Insolvency news

From the Professional Accountancy team…... Update of 16 July 2025 :the High Court put a stay on the restriction order for four months to give the directors time to organise their affairs. It is not yet clear if the directors will appeal the decision to restrict them . Background In the  case of Downtul Limited (in liquidation ) Patrick O'Connell, Ciaran Butler and Colum Butler the liquidator of Downtul Limited (“Downtul”) sought to have two directors (the Respondents) restricted for a period of 5 years from acting as director or secretary of a company. Downtul entered a lease (“Lease”) with Stephen Court Limited (landlord) in respect of a property from which a Starbucks outlet was operated. A separate related company (Atercin Liffey Unlimited Company, “Atercin”) operated the Starbucks. Downtul did not occupy or use the leased property and had no income, or means to generate income, to discharge the liabilities arising under the Lease, including rent. There was also no evidence of any enforceable mechanism for Downtul to recover monies from Atercin to meet its liabilities. Restriction of director -acting honestly & responsibly The case established that Downtul bore the liability and burden of the Lease. The separate related company Atercin occupied and traded from the property and earned revenue from that trade. At all times since the Lease was entered, Atercin and not Downtul had occupied the Property and operated the coffee shop throughout the term of the Lease.  There was no evidence of any agreement or consideration being given to the rights of Downtul. In allowing Downtul to enter and maintain these arrangements, and in failing to ensure an enforceable mechanism by which Downtul could obtain the funds necessary to discharge its liabilities as they fell due or otherwise protect its position, the Respondents failed to demonstrate responsible conduct with regard to the interests of Downtul as a separate legal entity within the Group. Mainly for the above reasons the judge was not satisfied the respondents has acted responsibly in conducting the affairs of Downtul. It was noted that a finding of illegality or unlawfulness is not required to restrict a director under S819. the fact that a transaction is not unlawful does not mean it is not relevant to assessing a director’s honesty or responsibility. The judge also said that the failure to keep proper accounting records, the omission of material disclosures from the financial statements and the failure to minute a single board meeting since 2017 are also – independently of her primary findings of irresponsibility – separate grounds on which she was not satisfied that the Respondents acted responsibly. As she was not satisfied that the Respondents acted responsibly with regard to the conduct of the affairs of Downtul the judge said she was mandated by section 819(2) to make the declaration of restriction sought by the Liquidator.   Accounting records and materiality/disclosure/corporate governance The judgement stated that there were no accounting records, disclosures in financial statements, or board minutes which even refer to the apparent arrangements between Downtul and Atercin. The financial statements make no reference to the Lease or to the receipt of monies from Atercin to pay the rent and other charges associated with the Starbucks property. This the court said underlines the lack of transparency in relation to the affairs of Downtul. Company accounts and records should contain a true and fair view of the company’s financial position. The case also considered the issue of disclosure of material transactions under FRS 102(1A) to ensure a “true and fair view” is given of the company’s financial position. The judge said that a responsible view of Downtul’s financial position would lead to the conclusion that the Lease and issues that arose with the landlord (rent suspension, legal proceedings) are matters that would be material for a user of the financial statements. The evidence and perspective of the Liquidator that these items collectively are material and significant for Downtul was accepted by the court. The judge found in the particular circumstances of Downtul, and the specific evidence adduced, the books that were kept were not sufficient to demonstrate a responsible approach by the Respondents to the maintenance of accounting records such as to enable compliance with section 282 of the Companies Act 2014. the fact that it is a small company or a company with limited activity does not provide an excuse or justification for not maintaining even a minimum record of Downtul’s transactions (quite apart from the more fundamental issues with Downtul’s interaction with Atercin). Finally, on the corporate governance side the judge noted that the Respondents chose to become directors of more than 170 and more than 200 companies respectively. Being a director of so many companies brings with it onerous and important responsibilities. She was not suggesting this is a light task when the Respondents are responsible for some 150- 200 companies, but it was the Respondents who made the decision to incorporate and direct the affairs of such a significant number of companies. The fact they have so burdened themselves cannot absolve them of the obligation to separately discharge the duties incumbent on them in each of those roles. The only question is whether they acted responsibly with regard to the affairs of Downtul. In the absence of any record of a meeting or decision with regard to Downtul from 2017 onwards, she simply could not be, and was not, satisfied in that respect. Conclusion The judgment contains an extensive examination of the grounds for restricting a director under section 819 of Companies Act 2014. There are other useful aspects to this judgment also, including for example an account of the relevant duties of expert witnesses. Readers should note that the judge found that the respondents discharged the burden of showing they acted honestly. However, because she found they had not acted responsibly this was enough to trigger the operation of the restriction provisions in section 819. It should also be noted that the directors have been restricted for 5 years, not disqualified. Restricted means that the person cannot act as a company director (or secretary) for 5 years unless the company of which they wish to be director has an allotted share capital of €100,000 (in the case of companies other than PLCs) with each allotted share to be paid for in cash. Readers can find out more about disqualification of directors in the Corporate Enforcement Authority’s very useful note on the subject CEA Information Note 2024/1 -Circumstances leading to disqualification under the Companies Act 2014 and the associated consequences. This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.                    

