REPORT ON THE COMPANY
DIRECTORS DISQUALIFICATION
BILL (NIA BILL 15/01)
SESSION 2001/2002 SEVENTH REPORT
Ordered by The Committee for the Enterprise, Trade and Investment to be printed 29 July 2002
7/01R (Committee for Enterprise, Trade and Investment)
COMMITTEE FOR ENTERPRISE, TRADE AND INVESTMENT
TOGETHER WITH THE MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT AND THE MINUTES OF EVIDENCE
COMMITTEE FOR ENTERPRISE, TRADE AND INVESTMENT:
MEMBERSHIP AND POWERS
The Committee for Enterprise, Trade and Investment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Assembly Standing Order No 46. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Enterprise, Trade and Investment and has a role in the initiation of legislation.
The Committee has power to:
- consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
- approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
- call for person and papers;
- initiate enquiries and make reports;
- consider and advise on matters brought to the Committee by the Minister of Enterprise, Trade and Investment.
The Committee was established on 29 November 1999 with 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.
The membership of the Committee is as follows:
Mr Pat Doherty (Chairperson)
Mr Sean Neeson (Deputy Chairperson)
| Mr Billy Armstrong* | Dr Alasdair McDonnell |
| Mr Wilson Clyde | Ms Jane Morrice |
| Mrs Annie Courtney* | Dr Dara O'Hagan |
| Mr David McClarty | Mr Jim Wells* |
| Mr Eugene McMenamin* |
*Mr Wells replaced Mr Campbell with effect from 3 October 2000
*Mrs Courtney replaced Ms Lewsley with effect from 29 January 2001.
*Mr Armstrong replaced Mr Shipley Dalton with effect from 24 October 2001.
*Mr McMenamin replaced Mr Attwood with effect from 18 February 2002.
The Report and Proceedings of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Northern Ireland Assembly website: archive.niassembly.gov.uk
All correspondence should be addressed to the Clerk to the Committee for Enterprise, Trade and Investment, Northern Ireland Assembly, Room 424, Parliament Buildings, Stormont, Belfast BT4 3XX.
Tel: (028) 9052 1230; Fax: (028) 9052 1063; e-mail: committee.enterprise@niassembly.gov.uk
TABLE OF CONTENTS
Report
Report on the Company Directors Disqualification Bill
Appendices
Appendix 1 - Minutes of Proceedings of the Committee relating to the Report
Appendix 2 - Minutes of Evidence
Appendix 3 - Written Submission
REPORT ON THE COMPANY DIRECTORS DISQUALIFICATION BILL
(NIA Bill 15/01)
GENERAL
Introduction
1. The Committee for Enterprise, Trade and Investment met on the dates given below to consider the Company Directors Disqualification Bill. The Bill was referred to the Committee for consideration in accordance with Standing Order 31(1) of the Northern Ireland Assembly after completing its Second Stage on 18 June 2002.
2. The Committee had before it the Company Directors Disqualification Bill and the Explanatory and Financial Memorandum to the Bill (NIA Bill 15/01) as introduced.
3. The Minister of Enterprise, Trade and Investment made the following statement under section 9 of the Northern Ireland Act 1998:
"In my view the Company Directors Disqualification Bill would be within the legislative competence of the Northern Ireland Assembly."
Purpose of the Bill
4. The prime purpose of the Bill is to introduce provision for disqualification of unfit directors by consent without the need for uncontested cases to be heard in Court. The Bill, which will include provisions for disqualification by administrative means, will bring Northern Ireland legislation into line with that introduced in Great Britain by the Insolvency Act 2000 on 2 April 2001.
Meetings Held
5. The Committee met to consider the Bill on the following date:
- 29 July 2002: clause-by-clause scrutiny of the Bill, Departmental Officials in attendance and consideration of Draft Report.
Evidence
6. The Minutes of Evidence for the meeting when the Bill was considered formally is given in Appendix 2.
7. The Committee wrote to 7 interested bodies on 22 April 2002 to seek their comments on the proposed Bill. One response was received from the Institute of Chartered Accountants in Ireland. The submission from the Institute is attached to this report at Appendix 3. The Institute welcomed the provisions contained in the Bill as they represented conformity with legislation in the rest of the United Kingdom.
