The Supreme Court

^[1]  - Proceedings under Part 10 of the Companies Act 2014 (Examinership)

1. (1) In this Order, unless the context or subject matter otherwise requires: “the Act” means the Companies Act 2014;

“centre of main interests” shall be construed in accordance with the Insolvency Regulation;

“Examiner” shall include Interim Examiner;

“the Insolvency Regulation”, “liquidator in main proceedings”, “main proceedings”, “Member State”, “secondary proceedings” and “territorial proceedings” each has the same meaning as in Order 74.

(2) Words and expressions contained in this Order shall have the same meaning as in the Act.

(3) In any case in which main proceedings have been opened in a Member State other than the State, the Examiner shall, where such document may be relevant to the main proceedings concerned, immediately send a copy of every petition, notice, report, affidavit or other document in the proceedings to the liquidator in the main proceedings by electronic mail or facsimile where possible or otherwise by registered prepaid post, in accordance with and for the purposes of Article 31 of the Insolvency Regulation.

(4) The provisions of this Order which apply to a company shall apply to an industrial and provident society to the extent that the provisions of the Act concerning examinership are applied to industrial and provident societies and subject to the modifications made in, or necessitated by, the application of the provisions of the Act concerning examinership to industrial and provident societies.

2. All applications and proceedings for or in relation to an appointment of an examiner under the Act or concerning such examination shall be assigned to such Judge or Judges as the President of the High Court shall from time to time assign to hear such applications and proceedings, but if such Judge or Judges shall be unable to dispose of such applications or proceedings, any other Judge or Judges of the High Court may dispose of any such application.

3. (1) An application under section 509 of the Act shall be grounded on the petition and the verifying affidavit of the party making such application and shall be heard and determined on affidavit unless the Court otherwise orders.

(2) The petition referred to in sub-rule (1) shall

(a) contain either:

(i) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests (determined in accordance with the Insolvency Regulation) is situated in the State and the facts and grounds supporting each statement; or

(ii) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests is situated in another specified Member State and the facts and grounds supporting each statement; or

(iii) a statement that the Insolvency Regulation does not apply to the proceedings, and the facts and grounds supporting that statement, and in such case, shall contain a statement of the reasons why the debtor is entitled to apply for the appointment of an examiner;

(b) contain a statement that, to the petitioner’s knowledge, no insolvency proceedings (within the meaning of Article 2 of the Insolvency Regulation) have been opened in respect of the company in any Member State (other than the State), or that such insolvency proceedings have been opened and if so, whether the proceedings which have been opened are main proceedings, territorial proceedings or secondary proceedings.

(3) Where insolvency proceedings have been opened in any other Member State, the affidavit verifying the petition shall exhibit a certified copy of the original decision appointing the liquidator in the main proceedings or any other certificate of the court having jurisdiction (as referred to in Article 19 of the Insolvency Regulation) and if such decision or certificate is not in one of the official languages of the State, a translation of that decision or certificate into the Irish or the English language certified by a person competent and qualified for the purpose.

(4) Where the petitioner applies for an order under section 556 of the Act for the hearing of the proceedings otherwise than in public the reasons for such an application shall be specified in the petition.

4. (1) This rule applies only where, in the petitioner’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State.

(2) In a case to which this rule applies, the petition shall also:

(a) identify the place within the State where the company has an establishment (determined in accordance with Article 2(h) of the Insolvency Regulation);

(b) where main proceedings have not been opened in another Member State, contain a statement as to which of the conditions referred to in Article 3(4)(a) or Article 3(4)(b) of the Insolvency Regulation is met and the facts and grounds supporting that statement.

5. (1) A petition for the appointment of an Examiner under the Act shall be presented at and shall be retained in the Central Office. A sealed copy thereof shall be taken out by the petitioner or by his solicitor and shall be used as if it were an original.

(2) The petition shall be brought to the office of one of the Registrars who shall appoint the time and place at which the petition is to be heard.

(3) Every petition for the appointment of an Examiner shall be verified by affidavit. Such affidavit shall be made by the petitioner or by one of the petitioners if more than one, or in case the petition is presented by a corporation or company, by one of the directors, secretary or other officer thereof and shall be sworn before the presentation of the petition and filed with such petition and such affidavit shall be sufficient prima facie evidence of the statements in the petition. The form of the petition shall comply with sections 510 to 512 of the Act and shall also, so far as applicable, comply with Form No. 2 in Appendix M.

(4) On the same day as the petition shall have been presented, the petitioner shall apply ex parte to the Court for directions as to proceedings to be taken in relation thereto.

