A company which is in examinership is under scrutiny by an examiner so that he/she can report back to the High Court with proposals for the company’s survival.
Examinership is a mechanism provided for the rescue and return to health of ailing, but potentially viable companies. The company has to have a reasonable prospect of survival. When considering whether to grant an application to place a company in examinership, the court will have more information available to it, in the form of an independent accountant’s report. Creditors also have the right to be heard during the court hearing when the appointment of an examiner is being considered. However, a winding up of the company may not be in progress, voluntary or compulsory.
The court makes an order for the appointment of an examiner for the purpose of examining the state of the company’s affairs and performing such duties in relation to the company as may be imposed by the Act. A petition to the Court for the appointment of an examiner may be presented by the company or its directors, a creditor or contingent or prospective creditor (including an employee) of the company, or by the members holding not less than one tenth of the paid-up capital.
Where the Court appoints an examiner to a company, it may at the same time, or at any time thereafter, make an order appointing the examiner to a related company. The duration of the protection of the Court is 70 days from the date of the presentation of the petition.
A form E24 (notice of the petition to appoint an examiner) must be delivered to the CRO within three days after its presentation to the Court. The actual petition is not filed with the CRO. The examiner shall arrange for the particulars of his/her appointment including date of appointment to be published in Iris Oifigiuil and in at least two daily newspapers circulating in the district in which the registered office of the company is situated. A copy of the order to appoint the examiner must be filed with the registrar within three days.
It is a duty of the examiner to conduct an examination of the affairs of the company and report to the Court.
A court order to cease the protection of the court, to place the company in liquidation or to confirm the proposals needs to be filed with the CRO. Otherwise the status of the company would remain at Examinership and the individual would still appear on a company printout.
An office copy of orders made pursuant to sections 530, 531, 533, 542 and 553 must be delivered to the CRO. A court order has a filing fee of €15.
These orders are:
(a) an order under section 530 of the Act, regarding the power to deal with charged property;
(b) an order under section 531 of the Act, regarding the appointment as examiner;
(c) an order under section 533 of the Act, following a hearing regarding irregularities in relation to the company’s affairs - section 533(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 of companies by the examiner or such other person as it may specify;
(d) an order under section 542 of the Act, re confirmation of proposals;
(e) an order under section 553 of the Act, re revocation of order confirming proposals.
Section 555 of the Act provides that an examiner or such other person as the court may direct shall within 14 days after the delivery to the CRO of every order made under section 533, 542 or 553, cause to be published in Iris Oifigiúil notice of such delivery.
Examiners must meet qualification requirements in order to act as an examiner. Section 519 sets out the requirement.
519. (1) A person shall not be qualified to be appointed or act as an examiner of a company unless he or she would be qualified to act as its liquidator (but disregarding for this purpose the requirements of section 634 concerning professional indemnity cover).
(2) A person who acts as examiner of a company when he or she is not qualified to do so under subsection (1) shall be guilty of a category 2 offence.
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