Deliberations of the Committee
8. The Committee gave detailed consideration to each part of the Company Directors Disqualification Bill on 29 July 2002. The record of the Committee's deliberations can be found in Appendix 1 - Minutes of Proceedings and Appendix 2 - Minutes of Evidence.
9. The Committee carried out a clause-by-clause scrutiny on 29 July 2002 when the Bill was formally agreed.
10. The Committee considers that the provisions of the Bill, as introduced, are necessary to introduce provision for disqualification of unfit directors by consent without the need for uncontested cases to be heard in Court.
11. The Committee considers that no amendments are necessary to the Company Directors Disqualification Bill.
PAT DOHERTY MP MLA
Chairperson
APPENDIX 1
PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
MONDAY 29 JULY 2002 AT 10.42 AM IN
ROOM 144, PARLIAMENT BUILDINGS
Present: Mr P Doherty MP (Chairperson)
Mr S Neeson (Deputy Chairperson)
Mr B Armstrong
Mr W Clyde
Dr A McDonnell
Mr D McClarty
Ms J Morrice
Mr J Wells
Apologies: Mrs A Courtney
Mr E McMenamin
Dr D O'Hagan
In attendance: Mrs C White (Committee Clerk)
Mr M Anderson (Assistant Committee Clerk)
Mr R Anderson (Clerical Supervisor)
Miss A Fowler (Clerical Officer)
Mr H Widdis (Assembly Legal Adviser)
In attendance for the public evidence session at 10.47 am:
Mr M Bohill, Mr R Nesbitt, Mr J Reid, Ms J Broadway (Department of Enterprise, Trade and Investment).
The Committee agreed to open the meeting in public at 10.42am.
3. Company Directors' Disqualification Bill
Dr McDonnell left the meeting at 12.15pm.
3.1 The Committee carried out a detailed clause-by-clause scrutiny of the Company Directors' Disqualification Bill. The clauses were read along with the related commentary in the Explanatory and Financial Memorandum.
The Long Title was considered.
Agreed: that the Committee is content with the long title as drafted.
Clause 1 was considered.
Agreed: that the Committee is content with the clause 1 as drafted.
Clause 2 was considered.
Agreed: that the Committee is content with the clause 2 as drafted.
Clause 3 was considered.
Agreed: that the Committee is content with the clause 3 as drafted.
Clause 4 was considered.
Agreed: that the Committee is content with the clause 4 as drafted.
Mr Clyde rejoined the meeting at 12.20pm
Clause 5 was considered.
Agreed: that the Committee is content with the clause 5 as drafted.
Mr McClarty left the meeting at 12.21pm.
Clause 6 was considered.
Agreed: that the Committee is content with the clause 6 as drafted.
Clause 7 was considered.
Agreed: that the Committee is content with the clause 7 as drafted.
Clause 8 was considered.
Agreed: that the Committee is content with the clause 8 as drafted.
Clause 9 was considered.
Agreed: that the Committee is content with the clause 9 as drafted.
Clause 10 was considered.
Agreed: that the Committee is content with the clause 10 as drafted.
Mr McClarty rejoined the meeting at 12.40pm.
Clause 11 was considered.
Agreed: that the Committee is content with the clause 11 as drafted.
Schedule 1 was considered.
Agreed: that the Committee is content with the Schedule 1 as drafted.
Clause 12 was considered.
Agreed: that the Committee is content with the clause 12 as drafted.
Clause 13 was considered.
Agreed: that the Committee is content with the clause 13 as drafted.
Clause 14 was considered.
Agreed: that the Committee is content with the clause 14 as drafted.
Dr McDonnell rejoined the meeting at 12.45pm.
Clause 15 was considered.
Agreed: that the Committee is content with the clause 15 as drafted.
Clause 16 was considered.
Agreed: that the Committee is content with the clause 16 as drafted.
Clause 17 was considered.
Agreed: that the Committee is content with the clause 17 as drafted.
Clause 18 was considered.
Agreed: that the Committee is content with the clause 18 as drafted.