6. (1) On the hearing of the ex parte application referred to in rule 5(4) or on any adjourned hearing or hearings thereof or on any subsequent application, the Court may make such order or orders as it thinks fit and may give such directions as it thinks fit and in particular may give directions as to the parties on whom the petition should be served, the mode of service, the time for such service, the date for the hearing of the petition (if different to that appointed by the Registrar) and whether the said petition should be advertised and if so, how the same should be advertised.

(2) On the hearing of such ex parte application, the Court may, if it thinks fit, treat the application as the hearing of the petition and may make such interim order or any other order it thinks fit including adjourning the hearing and may appoint any proposed Examiner on an interim basis until such adjourned hearing and an Examiner so appointed over any company or any related company shall be referred to as the Interim Examiner and shall have the same powers and duties in relation to such company until the date of the adjourned hearing as if he were an Examiner appointed other than on an interim basis.

(3) The Court may adjourn the hearing of the petition or any adjourned hearing until any party or parties which the Court considers should be notified have been notified of the presentation of the petition, whether by advertisement or otherwise, and may adjourn any hearing of the petition for any other reason that appears to the Court to be just and equitable.

(4) An application for directions under section 516 of the Act concerning the supply of the independent expert’s report shall be by motion ex parte, provided that the Court may direct that notice be given to such person or persons as it may deem fit.

(5) An application for orders under section 522 of the Act shall be by motion on notice to the receiver or, as the case may be, the provisional liquidator.

(6) An application for an order under section 523 of the Act shall be by motion on notice to the receiver but in any case where no petition to appoint an examiner has been presented, the application may be made by originating notice of motion on notice to the receiver.

(7) On the hearing of a petition or on the adjournment or the further hearing of such petition, the Court may, having heard the petitioner and any interested party or any person who has been notified of the petition and who appears thereto, as the case may be, appoint an Examiner, and may make such further or other order as it thinks fit.

7. (1) An application for the appointment of an Examiner to be appointed an Examiner of a related company pursuant to section 517 of the Act if brought by the petitioner or by the Examiner shall be made ex parte to the Court provided that on the hearing of any such application, the Court may make such orders or give such directions as it thinks fit including directions as to whether, and if so, upon which parties notice of the application should be served, the mode of such service and the time allowed for such service and whether the application should be advertised and if so, how the same should be advertised and may adjourn the hearing of such application to a date to be specified.

(2) The Court may, if it thinks fit, while adjourning such application, make such interim order as it sees fit including the appointment of the Examiner as the Examiner of the related company on an interim basis and may also confer on such Examiner in relation to such company all or any of the powers and duties conferred on him in relation to the first mentioned company on an interim basis until the adjourned hearing.

(3) An application for the appointment of an Examiner to be the Examiner of a related company shall, if brought by any person other than the petitioner or the Examiner of the first mentioned company, be brought by way of notice of motion served upon the Examiner and petitioner.

(4) The moving party in an application under this rule shall in his or its affidavit grounding such application:

(a) verify that, to the moving party’s knowledge, no insolvency proceedings have been opened in respect of the related company in any Member State or Member States (other than the State), or that such insolvency proceedings have been opened and if so, whether those insolvency proceedings are main proceedings, territorial proceedings or secondary proceedings;

(b) in a case where, in that party’s belief, the centre of the related company’s main interests is situated within the territory of a Member State other than the State, identify the Member State concerned and the place within the State where, in the moving party’s belief, the company has an establishment (determined in accordance with Article 2(h) of the Insolvency Regulation).

8. In any case where an Interim Examiner has been appointed to any company or an Examiner has been appointed Interim Examiner of a related company of that company, and where upon the final hearing of the application or of the petition, as the case may be, no Examiner is appointed to that company or to that related company, as the case may be, or where a person other than the Interim Examiner is appointed as Examiner to the company or to the related company, such Interim Examiner shall prepare a written report for the Court in relation to the company or to the related company or both in such time as the Court shall direct. Such Examiner shall keep and maintain a true record of all liabilities certified by him under section 529 of the Act and shall in his written report give a full account of all liabilities so certified to the Court and shall deal with such further or other matters as may be directed by the Court.

9. (1) Any application by any Examiner of a company pursuant to section 520(5) of the Act in relation to any existing proceedings involving that company shall be brought by motion on notice to all the parties to such proceedings including the company in relation to which the Examiner was appointed.

(2) An application by any person under section 520(5) of the Act seeking the leave of the Court to commence proceedings in relation to the company shall be brought by way of motion on notice to the Examiner and to the company.