The CCAB-I Insolvency Committee has today published a new Creditors Voluntary Liquidation Statutory Meeting Handbook. The purpose of the Creditors Voluntary Liquidation (CVL) Statutory Meeting Handbook is to aid directors in the pre-appointment period and insolvency professionals in the post appointment period. This document provides a compendium of statutory meeting templates and guidance around the various meetings during the course of a CVL. It also assists Liquidators in complying with legislative and SIP requirements when conducting statutory meetings, reporting to creditors and approval of remuneration. Additionally, on 10 June, Derek Wilson, a licensed insolvency practitioner and experienced insolvency monitor, and Sarah-Jane O’Keeffe, director at Azets, along with Chartered Accountants Ireland are hosting a free webinar which will provide an overview of best practice and introduce the new Creditor Voluntary Liquidation workbook. To register for this free webinar, click here.  

The CCAB-I Insolvency Committee has recently published Technical Alert 03/2024 Succession Planning for Insolvency Practitioners. Insolvency appointments are taken in a personal capacity by an Insolvency Practitioner, who has an obligation to ensure that cases are properly managed at all times, and to have appropriate contingency arrangements in place to cover a change in the Insolvency Practitioner’s circumstances. This Technical Alert maps out a succession plan for an Insolvency Practitioner and covers some of the high-level considerations and discussion points to be considered by Insolvency Practitioners.

The Department of Enterprise, Trade and Employment has recently confirmed changes to the procedure for notifying the Minister of proposed collective redundancies, pursuant to section 12 of the Protection of Employment Act 1977, as amended. These changes took effect from 1 July 2024 and are on foot of: Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 S.I. 324 of 2024: Protection of Employment Act 1977 (Notification of Proposed Collective Redundancies) Regulations 2024 The following is a summary of the changes: All collective redundancies must be notified to the Minister, including where the employer is insolvent. This must be done by the employer or a responsible person (a Liquidator, Provisional Liquidator, Receiver or other court-appointed officer where the employer’s business is being wound up). Notifications may now be submitted electronically to minister@enterprise.gov.ie, as well as by registered post or hand delivery. Additional information is now required in a notification including the contact details of the employer or responsible person; and if the employer is a company, its CRO number. A new optional template form (Form CRN1) has been published to assist employers and responsible persons in complying with their obligations when notifying the Minister. Further information is available on Workplace Relations Commission webpage.

The Institute recently hosted a webinar on the Small Companies Administrative Rescue Process (SCARP) - Practical Issues. This discussion with David Swinburne and Philip Maher of Mazars included how to prepare for a SCARP, what to look out for and key matters to be aware of when considering the process. There was also discussion around some practical issues including how SCARP is working in practice, dealing with creditors and excludable creditors.  The recording is available here. 