Clause 19 was considered.
Agreed: that the Committee is content with the clause 19 as drafted.
Clause 20 was considered.
Agreed: that the Committee is content with the clause 20 as drafted.
Clause 21 was considered.
Agreed: that the Committee is content with the clause 21 as drafted.
Clause 22 was considered.
Agreed: that the Committee is content with the clause 22 as drafted.
Clause 23 was considered.
Agreed: that the Committee is content with the clause 23 as drafted.
Clause 24 was considered.
Agreed: that the Committee is content with the clause 24 as drafted.
Clause 25 was considered.
Agreed: that the Committee is content with the clause 25 as drafted.
Schedules 2,3 and 4 were considered.
Agreed: that the Committee is content with Schedules 2,3 and 4 as drafted.
Clause 26 was considered.
Agreed: that the Committee is content with the clause 26 as drafted.
Clause 27 was considered.
Agreed: that the Committee is content with the clause 27 as drafted.
3.2 The Committee discussed the content of the draft report on the Company Directors' Disqualification Bill.
Agreed: The draft report on the Company Directors Disqualification Bill and ordered it to be printed.
[EXTRACT]
APPENDIX 2
MINUTES OF EVIDENCE
MINUTES OF EVIDENCE
Monday 29 July 2002
Members present:
Mr P Doherty MP (Chairperson)
Mr S Neeson (Deputy Chairperson)
Mr B Armstrong
Mr D McClarty
Dr A McDonnell
Ms J Morrice
Mr J Wells
Witnesses:
Mr M Bohill ) Departmental officials
Ms J Broadway
Mr R Nesbitt
Mr J Reid
1.
The Chairperson: I welcome Mr Bohill, Ms Broadway, Mr R Nesbitt and Mr Reid from the Department of Enterprise, Trade and Investment. The purpose of this meeting is to now carry out a detailed clause-by-clause scrutiny of the Company Directors' Disqualification Bill. Members will have the opportunity to raise any concerns or suggest any amendments.
2.
Members should read the relevant clauses and paragraphs in the Bill and the related commentary in the memorandum. The Bill has 27 clauses and four schedules. Each clause and subsection will need to be considered in turn. The Committee will have two options - to agree that the Committee is content with the clause as drafted; or to agree that the Committee recommend to the Assembly that a clause be amended.
3.
The Bill is to introduce provision for disqualification of unfit directors by consent, without the need for uncontested cases to be heard in court. It also consolidates the Companies (Northern Ireland) Order 1989 and the various amendments that have been made to it since it came into effect in 1991. The Bill will include provisions for disqualification by administrative means, and it will bring Northern Ireland legislation into line with that introduced in Great Britain by the Insolvency Act 2000 on 2 April 2001. The Long Title is explained on page one of the Bill.
4.
The Long Title of the Bill is:
"A Bill to amend and consolidate provisions relating to the disqualification of persons from being directors of companies, and from otherwise being concerned with a company's affairs."
5.
Question, That the Committee is content with the Long Title, put and agreed to.
Clause 1 ( Disqualification Orders: General)
6.
The Chairperson: Clause 1 is explained on page one of the Bill and pages five to six of the explanatory and financial memorandum. It defines and sets out circumstances in which a disqualification Order may be made; provides that there is a maximum and minimum period of disqualification under such an Order; establishes a time after the making of the Order on which the period of disqualification begins; and makes it clear that disqualification proceedings may go ahead independently of any separate criminal prosecution which might be brought.
7.
Question, That the Committee is content with the clause, put and agreed to.
Clause 2 ( Disqualification Undertakings: General)
8.
The Chairperson: The clause is explained on page two of the Bill and on page six of the explanatory and financial memorandum. It makes provision for directors whom the Department considers unfit to consent to a period of disqualification without the need for court involvement, by giving a disqualification undertaking to the Department. The period of disqualification would be for a maximum of 15 years in cases where the company has become insolvent or where an inspector has been appointed to investigate its affairs.
9.
Question, That the Committee is content with the clause, put and agreed to.
Clause 3 ( Disqualification on conviction of offence punishable only on indictment or either on conviction on indictment or on summary conviction)
10.
