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33 1990

COMPANIES ACT, 1990

Chapter 3

Enforcement

Penalty for acting contrary to the provisions of Chapter 1 or 2.

161. —(1) Any person who, in relation to any company, acts in a manner or capacity which, by virtue of being a person to whom section 150 applies or being subject or deemed to be subject to a disqualification order, he is prohibited from doing shall be guilty of an offence.

(2) Where a person is convicted of an offence under subsection (1) he shall be deemed to be subject to a disqualification order from the date of such conviction if he was not, or was not deemed to be, subject to such an order on that date.

(3) Where a person convicted of an offence under subsection (1) was subject, or deemed to be subject, to a disqualification order immediately prior to the date of such conviction, the period for which he was disqualified shall be extended for a further period of ten years from such date, or such other further period as the court, on the application of the prosecutor and having regard to all the circumstances of the case, may order.

(4) Section 160 (8) shall not apply to a person convicted of an offence under subsection (1) of this section.

(5) Where—

(a) a person who is a person to whom section 150 applies is or becomes a director of a company which commences to be wound up within the period of 5 years after the date of commencement of the winding-up of the company whose insolvency caused that section to apply to him; and

(b) it appears to the liquidator of the first-mentioned company that that company is, at the date of commencement of its winding-up or at any time during the course of its winding-up, unable to pay its debts;

the liquidator shall report those matters to the court and the court, on receiving the report and if it considers it proper to do so, may make a disqualification order against that person for such period as it thinks fit.

(6) If the liquidator fails to comply with subsection (5) he shall be liable to a fine not exceeding £1,000.

Period of disqualification order to which person is deemed to be subject.

162. —Where a person is, as a consequence of his conviction of an offence under this Chapter, deemed to be subject to a disqualification order, he shall be deemed to be so subject for a period of five years from the date of such conviction or such other period as the court, on the application of the prosecutor and having regard to all the circumstances of the case, may order.

Civil consequences of acting contrary to the provisions of Chapter 1 or 2.

163. —(1) Subsections (2) and (3) apply to any person who acts, in relation to a company, in a manner or capacity which, by virtue of being a person to whom section 150 applies or being subject or deemed to be subject to a disqualification order, he is prohibited from doing.

(2) Where any consideration is given by or on behalf of a company for an act done or service performed by a person referred to in subsection (1) while he was acting in a manner or capacity described in that subsection, the company shall be entitled to recover from him, as a simple contract debt in any court of competent jurisdiction, the consideration or an amount representing its value.

(3) Where—

(a) a person referred to in subsection (1) acts, in relation to a company, in a manner or capacity described in that subsection, and

(b) the company concerned commences to be wound up—

(i) while he is acting in such a manner or capacity, or

(ii) within 12 months of his so acting, and

(c) the company is unable to pay its debts, within the meaning of section 214 of the Principal Act,

the court may, on the application of the liquidator or any creditor of the company, declare that such person shall be personally liable, without any limitation of liability, for all or any part of the debts or other liabilities of the company incurred in the period during which he was acting in such a manner or capacity.

(4) Where a company which has received a notification under section 155 (5) and which carries on business following such notification without the requirements of section 150 (3) being fulfilled within a reasonable period—

(a) is subsequently wound up, and

(b) is at the time of the commencement of the winding-up unable to pay its debts (taking into account the contingent and prospective liabilities),

the court may, on the application of the liquidator or any creditor or contributory of the company, declare that any person who was an officer of the company while the company so carried on business and who knew or ought to have known that the company had been so notified 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.

(5) In any proceedings brought against a person by virtue of this section the court may if, having regard to the circumstances of the case, it considers it just and equitable to do so, grant relief in whole or in part from the liability to which he would otherwise be subject thereunder and the court may attach to its order such conditions as it sees fit.

Penalty for acting under directions of disqualified person.

164. —(1) If any person while a director or other officer or a member of a committee of management or trustee of any company acts in accordance with the directions or instructions of another person knowing that such other person is disqualified or that, in giving the directions or instructions, he is acting in contravention of any provision of this Part he shall be guilty of an offence.

(2) Where a person is convicted of an offence under subsection (1) he shall be deemed to be subject to a disqualification order from the date of such conviction if he was not, or was not deemed to be, subject to such an order on that date.

Civil consequences of acting under directions of disqualified person.

165. —(1) A person who is convicted of an offence under section 164 for acting in accordance with the directions or instructions of a disqualified person shall, subject to subsection (2), be personally liable for the debts of the company concerned incurred in the period during which he was so acting.

(2) In any proceedings brought against a person for the recovery of any such debt the court may if, having regard to the circumstances of the case, it considers it just and equitable to do so, grant relief in whole or in part from the liability to which he would otherwise be subject under subsection (1) and the court may attach to its order such conditions as it sees fit.

Information to be given by directors to the court.

166. —(1) Where—

(a) a director of a company is charged with an offence or civil proceedings are instituted against such a director, and

(b) the charge or proceedings relate to the company or involve alleged fraud or dishonesty,

the director shall, by notice in writing to the court lodged before the hearing of the case—

(i) give the names of all companies of which he is a director at the date of the notice,

(ii) give the names of all companies of which he was a director within a period commencing not earlier than 12 months prior to the commencement of proceedings and ending at the date of the notice,

(iii) state whether he is at the date of the notice or ever was subject or deemed to be subject to a disqualification order, and

(iv) give the dates and duration of each period in respect of which he is or was disqualified.

(2) This section applies to shadow directors as it applies to directors.

(3) Any person who contravenes subsection (1) shall be guilty of an offence.

Information to be supplied to registrar of companies.

167. —Where a court—

(a) makes a disqualification order;

(b) grants or varies relief under section 160 (8); or

(c) convicts a person of an offence—

(i) which has the effect of his being deemed to be subject to a disqualification order, or

(ii) under section 161 (1) or 164,

a prescribed officer of the court shall cause the registrar of companies to be furnished with prescribed particulars of the order, relief or conviction at such time and in such form and manner as may be prescribed.

Register of persons subject to disqualification orders.

168. —(1) The registrar shall, subject to the provisions of this section, keep a register of the particulars which have been notified to him under section 167 , and the following provisions of this section shall apply to the keeping of such a register.

(2) Where the particulars referred to in section 167 (b) comprise the grant of full relief under section 160 (8), the registrar shall not enter such particulars on the register referred to in subsection (1), but shall, as soon as may be, remove any existing particulars in respect of the person concerned from the register.

(3) The registrar shall also remove from the register any particulars in relation to a person on the expiry of five years from the date of the original notification under section 167 , or such other period in respect of which the person concerned is deemed to be subject to a disqualification order, unless the registrar has received a further notification in respect of that person under this section.

(4) Nothing in this section shall prevent the registrar from keeping the register required by this section as part of any other system of classification, whether pursuant to section 247 or otherwise.

Prohibition of undischarged bankrupts acting as directors or other officers of companies.

169. —The Principal Act is hereby amended by the substitution for section 183 of the following section—

“183.—(1) Subject to subsection (2), if any person being an undischarged bankrupt acts as officer, auditor, liquidator or examiner of, or directly or indirectly takes part or is concerned in the promotion, formation or management of, any company except with the leave of the court, he shall be guilty of an offence.

(2) Where a person is convicted of an offence under subsection (1) he shall be deemed to be subject to a disqualification order from the date of such conviction if he was not, or was not deemed to be, subject to such an order on that date.

(3) In this section ‘company’ includes a company incorporated outside the State which has an established place of business within the State.”.