a company or in the course of proceedings under Part 10 in relation to a company, it appears that—
(a) any person was, while an officer of the company, knowingly a party to the carrying on of any business of the company in a reckless manner, or
(b) any person was knowingly a party to the carrying on of any business of the company with intent to defraud creditors of the company, or creditors of any other person or for any fraudulent purpose,
the court, on the application of the liquidator or examiner of the company, a receiver of property of the company or any creditor or contributory of it, has the following power.
(2) That power of the court is to declare, if it thinks it proper to do so, that the person first-mentioned in paragraph (a) or (b) of subsection (1) shall be personally responsible, without any limitation of liability, for all or any part of the debts or other liabilities of the company as the court may direct.
(3) Without prejudice to the generality of subsection (1)(a), an officer of a company shall be deemed to have been knowingly a party to the carrying on of any business of the company in a reckless manner if—
(a) the person was a party to the carrying on of such business and, having regard to the general knowledge, skill and experience that may reasonably be expected of a person in his or her position, the person ought to have known that his or her actions or those of the company would cause loss to the creditors of the company, or any of them, or
(b) the person was a party to the contracting of a debt by the company and did not honestly believe on reasonable grounds that the company would be able to pay the debt when it fell due for payment as well as all its other debts (taking into account the contingent and prospective liabilities).
(4) Notwithstanding anything contained in subsection (2), the court may grant a declaration on the grounds set out in subsection (1)(a) only if—
(a) paragraph (a), (b), (c) or (d) of section 570 applies to the company concerned, and
(b) an applicant for such a declaration, being a creditor or contributory of the company or any person on whose behalf such application is made, suffered loss or damage as a consequence of any behaviour mentioned in subsection (1).
(5) In deciding whether it is proper to make a declaration on the ground set out in subsection (3)(b), the court shall have regard to whether the creditor in question was, at the time the debt was incurred, aware of the company’s financial state of affairs and, notwithstanding such awareness, nevertheless assented to the incurring of the debt.
(6) Where the court makes a declaration under this section, it may provide that sums recovered under this section shall be paid to such person or classes of persons, for such purposes, in such amounts or proportions at such time or times and in such respective priorities among themselves as such declaration may specify.
(7) On the hearing of an application under this section, the applicant may himself or herself give evidence or call witnesses.
(8) Where it appears to the court that any person in respect of whom a declaration has been sought on the grounds set out in subsection (1)(a) has acted honestly and responsibly in relation to the conduct of the affairs of the company or any matter or matters on the ground of which such declaration is sought to be made, the court may, having regard to all the circumstances of the case, relieve him or her either wholly or in part, from personal liability on such terms as it may think fit.
Supplemental provisions in relation to section 610
611. (1) Where the court makes a declaration under section 610 , it may give such directions as it thinks proper for the purpose of giving effect to the declaration.
(2) In particular, and without limiting subsection (1) or section 610 (6), the order providing for a declaration under section 610 , or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on—
(a) any debt or obligation due from the company to the respondent, or
(b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the company held by or vested in—
(i) the respondent or any company or other person on the respondent’s behalf, or
(ii) any person claiming as assignee from or through the respondent or any company or other person acting on behalf of the first-mentioned person in this subparagraph.
(3) Where a charge is imposed as mentioned in subsection (2), the court may from time to time make such further order as may be necessary for the purpose of enforcing that charge.
(4) Section 610 (1)(a) shall not apply in relation to the carrying on of the business of a company during a period when the company is under the protection of the court.
(5) Section 610 and this section shall have effect notwithstanding that—
(a) the person in respect of whom the declaration has been sought under section 610 may be criminally liable in respect of the matters on the ground of which such declaration is to be made, or
(b) any matter or matters on the ground of which the declaration under section 610 is to be made have occurred outside the State.
(6) In section 610 “officer”, in relation to a company, includes a statutory auditor or liquidator or provisional liquidator of the company, a receiver of property of the company and a shadow director of it.
(7) In subsection (2)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
Power of court to assess damages against certain persons
612. (1) Subsection (2) applies if in the course of winding up a company it appears that—
(a) any person who has taken part in the formation or promotion of the company, or
(b) any past or present officer, liquidator, provisional liquidator or examiner of the company, or receiver of the property of the company,
has misapplied or retained or become liable or accountable for any money or property of the company, or has been guilty of any misfeasance or other breach of duty or trust in relation to the company.
(2) The court may, on the application of the Director or the liquidator or any creditor or contributory of the company, examine into the conduct of the promoter, officer, liquidator, examiner or receiver, and compel him or her—
(a) to repay or restore the money or property or any part of it respectively with interest at such rate as the court thinks just, or
(b) to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or other breach of duty or trust as the court thinks just.
(3) This section shall have effect notwithstanding that the person in respect of whom an order has been sought under it may be criminally liable in respect of the matters on the ground of which the order is to be made.
Directors of holding company: power of court to assess damages against them
613. (1) Subsection (2) applies if, in the course of winding up a company which is a subsidiary of another company, it appears that any director of the subsidiary’s holding company has—
(a) misapplied or retained or become liable or accountable for any money or property of the subsidiary, or
(b) been guilty of any misfeasance or other breach of duty or trust in relation to the subsidiary.
(2) The court may, on the application of the liquidator or any creditor, contributory or member of the subsidiary, examine into the conduct of the director concerned and compel him or her—
(a) to repay or restore the money or property or any part of it respectively with interest at such rate as the court thinks just, or
(b) to contribute such sum to the assets of the subsidiary by way of compensation in respect of the misapplication, retainer, misfeasance or other breach of duty or trust as the court thinks just.
(3) This section—
(a) shall have effect notwithstanding that the person in respect of whom an order has been sought under it may be criminally liable in respect of the matters on the ground of which the order is to be made, and
(b) is without prejudice to any other basis for imposing liability on any person (whether related to the company or not) in respect of the person’s acts or defaults in relation to the company or its property.
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.