The Chairperson: The clause is explained on page two of the Bill and page six of the explanatory and financial memorandum. It provides that disqualification Orders may be made against persons convicted on indictment or convicted summarily of an offence for which they could have been tried on indictment in relation to the promotion, formation, management, liquidation, striking off, or the receivership of a company or its property.
11.
Question, That the Committee is content with the clause, put and agreed to.
Clause 4 (Disqualification for persistent default under companies legislation)
12.
The Chairperson: The clause is explained on pages two and three of the Bill and on page seven of the explanatory and financial memorandum.
13.
The clause provides for the making of a disqualification Order against a person who has been persistently in default in relation to companies legislation requiring the delivery of documents to the Registrar of Companies.
14.
Question, That the Committee is content with the clause, put and agreed to.
Clause 5 (Disqualification for Fraud etc, in Winding Up)
15.
The Chairperson: Clause 5 is explained on page three of the Bill and page eight of the explanatory and financial memorandum. It makes provision for the making of a disqualification Order by the High Court during the winding up of a company where a person appears to be guilty of fraudulent trading under article 451 of the Companies (Northern Ireland) Order 1986 or fraud in relation to, or in breach of duty to, a company while an officer, liquidator, receiver or administrative receiver of the company's property.
16.
Question, That the Committee is content with the clause, put and agreed to.
Clause 6 (Disqualification on Summary Conviction of Offence)
17.
The Chairperson: Clause 6 is explained on pages three and four of the Bill and pages eight and nine of the explanatory and financial memorandum. The clause empowers a court of summary jurisdiction to disqualify any person whom it convicts of a summary offence in relation to making returns to the registrar on the occasion of a person's conviction of a third offence in five years.
18.
Question, That the Committee is content with the clause, put and agreed to.
Clause 7 - Duty of High Court to Disqualify Unfit Directors of Insolvent Companies
19.
The Chairperson: The clause is explained on page four of the Bill and pages nine and 10 of the explanatory and financial memorandum. It requires the High Court to make a disqualification Order against a director for a minimum of two and a maximum of 15 years, and gives the High Court guidance on the matters to be considered when an application for disqualification is made.
20.
Question, That the Committee is content with the clause, put and agreed to.
Clause 8 - Disqualification Order or Undertaking; and Reporting Provisions
21.
The Chairperson: Clause 8 is explained on page five of the Bill and pages 10 and 11 of the explanatory and financial memorandum. The clause makes provision for the Department to apply for a disqualification Order in any case where the company has become insolvent and sets time limits for the application. It introduces a new provision allowing any person to give an undertaking in lieu of disqualification proceedings under clause 7. Any such undertaking will have the same effect and contravention of it will incur the same sanctions as if a disqualification Order had been made by the High Court.
22.
Mr Wells: The public is aware of a disqualification being made if a company goes to court, but how will the public know about a disqualification Order in this instance?
23.
Mr R Nesbitt: There are no advertising provisions in the Bill, but in the past 11 years that the Department has been dealing with directors' disqualification there have been press releases.
24.
Mr Wells: Therefore if it were covered in the press, the public would know to avoid "Fred Smyth". If it were not covered in the press, the public would have no way of knowing. Is it published in the 'Belfast Gazette'?
25.
Mr R Nesbitt: No, but the 'Belfast Telegraph' does print it, and there is a public register.
26.
Mr Wells: So this is a less public way of letting people know that a company should be avoided.
27.
Ms Broadway: Under the current system, disqualification Orders are not printed in the Gazette.
28.
Question, That the Committee is content with the clause, put and agreed to.
Clause 9 (Disqualification after Investigation of Company)
29.
The Chairperson: Clause 9 is explained on page six of the Bill and page 11 of the explanatory and financial memorandum. The clause enables the High Court, on the application of the Department, to make a disqualification Order against a person whose conduct appears to be unsatisfactory in relation to his involvement in the management of a company as a result of reports made by inspectors under provisions of the companies legislation or the Financial Services and Markets Act 2000. This also extends to open-ended investment companies.
30.
