What is the primary legislation governing insolvency and restructuring proceedings in your jurisdiction?
Insolvency and restructuring proceedings in Ireland are primarily governed by:
- the Companies Act 2014 (as amended);
- the Bankruptcy Act 1988 (as amended); and
- the Personal Insolvency Act 2012 (as amended).
These are supplemented by principles of common law.
The EU Regulation on Insolvency Proceedings (2015/848/EU) also applies in cross-border cases when a debtor has its centre of main interests in an EU member state.
On an international spectrum, is your jurisdiction more creditor or debtor friendly?
Ireland is generally regarded as having a creditor-friendly and flexible corporate recovery and insolvency framework. However, the courts are nevertheless cognisant of balancing the need for certainty – in terms of creditors having effective enforcement rights – with the requirement for the rights of debtors to be protected, particularly when dealing with vulnerable debtors.
Do any special regimes apply to corporate insolvencies in specific sectors (eg, insurance, pension funds)?
Modified insolvency regimes apply in certain sectors. For example, the Insurance (No 2) Act 1983 provides for the appointment of an administrator to non-life insurance insolvent companies at the request of the Central Bank in certain circumstances, with a view to ensuring the survival of the company and compliance with regulatory requirements.
Ireland took a series of exceptional steps to contain the crisis in the banking sector that emerged in 2008. Its strategy included transferring non-performing eligible assets to a government-backed entity called the National Asset Management Agency (NAMA) and providing capital and liquidity to weakened and distressed banks and building societies. NAMA has extensive powers under the NAMA Act 2009, in line with broader public interest concerns.
The European Communities (Reorganisation and Winding Up of Credit Institutions) Regulations 2011 (SI 48/2011) and the Central Bank and Credit Institutions (Resolution) Act 2011 apply to the winding up of credit institutions and banks and aim to provide an effective and expeditious regime for dealing with failing credit institutions.
The Irish Bank Resolution Corporation Act 2013 was enacted in February 2013 and provided for the immediate liquidation of Irish Bank Corporation Limited (formerly Anglo Irish Bank Corporation Limited) by way of 'special liquidation'. As the special liquidators were appointed by the minister for finance, they are obliged to comply with instructions given by the minister and act in the interests of the Irish taxpayer; this puts them in a somewhat different position than other liquidators, who are answerable primarily to the creditors of the company.
Ireland is an internationally recognised centre of excellence in aviation finance and recently gave effect to the Alternative A insolvency remedy of the Aircraft Protocol to the Cape Town Convention on International Interests in Mobile Equipment, the primary purpose of which is to provide a protective regime for aircraft financiers and creditors in insolvency proceedings (ie, similar to the US Chapter 11 procedure).
Are any reforms to the legal framework envisaged?
The government recently approved the drafting of the Courts and Land and Conveyancing Law Reform Bill 2018, with a view to giving mortgagees additional protections when dealing with family homes.
Director and parent company liability
Under what circumstances can a director or parent company be held liable for a company's insolvency?
Pursuant to the Companies Act 2014, when a company is being wound up, directors (including shadow and de facto directors) can be held personally liable for the debts of the company, where the court is satisfied that they have engaged in any of the following activities:
- fraudulent or reckless trading;
- failure to keep proper books of account, if such failure has contributed to the company's inability to pay all its debts or impeded the orderly winding up of the company; or
- unfair preference within six months of commencement of the winding up.
Subject to rare exceptions, a parent company or shareholder will not be held liable for the debts of a company.
What defences are available to a liable director or parent company?
The following defences are available to directors who face personal liability for the debts of a company.
Fraudulent or reckless trading;
The director must be able to demonstrate that they acted honestly and responsibly in relation to the conduct of the affairs of the company, in order to relieve them from personal liability either wholly or in part. There is a considerable amount of precedent, in terms of what constitutes honest and responsible behaviour in the context of defending applications to have directors restricted.
Failure to keep proper books of account
The director must satisfy the court that they took all reasonable steps to secure compliance with their obligations under the Companies Act or that they had reasonable grounds for believing – and did believe – that a competent and reliable person had been formally and appropriately allocated the responsibility of ensuring that the company's obligations were being fulfilled.
A defence to an allegation of making an unfair preference is to establish that the alleged act was not carried out with the dominant intention of giving one creditor preference over the other creditors.
What due diligence should be conducted to limit liability?
If the directors decide to continue to trade while the company is insolvent, there is clearly a serious risk of personal liability should the company ultimately go into liquidation. There are steps that can be taken to improve a director's chances of being able to rely on the 'honestly and responsibly' defence. As soon as a director is aware that there is no reasonable prospect of avoiding insolvent liquidation, or fears that that is the case, they should raise the problem with the rest of the board with a view to their taking independent professional advice. Further credit should almost certainly not be incurred pending such advice and directors must take every step to minimise the potential loss to creditors.
Position of creditors
Forms of security
What are the main forms of security over moveable and immoveable property and how are they given legal effect?
The most common forms of security are mortgages and fixed or floating charges.
A mortgage is a form of fixed security by way of a transfer of title to an asset subject to a right of re-transfer (ie, the 'equity of redemption'). A mortgage must be in writing and executed as a deed, and is subject to certain registration requirements.
A fixed charge is also a form of fixed security and involves no transfer of legal or beneficial title, but is an encumbrance on an asset. A fixed charge is created over an ascertainable asset, over which the lender will have a degree of control (eg, the right to consent before the asset is sold).
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Originally published in Lexology Navigator
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.