Ireland

In releasing the Annual Report of the ODCE on 1 June 2004, Mr Paul Appleby commented on the increased amount of throughput in enforcement work his office had handled in 2003 compared with 2002. The office looked at 3,000 regulatory issues or cases of suspected misconduct during the year. Included in the results reported in the Annual Report were 14 High Court orders obtained against nine liquidators following ODCE proceedings to remedy a failure by each liquidator to submit an insolvent company report.

Key Legislation

• Companies Act 1963 and 1990 and amending legislation
• Bankruptcy Act 1988
• Company Law Enforcement Act 2001

Insolvency Procedures

Personal Insolvency procedures

Personal insolvency procedures are set out in the Bankruptcy Act 1988.
Bankruptcy proceedings begin in the High Court and in the vast majority of cases the Official Assignee in Bankruptcy (a court officer) is appointed to realise the assets of a bankrupt and distribute the proceeds to creditors (after paying fees and expenses). Bankruptcy can commence with a petition either from the debtor or a creditor. There are also arrangements that can be made outside of bankruptcy, either voluntary arrangements or arrangements under the control of the court.

The ODCE, as its name suggests, deals with enforcement under the Company Law only, not bankruptcy law.

Corporate Insolvency procedures

One of the matters being reviewed by the company Law Review Group in a second report expected to be released in 2004, is the powers of the ODCE.

The ODCE was formed to improve the compliance environment for corporate activity in the Irish economy by:

• Encouraging adherence to the requirements of the Companies Acts, and
• Bringing to account those who disregard the law.

Thus the ODCE has both a compliance and enforcement role in relation to corporate activity, including corporate insolvency procedures.

The ODCE was set up under the Company Law Enforcement Act 2001. It took over roles previously undertaken by the Department of Enterprise Trade and Employment.

It both investigates and prosecutes suspected breaches.

The Director has powers in relation to:

• Insolvent companies whether in liquidation or not;
• The restriction and disqualification of company directors and other persons; and
• The supervision of liquidators and receivers.
  
  

Roles

Role played by Government

The Official Assignee in Bankruptcy is a government official who administers the vast majority of bankruptcies in Ireland.

The ODCE is part of the Company Law Administration Section of the Department of Enterprise Trade and Employment.

Role played by private sector practitioners

The interaction between the ODCE and the private sector practitioners is that the ODCE receives reports from liquidators is relation to suspected wrongdoing by company directors and the ODCE can obtain a court order to force liquidators to file the reports and apply for restriction or disqualifications orders against company officers.

Role played by the Court

In Bankruptcy, the court appoints the Official Assignee.

The Court has a general oversight role in bankruptcy and company liquidation.

As the ODCE has a role in investigating and prosecuting misconduct cases, this role requires applications to the court.

At a Glance

Does the insolvency system in Ireland allow for:

1.	Different procedures for the insolvency of individuals and the insolvency of companies?
2.	Creditors to accept an arrangement outside of formal bankruptcy/liquidation proceedings?
3.	Priority payment for employee creditors?
4.	Priority payment for taxation debts?
5.	Automatic disqualification of directors of failed companies from managing other companies?
6.	Recognition of insolvency proceedings being conducted in another jurisdiction?
7.	A government agency to undertake insolvency administration work?
8.	Some form of licensing of private sector practitioners?
9.	A review of the remuneration claimed by an insolvency practitioner by either a court or other government regulator?
10.	A mandatory scale of fees applicable to insolvency practitioner remuneration?
11.	Surveillance of the work of private sector practitioners by a government regulator?
12.	Collation of insolvency statistics by a government regulator?