Mr Wells: Fred Smith might go bust and his company leave a string of creditors; the following week a new company called Mrs Fred Smith 2002 emerges doing the same business but with a new director. Does the term "shadow director" apply to that example?
31.
Ms Broadway: Company directors are obliged to act upon a shadow director's instructions. "Shadow director" is defined in the Bill as a person in accordance with whose directions or instructions the directors of the company are accustomed to act.
32.
Mr Wells: Does that include a family member?
33.
Ms Broadway: It could.
34.
Mr Wells: Who will decide whether it does?
35.
Mr Bohill: That depends on the evidence. The court would decide. A person may de facto act as though he or she is a director.
36.
Mr Wells: Would that happen even if that individual did not have previous connections with the company? I know of a road haulage company in south Down that has gone belly up. The son, who had no previous connection with the company, has been appointed the director of the new company. The debts have been swept under the carpet and the company continues to trade. Given that the father can no longer be the director, the son is acting as a frontman. Will the term 'shadow director' prevent such a situation?
37.
Mr Reid: That depends on the situation. If the father was disqualified when in charge of the first company and he were to act as a director in the successor company, a court could find him guilty of an offence.
38.
Mr Wells: The father has no official connection with the new company. However, a young lad has suddenly become its director. Everyone knows that the father runs the company, whereas the son, who had no previous connection with the old company and was not implicated in its bankruptcy, is the frontman.
39.
Mr R Nesbitt: It depends on what really happened in the first company. If disqualification proceedings are taken in relation to the first company, in which the father was involved, he will be debarred. If a creditor provides me with evidence that the father is the director of the new company and signs its cheques, or I receive evidence of that from another source, the father has a problem.
40.
Mr Wells: The father runs the company in every way, save that he does not sign anything and his name is not on the company's headed notepaper. However, records held by Companies Registry show that the son, who is very young, is a director and that his wife is another director. As they were not involved with the original bankruptcy they could not be seen to have been shadow directors in the previous company.
41.
Mr R Nesbitt: It is a difficult situation. The outcome depends on the evidence that is gathered and whether creditors are prepared to come forward and state that the father, rather than the son, is running the company.
42.
Mr Armstrong: It would need to be proven that the father is receiving a salary from the company as an employee.
43.
Mr Wells: If you modified the Order to state that no close relative or cohabitee of a disqualified director would have any right to continue to trade in a similar capacity in a similar company, the problem would cease. When the world and his dog know what is going on, the situation is difficult for creditors.
44.
Mr R Nesbitt: That goes into the area of restrictions on trade and, perhaps, human rights.
45.
Mr Reid: The Order might not provide the necessary restrictions. The close relative could still operate as a sole trader, not through the medium of a limited company.
46.
Mr Wells: The difficulty is that these people previously did not have the remotest connection with the company, except that they happen to be a relative of the bankrupt director. Suddenly, by an amazing coincidence, the week after the company went under, they take an almost evangelical interest in the activities of the previous company. I know of a kitchen company that went bust, leaving a string of debts and ruining several small companies. Suddenly the wife, who had no idea of how to make a kitchen, has become the director of a company with practically the same name as the original. That Order will not stop such practice.
47.
Mr R Nesbitt: It is all about evidence. The situation that you outlined is fraught, and we could do little about it. It depends on someone coming forward and giving us evidence. We have no right to act against the new company, unless it has taken over the assets of the old company. However, the liquidator of the old company must investigate where the assets went.
48.
If they are using the same assets, and have not provided consideration, they will be investigated. He could well lose the new company because of that.
49.
Mr Reid: The Bill is designed to address the means by which a director can be disqualified, but it is not in parity with legislation to address that issue. You refer to relatives who act as a front for a director of a failed company.
50.
Mr Wells: If disqualification is to mean anything, it must mean that that person cannot benefit from the fruits of his dishonesty for up to 15 years. This way of getting round it means, effectively, that disqualification is something of a farce. You would be amazed at what goes on in the north of Ireland with its extended families.
51.
Ms Broadway: In any case, if that second company did sink into insolvency, there would be a full investigation into the directors. There have been quite a few cases of disqualification of someone who was not a named director of a company but who was found to be a shadow director.
52.
