Compliance, Protective Orders & Disclosure Orders

Parts 13 / 14 – Restriction and Disqualification

If a company or an officer of the company has failed to comply with a provision of the Act, and has been notified of this by a member, creditor, the CRO or the DCE and has done nothing to fix the situation within 14 days of that notification, the Court may order that the situation be remedied, if any of those aforementioned parties make an application to it (Section 797).

The company or its officers may be fixed with the costs of the application.

The rule above does not apply if the wrong done to the company was one for which the company is the only proper plaintiff in an action.

Section 798 allows the court to make a Mareva-type injunction restraining directors from removing their assets, or the company’s assets, from the State. It will only do this if the applicant – standing is set out in subsection (3) – has a “qualifying claim”. That term means that the claim is a substantive civil cause or action, or a right to seek a declaration of personal liability against a director. The cause of action must arise under the Act, the company’s constitution, or from holding an office of the company.

A disclosure order is defined as being an order under Section 800.

Section 800 re-enacts some of Section 98 of the Companies Act 1990. Up to now, only persons who had a financial interest in the company could apply for a disclosure order. The new Act expands this rule to include the DCE.

The applicant may have to give security for costs.

If the DCE brings the application, he will not be able to avail of two of his powers – powers under Section 764 (appointing an inspector to investigate a company’s ownership) and the power to require information as to persons interested in shares or debentures under Section 767 – in so far as they relate to shares or debentures which are subject to a disclosure application.

• The types of disclosure orders which can be made, are set out in Section 801. This is a re-enactment of Section 98(1) of CA 1990.

• The procedure for making an application is set out in Section 802 and is a re-enactment of Section 99 of CA 1990. The only new element is a notice provision under subsection (2).

• The scope of the disclosure order is set out in Section 803, which is a re-enactment of Section 100 of CA 1990.

Sections 804, 805, 806, 807, 808 are re-enactments of provisions from CA 1990, as are Sections 810, 811, 812, 813, 814, 815, 816, and 817. Practitioners will recognise here parts of Sections 100, 72, 74, 73, 101, 102, 103, 104, and 98 of CA 1990.

The only new section among all of these is Section 809. It gives the Court supplemental powers in relation to share acquisition agreements, where it believes that all of the information sought to be obtained by the order will not be obtained by reason of a person who is a party (or former party) to a share acquisition agreement. The Court is given powers to compel others who may have the relevant information to give it.