Consultative Committee of Accountancy Bodies – Ireland (CCAB-I) Introduction to members of the Insolvency Committee Welcome to another edition of the series which will introduce members of the Consultative Committee of Accountancy Bodies – Ireland (CCAB-I) Insolvency Committee over the coming months. We hope to provide information on the work of the Insolvency Committee and insights into the careers and experience of our Committee members. Today we will hear from Shane McAleer. Shane is a Director in Insolvency at Somers Murphy & Earl with over 15 years of experience of advising on a variety of formal and informal restructurings. Shane jointed the CCAB-I Insolvency Committee in 2018. Tell us about your career to date and your route to being an Insolvency Practitioner I grew up in Belfast and from a young age worked with my Dad in the family business. I learned a lot of my good and bad business habits from Dad. As my wife would say “Shane has never paid full price for anything.” Accountancy, never mind Insolvency, was far from radar growing up. Sitting in a lecture theatre in St. Malachy’s College at 17 years old deciding what University courses I should apply for on my UCAS Form was a daunting thought. For some reason Accountancy was my decision. And, I have to say I have never looked back. During a summer term in University, I did some work experience in BDO Belfast where I was given my first taste of insolvency having worked on a few liquidations. Roll forward to 2000, I joined BDO Simpson Xavier where that piece of work experience landed me in the Restructuring department where my insolvency journey began. After qualifying as a Chartered Accountant in BDO, and a short stint in BDO Sydney, I moved to Moore Stephens Caplin Meehan and then Farrell Grant Sparks, finally ending up in Somers Murphy & Earl with Derek Earl. I took over the Insolvency practice in 2019 and business has been continually growing and developing.        Are you where you expected to be in your career? I can say that I am very happy with where I am in my career today. If anything, I have learned in my 24-year career to date is, to always expect the unexpected! What was the best career advice you got along the way? In two words “Stop” and “Listen.” Throughout my career I have been lucky to have worked in several practices and in each one got the benefit of working and learning alongside some of the most experienced insolvency practitioners in the country. Based on your own experience, what advice do you have for young professionals looking to build a career in corporate insolvency? In my experience working in Corporate Insolvency, no two days are the same. If you want to challenge yourself and develop new and broader skills, then Insolvency is a path worth considering. There are many paths to working in Corporate Insolvency you should consider a professional qualification which will give you a strong knowledge and basic skills base but more importantly the ability to grow and develop professionally. In today’s market many firms are looking for enthusiastic and energetic young professionals keen on building a career in corporate insolvency. How would you define your work style, and how has this evolved over the years? I am not sure I know what my style is! I am at heart a people person. Unfortunately, in our world of insolvency I come across a lot of difficult and emotional stories which has had an impact on my approach to dealing with people. Notwithstanding the emotional side of insolvency, it is important to have a structure and plan in place of what you need to do along with a realistic period of achieving your plan. In terms of managing teams and individuals, what are your insights and views? In Insolvency, everyone must ‘roll up their sleeves.’ In any assignment, it is important that there is clear delegation to the team and each person knows what their role is and reasons for what they are doing. Promoting and encouraging personal and professional development is essential. This should be worked one with each person on an individual basis to ensure that the best path forward is agreed upon. A person’s growth will not only benefit them personally but will provide additional skills to the team. What about communication and negotiating the typical ups and downs of working life? Effective communication is always important. Do not assume that someone knows or should know something. Whether you are communicating with someone or waiting on a response from someone be clear at all times of what your point is or what you require. Has networking played an important part in your career? Your reputation is key to any future success and building a career. Effective networking with the right contacts and people allows you access to the ability to get work and refer work and developing your reputation. Networking has been an essential part of my 24-year career, I am still in contact with many friends and colleagues who I trained and worked with along my career because you just never know where the next referral will come from. What is the current position with regards to the level of insolvencies in Ireland? If only I had a crystal ball! Covid, an energy crisis, interest rate increases, increased minimum wage, increased costs and €1.7bn of warehouse debt to be repaid. The current level of insolvencies based on the current climate appear low. From chatting with other insolvency practitioners there is an expectation that there will be more insolvencies, the question is when?   Disclaimer: The views of contributors to this series of articles may differ from official Institute and Consultative Committee of Accountancy Bodies - Ireland (CCAB-I) policies and are not necessarily endorsed by the Institute of Chartered Accountants in Ireland, its Council, its committees or any other person or entity associated with the Institute. The publishers, editor, and authors accept no responsibility for any errors or omissions or any loss resulting from any person acting, or refraining from acting, because of views expressed or advertisements appearing in this publication.

The CCAB-I Insolvency Committee has recently published Technical Alert - Cross Border Insolvency and Brexit. This Technical Alert considers the impact of Brexit on both the recognition of Irish Insolvency proceedings in the UK and the recognition of UK Insolvency proceedings in Ireland.

The CCAB-I Insolvency Committee has recently published Technical Release 01/2024 - Personal Insolvency (Amendment) Act 2021. This Technical Release outlines how the provisions of the Personal Insolvency (Amendment) Act, 2021 reflect practical amendments arising from Covid-19 and also the evolving nature of the existing legislation governing personal insolvency. The previous technical guidance document TA/02 2016 Personal Insolvency (Amendment) Act 2015 is still of relevance and guidance to members save for any amendments set out herein.

Readers may recall that during the pandemic the Irish government introduced temporary measures amending the Companies Act, 2014. The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 and regulations made under that Act provided for special measures for example for virtual meetings, execution of documents and temporary increase in the thresholds at which a company would be deemed to be unable to pay its debts during what was known as the “interim period”. While it seems that virtual AGMs are likely to become a permanent legislative provision (see here for our recent news item), other temporary measures continue to be  unwound by the government. In the most recent legislation, the measure which increased to in excess of €50,000 the amount at which a company is deemed to be unable to pay its debts in the interim period is not renewed. Therefore, beginning 1 January 2024, a company is deemed to be unable to pay its debts under section 570 of the 2014 Act where indebted to a creditor in an amount exceeding €10,000 or indebted to two or more creditors in an amount exceeding €20,000. This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.

The CCAB-I Insolvency Committee has today published Technical Alert 04/2021 Register of Beneficial Ownership of Companies and Industrial Provident Societies – Guidance for Insolvency Practitioners. This Technical Alert highlights the features of the Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies which are of particular importance to insolvency practitioners.  This guidance has been prepared on a practical basis and is intended to be of a practical nature.  This Technical Alert is available on our website.