Mr R Nesbitt: If a disqualified director acts as a shadow director and a new company is formed, he commits a criminal offence.
53.
Mr Wells: The onus is upon a creditor to prove that.
54.
Mr R Nesbitt: That may well be.
55.
Mr Wells: Can the Department sue him?
56.
Mr R Nesbitt: No.
57.
Ms Morrice: I want to understand. When a director is disqualified with a string of debts and his wife or child sets up a company with a new name, do those debts pertain to the new company?
58.
Mr R Nesbitt: They should not do so, because if the former company has gone into liquidation its debts will have been dealt with.
59.
Ms Morrice: What about the assets of the former company?
60.
Mr R Nesbitt: It is up to the liquidator, trustee or whoever to investigate that situation.
61.
Mr Reid: The assets should not be transferred to the successor company unless payment for value is made to the first company.
62.
Mr R Nesbitt: That is proper consideration.
63.
Mr Wells: It must be remembered that this is a distress sale situation where the assets can be picked up for a song.
64.
Mr Reid: Is there not also a restriction of law?
65.
Mr R Nesbitt: There must be evidence, and a creditor or anyone with evidence of what you suggest can put it to the Department, who may well appoint inspectors to investigate the company. That is a possibility.
66.
Mr Bohill: It does not necessarily need to be a creditor. If we have reasonable grounds for believing that a disqualified director was acting as a shadow director in any company, previously connected or otherwise, we can appoint inspectors to investigate. If that is found to be the case, it is a criminal offence.
67.
Mr Wells: How often are offenders caught?
68.
Mr R Nesbitt: Quite a few are, and not on the basis of an inspection.
69.
Ms Broadway: Under the normal disqualification system there have been numerous cases in which, when the Department investigated, it was discovered that the named directors were not running the company. Often a husband or a father would act as a shadow director.
70.
Mr R Nesbitt: Among the three or four directors of a company, someone will say that he was not responsible for running the company, and that he took orders. Provided that that is put on paper, the issue of shadow directorship emerges.
71.
Mr Wells: What is wrong with disqualifying immediate family members from taking up similar directorships? I do not mean disqualification from holding directorships in something unrelated to the previous company, because that would be totally wrong. However, if a kitchen company goes bust and suddenly the wife becomes the director of a kitchen company with exactly the same name and minor changes, surely it is not against human rights to prevent that happening?
72.
Mr R Nesbitt: It might be, and it may also impact on restraint of trade.
73.
Mr Armstrong: That would be unfair if a son was a minor, but on maturity had better qualifications and took up a similar operation to that of his father.
74.
Mr Wells: The problem is that this happens within a week of a company going bust. The son suddenly becomes a kitchen magnate, a road haulier or owner of a security firm. Those are the three types of companies where this happens all the time, and it is absolutely sickening for creditors to watch the company trading quite normally, while the whole world and his dog knows that "Fred Smith" is pulling the strings. That is the greatest weakness in disqualification, and we have no mechanism to stop that happening. It is legendary in Northern Ireland, and I am sure that the Department is aware that this is happening everywhere.
75.
Mr R Nesbitt: I sympathise with your views, but to disqualify the new persons who become involved - even though they may be family members - might discriminate against them.
76.
Mr Reid: It could also be argued that that would be a case of finding an innocent person guilty. The conduct of the son or wife may not have been, in any sense, reprehensible in relation to the first company - indeed, they may not have been involved in it at all. If they are given a chance with a fresh company, there is obviously a risk that the shadow of the relative or the father might control them. Equally, as for preventing them from setting up a company - and perhaps making a success of it - you would have to apply that to everyone, whether or not the relative was behind them.
77.
Mr Wells: It is more difficult to do it beyond immediate family, because that becomes very restrictive, but if you cracked down on close relations you would cut out a lot of the shenanigans occurring at present.
78.
Mr R Nesbitt: This is a fraught area. We certainly know about these types of cases, and we are mindful of them. However, what our powers are and what we can do is really restricted by law.
79.
The Chairperson: Are you making any formal proposals, Mr Wells?
80.
