Examinership, Receivership and Liquidation in Ireland

3009 Words Dec 13th, 2010 13 Pages
The collapse of the Irish economy has triggered a substantial increase in the number of companies in Ireland which are being deemed insolvent and which are no longer in a position to continue operating as viable entities. This has caused the companies directors, creditors and shareholders to seek remedies available under Irish law. The law in Ireland regarding companies in financial difficulties was originally set out by the Companies Act 1963, which was amended in 1990, and then again in 1999. All cooperate entities must adhere to the legislation set out under the Act and their individual memorandum of association and articles of association, which together constitute the constitution of a company.

The principal remedies for dealing
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McCracken J began by analysing the changes effected to the test for the appointment. He said the new test was more in keeping with the decision of Lardner J in the High Court than with the decision in the Supreme Court - “In re Atlantic Magnetic…Finlay CJ also stated that there cannot be an onus of proof on a petitioner to establish as matter of probability that the company is capable of surviving as a going concern. It seems to me that this is no longer the position under the Act of 1999 by reason of the wording of the new sub-s 2(2).” He refused to appoint an examiner as the petitioner had failed to discharge the onus of proof that there was a reasonable prospect of the survival of the company.

Although all petitions to have an Examiner appointed must be presented to the High Court, the HC may remit the matter to the Circuit Court under CA1990 Section 3.9 where it appears that the total liabilities of the company, do not exceed €317,434. For the petition to be approved, the CA 1990 required a petition to have evidence of possibility of salvation but no detailed analysis of the company’s situation was required. This is another criticism of that Act. The petition to have an examiner appointed and the grounding affidavit must be made uberrimae fides, that is, in the utmost of good faith. What was

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