(3) An application under section 521(2) of the Act to the Court to authorise the discharge or satisfaction, in whole or in part, by the company of a liability referred to in section 521(1) of the Act shall be brought by way of motion on notice to the Examiner and to the company.

10. (1) Any application by an Examiner pursuant to section 524(7)(a) of the Act may be made ex parte to the Court and on hearing of any such application the Court may deal with the application and may make such order or orders in relation thereto as it thinks fit or may adjourn the application and give such directions as to proceedings to be taken upon it as it thinks fit.

(2) An application by an Examiner pursuant to section 524(7)(b) of the Act shall be by way of motion on notice to any member, contributory, creditor or director of the company who may be affected.

(3) An application by the company or by an interested party pursuant to section 532(9) of the Act shall be made by motion on notice to the Examiner and to any other interested party or the company, as the case may be.

11. Once an Examiner has certified any refusal or refusals specified in section 526(6) of the Act, he shall thereupon apply ex parte to the Court for leave to produce the said certificate in relation to such refusal and shall verify the facts in the certificate by affidavit and thereupon the Court upon notice to the party concerned, may make such enquiries and give such directions in relation to the said refusals as it thinks fit and shall hear such evidence as may be produced in relation thereto and may make such order as seems just and proper in the circumstances.

12. Any application to the Court by the Examiner pursuant to section 528 of the Act for the vesting in him of all or any of the powers or functions vested in or exercisable by the directors of the company shall be made by notice of motion served upon the said directors, grounded on the affidavit of the Examiner specifying which, if not all, of the powers he seeks to have vested in him by order of the Court and the Court may give such directions in relation to the hearing of the said application as it thinks fit.

13. An application by the Examiner, pursuant to section 530 of the Act for the disposal of any property which is the subject of any security or of any goods which are in the possession of the company under a hire purchase agreement, shall be made by notice of motion grounded upon affidavit of the Examiner and served upon the holder of such security or the hire purchase company, as the case may be, or upon any other person who appears to have an interest in the property and the Court may upon the hearing of the application make such order under section 530 of the Act as appears just and proper and may give such directions concerning the proceeds of all such disposals as shall have been authorised by the Court.

14. (1) An Examiner wishing to resign pursuant to section 532 of the Act, shall do so by an application ex parte to the Court. On the hearing of the application the Court may, if it thinks fit, direct that notice of the application be served on the petitioner, the company, the directors of the company or any other interested party as may be appropriate. The application of the Examiner shall be grounded upon an affidavit sworn by him, specifying the reasons for the said proposed resignation, and the date of the said proposed resignation. Upon the application, the Court may make such order as appears just and proper in the circumstances.

(2) An application to the Court pursuant to section 532 of the Act to remove an Examiner shall be made by motion on notice to the Examiner, to the petitioner, to the company and its directors and to any other party as the Court may direct. Such application shall be grounded upon an affidavit of the moving party specifying the cause alleged to exist justifying the removal of the Examiner by the Court. On the hearing of the application, the Court may make such order as appears just in the circumstances and, if satisfied that cause has been shown for the removal of the Examiner by the Court shall order that he be removed forthwith or upon such date as the Court shall specify. The Court may either before or after ruling upon the application for the removal of the Examiner make such order for the production of any document or documents, or the preparation of such report or reports as it thinks fit.

(3) An application pursuant to section 532(2) of the Act to fill a vacancy in the office of an Examiner shall be made ex parte to the Court provided that the Court may, if it thinks fit, adjourn the application and make such order or give such directions as appear proper in the circumstances, including directions for service of notice of the making of the application upon such party as it thinks proper.

15. (1) Where it appears to the Court that there is evidence of a substantial disappearance of property of the company that is not adequately accounted for, or of other serious irregularities in relation to the company’s affairs having occurred, and the Court directs the holding of a hearing under section 533 of the Act to consider that evidence, the Court shall give such further directions in relation to the preparations for and conduct of that hearing as it considers appropriate, which may include directions as to the filing of any affidavit by any person entitled to be heard or by any other person, and directions as to the preparation of any report by the Examiner.

(2) An application for directions under section 533(5) of the Act concerning the supply of the examiner’s report under section 533 shall be by motion ex parte provided that the Court may direct that notice be given to such person or persons as it may deem fit.