Mr Wells: It is an awful pity, given that this is the first opportunity for the Assembly to deal with this flagrant and common breach of company legislation in Northern Ireland. Perhaps it is my rural bias, but in rural parts of south Down everybody knows what is happening with this. It is a scam, which the whole community knows about, but there is no way of proving it. The only way to stop it is to say that if your company goes bust, you and your immediate family are precluded from setting up a similar company for a certain period. It is fine if they want to do something else, but when it is clearly a phoenix-like resurrection of a company that has gone bust, then it is obvious what is going on to everyone. I do not see how that is restraint of trade. I know of one company that has resurrected itself four times with four different members of the family. What an amazing coincidence that all four of them suddenly took an interest in security services.
81.
Mr Bohill: We all have sympathy with what is being said. I would reinforce the point that where there is explicit evidence, or grounds for believing that such a thing was happening, then the Department will act upon it. What is giving us food for thought is that there are particular sectors where we might be more proactive in investigating circumstances such as these. I am happy to take this on board.
82.
The Chairperson: Is the Committee content with clause 9?
83.
Mr Wells: I am not happy.
84.
Ms Morrice: Several Members are concerned. Does this centre on the definition of a shadow director? Is there an amendment that might serve the purpose that Mr Wells is looking for, but which would not be a restrictive practice?
85.
Mr Bohill: I feel that we are not talking about the legislation being restrictive, but about how we apply the legislation. We will review that application of the legislation. Picking up on Mr Wells' point, there may be particular sectors or types of business in which we might examine more carefully what is going on.
86.
Ms Morrice: What about the whistleblowing aspect?
87.
Mr Bohill: The service is open to those who wish to alert it to what is going on.
88.
Question, That the Committee is content with the clause, put and agreed to.
Clause 10 ( Variation etc. of disqualification undertaking)
89.
The Chairperson: This clause allows the High Court, on the application of a person who is the subject of a disqualification undertaking to reduce its period or provide that it ceases to be in force.
90.
Question, That the Committee is content with the clause, put and agreed to.
Clause 11 (Matters for determining unfitness of directors)
91.
The Chairperson: This clause directs the High Court to consider the matters contained in Schedule 1 (Matters for Determining Unfitness of Directors) when contemplating the making of a disqualification Order against a person.
Schedule 1 ( Matters for determining unfitness of directors)
92.
Schedule 1 sets out the matters which the Court should consider when deciding whether to make a disqualification Order against any person.
Part 1: Matters applicable in all cases
93.
Part 1 of this Schedule provides that in all cases there is a list of matters that are deemed significant in determining the unfitness of directors.
Part II: Matters applicable where the company has become insolvent
94.
The purpose of this Part is to define the matters of unfitness that apply in a case where the company has become insolvent.
95.
Question, That the Committee is content with the clause and the schedule, put and agreed to.
Clause 12 (Participation in wrongful trading)
96.
This clause allows the High Court to make a disqualification Order against a person involved in wrongful trading.
97.
Question, That the Committee is content with the clause, put and agreed to.
98.
Mr Wells: That will shut down Nutt's Corner market.
Clause 13 (Undischarged bankrupts)
99.
This clause automatically prohibits an undischarged bankrupt from participation in the management of a company either directly or indirectly.
100.
Question, That the Committee is content with the clause, put and agreed to.
101.
Mr Armstrong: That covers Mr Wells's concerns.
102.
The Chairperson: Clause 14 (Failure to pay under administration Order)
103.
This clause automatically prohibits anyone who is subject to an Order from the Enforcement of Judgements Office for the administration of his estate for the benefit of all his creditors and who has defaulted on and had that Order revoked from participation in the management of a company either directly or indirectly.
104.
Question, That the Committee is content with the clause, put and agreed to.
Clause 15 (Persons disqualified in Great Britain)
105.
This clause provides that a person against whom a disqualification Order is made or who is subject to a disqualification undertaking under the Company Directors Disqualification Act 1986 in Great Britain, is automatically banned from being a director of a company; acting as receiver of a company's property; acting as an insolvency practitioner; or being in any way, directly or indirectly, concerned or taking part in the promotion, formation or management of a company unless the Court provides otherwise.
106.