16. (1) When an Examiner is formulating proposals pursuant to section 534 of the Act for a compromise or scheme of arrangement, any application for an extension of time for the delivery by the Examiner of his report thereon, shall be made ex parte to the Court within the time for the delivery of the report or as extended by the Court. Any party affected by the extension, may on notice of motion to the Examiner apply to the Court to set the said order aside upon grounds to be specified and verified in an affidavit and on such application, the Court may make such orders as it thinks fit.

(2) An application by the Examiner for directions under section 535 of the Act shall be made ex parte to the Court in the first instance and the Court may direct service of notice of the application on any person. Any party affected by such directions, may on notice of motion to the Examiner apply to the Court to vary or set aside any directions upon grounds to be specified and verified in an affidavit and on such application, the Court may make, vary or set aside such directions as it thinks fit.

17. (1) When an Examiner has prepared a report pursuant to section 534 of the Act within the time prescribed or within such time as shall have been fixed by the Court, he shall effect delivery of his report by making an ex parte application to the Court to deliver it.

(2) The report shall contain a full account of each meeting convened by the Examiner and of the proposals put before each such meeting and shall contain as an appendix to the said report a copy of the said proposals which shall deal with each of the matters specified in section 539 of the Act in the order set out in that section.

(3) The Examiner shall in his application specify whether and if so, what portions of the report should be omitted from delivery under section 534(5) of the Act and he shall draw to the attention of the Court any particular aspects of the report which are or may be relevant to the exercise by the Court of any other of its functions under the Act.

(4) When the Examiner has been given leave to deliver his report pursuant to sub-rule (1) and where the Examiner has formulated proposals pursuant to section 534 of the Act for a compromise or scheme of arrangement and has reported to the Court thereon in the period prescribed or within such further period as may have been specified by the Court, the Examiner may apply to the Court ex parte for an extension of the period of protection pursuant to section 534(4) of the Act for such further period as may be necessary for the Court to enable it to take a decision in relation to the report of the Examiner on the proposals. Upon the making of the application, the Court may direct that the Examiner serve notice of the application on such party or parties as the Court thinks fit. The Court may adjourn the application to enable the service to take place, but may extend the period concerned until the adjourned date of the hearing or such other date as to the Court may seem fit, and the Court may further extend the period concerned in the event of any further adjournments of the said hearing.

18. All meetings of members or classes of members or creditors or classes of creditors convened for the purposes of section 534 or section 540 of the Act shall be governed by the following rules:

1.  The Examiner shall summon all meetings of creditors and members by sending by post not less than three days before the day appointed for the meeting to every person appearing in the company’s books to be a creditor of the company or a member of the company, notice of the meeting of creditors or members as the case may be.

2.  The notice to each creditor or member shall be sent to the address given in the report of the Examiner of the company, if any or to such other address as may be known to the Examiner.

3.  An affidavit by the Examiner or solicitor or by some other officer or clerk of the company or its solicitor that the notice of any meeting has been duly posted shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed. The Examiner may fix a meeting or meetings to be held at such place as in his opinion is most convenient for the majority of creditors or members, or both and different times and/or places may be named for the meetings of creditors and members.

4.  The Examiner shall preside at and be chairman of any meeting which he has convened and shall conduct the business of the meeting in an orderly manner so as to ensure the proper discussion of all proposals placed by him before the said meeting.

5.  Where a meeting of creditors or members is summoned by notice, the proceedings and resolutions of the meeting shall unless the Court otherwise orders be valid, notwithstanding that some creditors or members may not have received the notice sent to them.

6.  The Examiner may with the consent of the meeting adjourn from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified or unless the Court otherwise orders.

7.         (a) A meeting may not act for any purpose except the adjournment of the meeting unless there are present or represented thereat in the case of a creditors meeting, at least three creditors ruled by the Examiner to be entitled to vote or in the case of a meeting of members, at least two members.

(b) If within 15 minutes from the time appointed for the meeting, a quorum of creditors or members as the case may be is not present or represented, the meeting shall be adjourned for the same day in the following week at the same time and place or to such other day or time or place as the Examiner may appoint but so that the day appointed shall be not less than three, nor more than 21 days from the date from which the meeting was adjourned.

8.         (a) The Examiner shall cause minutes of the proceedings of the meeting to be drawn up and entered in a book kept for that purpose and the minutes shall be signed by him.

(b) The Examiner shall cause a list of creditors or members present at every meeting to be kept and every such list shall be signed by him.

9.  A creditor or member may appear either in person or by proxy. Where a person is authorised in the manner provided by section 185 of the Act to represent a corporation at any meeting of creditors or members, such person shall produce to the Examiner a copy of the resolution so authorising him. Such copies shall be under the seal of the corporation or be certified to be a true copy by the secretary or director of the corporation.

10. Every instrument of proxy shall be, as far as possible, in either the Form No. 18 or Form No. 19 in Appendix M.

11. A general and a special form of proxy shall be sent to each of the creditors or members with a notice summoning the meeting and neither the name nor the description of the Examiner or any other person shall be printed or inserted in the body of any instrument of proxy before it is sent.

12. A creditor or a member may appoint any person a special proxy to vote at any specified meeting or adjournment thereof on all questions relating to any matter arising at the meeting or an adjournment thereof.

13. A creditor or member may appoint the Examiner to act as his general or special proxy.

14.       (a) Every instrument of proxy shall be lodged with the Examiner no later than four o’clock in the afternoon of the day before the meeting or adjourned meeting at which it is to be used and the same shall be kept by the Examiner.

(b) No person who is a child shall be appointed a general or special proxy.

(c) Where a company is a creditor, any person who is duly authorised under the seal of such company to act, generally on behalf of the company at meetings of creditors and members, may fill in and sign the instrument of proxy on such company’s behalf and appoint himself to be such company’s proxy and the instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of such company.

15. The Examiner shall have power to allow or disallow the vote of a person claiming to be a creditor or member, if he thinks fit, but his decision may be subject to appeal to the Court. If he is in doubt whether a vote should be allowed or disallowed, he shall allow it and record the vote as such subject to the vote being declared invalid in the event of an objection being taken and sustained by the Court.

19. An application by the company pursuant to section 537 of the Act authorising approval or repudiation of any contract or any application arising out of any such repudiation shall be made by motion on notice to the Examiner and on notice to the other contracting party or parties and on notice to any person referred to in section 537(2) of the Act.

20. When on the consideration of a report under section 541 of the Act, the Court considers that an order for the winding up of the company in accordance with section 542(5) of the Act should be made, the Court may order that the application for the winding up of the company or of any related company be made by the Examiner or by such other person as the court may direct and the court may order that the provisions of Order 74, either in whole or in part, shall apply to the winding up as ordered by the Court.

21. (1) An application to the Court pursuant to section 553 of the Act for the revocation of confirmation of proposals confirmed by the Court, shall be made ex parte for directions as to the proceedings to be taken and the application shall be grounded upon an affidavit which shall specify the fraud alleged and shall supply full particulars thereof and shall specify the names and addresses of all parties who have or may have acquired interests or property in good faith and for value and in reliance on the confirmation of the proposals by the Court.

(2) Upon such application, the Court may make such order and give such directions for the hearing of the said application including directions for service of notice of the application upon all such parties as appear proper in the circumstances and may give such further directions as to the application, including particularly, whether and if so, how the same should be advertised and if it seems fit, direct the filing of any pleadings in the matter.

22. An application by the Examiner pursuant to section 554 of the Act for payment to him of remuneration and costs and reasonable expenses properly incurred by him shall be made by application ex parte to the Court and upon an affidavit of the Examiner in which he shall set forth a full account of the work carried out by him to the date of the application and a full account of the costs and expenses incurred by him and shall vouch same, and of the basis for the proposed remuneration which he is seeking to be paid. The Court may, where it thinks fit, order that notice of the application be given to all such persons as the Court may direct, and may give directions as to the service of the said notice and fix a date for the hearing of the application of the Examiner. The affidavit of the Examiner shall also specify what use, if any, he has made of the services of the staff and/or of the facilities of the company to which he has been appointed and the extent of such use.

23. A request by a liquidator in main proceedings pursuant to Article 37 of the Insolvency Regulation for the conversion into winding-up proceedings of proceedings under the Act previously opened in the State in respect of a company shall be by notice of motion in the proceedings by the liquidator in the main proceedings. Such notice of motion shall be grounded upon an affidavit sworn by or on behalf of the liquidator in the main proceedings, which affidavit shall specify the reasons why it is alleged the conversion of the proceedings into winding-up proceedings would be in the interests of the creditors in the main proceedings. A copy of the notice of motion and a copy of the grounding affidavit and any exhibits thereto shall be served upon the company and the examiner not later than seven days before the return date. On the return date, the Court may make such orders or give such directions for the conduct and hearing of the application as seem appropriate.

24. An application for a declaration under section 416(6) of the Act in the case of a company in examinership shall be brought by motion on notice to the person against whom such an order is sought.

25. An application for an order under section 557 of the Act shall be brought by motion on notice to the person against whom such an order is sought.