There is corresponding provision in the Great Britain legislation to disqualify a person who is the subject of a disqualification Order in Northern Ireland.
107.
Ms Morrice: Does this mean simply that someone disqualified in Great Britain cannot operate in Northern Ireland and vice-versa? What about other parts of the European Union? Can such people operate in the South of Ireland or in France?
108.
Mr R Nesbitt: It applies merely to the United Kingdom.
109.
Mr Wells: So someone who has been disqualified in the Irish Republic could operate in Northern Ireland, which in a border area might mean crossing a field.
110.
Mr Bohill: Yes.
111.
Ms Morrice: And someone disqualified in Northern Ireland could operate in the South?
112.
Mr R Nesbitt: Yes.
113.
Mr Wells: Is there no European treaty, understanding or memorandum on the issue?
114.
Mr R Nesbitt: European legislation has not extended that far. The only development in the European Union has been the convention which deals with cross-border insolvency. Certainly nothing has been discussed regarding the disqualification of directors in the European Union.
115.
Ms Morrice: And European company law does not cover the issue?
116.
Mr R Nesbitt: No.
117.
Ms Morrice: Given our circumstances in these islands, I suppose that such bodies as InterTrade Ireland would be very interested in this type of North/South issue.
118.
Ms Broadway: I am not sure whether disqualification currently exists in the Republic of Ireland. I believe its Government is considering introducing that penalty. They sent officials up to discuss our own disqualification legislation with us.
119.
Mr R Nesbitt: A new corporate body has been set up in the South. The officials wished to speak to us more in relation to company inspections. However, they were also very interested in our procedures for disqualifying directors, the register itself and the use of information technology in their administration.
120.
Mr Neeson: The point raised by Ms Morrice and Mr Wells is of such validity that the Northern Ireland Executive Office in Brussels should deal with it to see whether parity legislation might not be introduced whereby the same legislation would apply to all regardless of country. That office is the appropriate channel for the question.
121.
Mr R Nesbitt: I believe that there is selective disqualification in the Republic of Ireland, whereby if a liquidator refers a matter to the relevant body, it can exercise its power to disqualify the person involved. However, that obviously happens only in a small number of cases. Liquidators are quite selective in what they examine, and not all of them make reports. That is the best information that I can give without studying the legislation further.
122.
Ms Morrice: There are similar problems with driving offences. If one is disqualified from driving in one country, one is not necessarily disqualified in another. Those things need changing, and this is a similar vein that Brussels should perhaps investigate.
123.
Mr Wells: One area in which insolvency is a frequent problem is road haulage. It is a cut-throat, dog-eat-dog industry, and many such companies have now registered themselves in the Irish Republic because of the excise duty and the fuel duty. One could therefore have a situation whereby disqualified directors of de facto Northern Ireland companies which are based, for the sake of argument, in Dundalk, can continue to run them. Friday night's 'Belfast Telegraph' will tell you how many haulage companies are going bust; it is frightening. I find it strange that more thought has not been given to the matter, for it is an increasing problem.
124.
Clause 15 referred for further consideration.
Clause 16 (Offences)
125.
This clause provides that contravention of a disqualification Order, or of clauses 13: "Undischarged bankrupts"; 14(2): "Administration of a debtor's estate for the benefit of all his creditors"; or 15: "disqualified in GB"; is an offence punishable on summary conviction by a maximum of 6 months imprisonment or a fine or both or, on indictment, by a maximum of 2 years imprisonment or a fine or both.
126.
Mr Neeson: Is that just parity with the GB legislation?
127.
Ms Broadway: Yes.
128.
Question, That the Committee is content with the clause, put and agreed to.
129.
The Chairperson: Clause 17 (Personal liability for company's debts where a person acts while disqualified).
130.
See pages 8 to 9 in the Bill and page 14 in the explanatory and financial memorandum. This clause imposes personal liability without limit for the debts of a company on people or their nominees who act while disqualified or bankrupt.
131.
Question, That the Committee is content with the clause, put and agreed to.
Clause 18 (Application for disqualification Order).
132.
See pages 9 to 10 in the Bill and page 15 in the explanatory and financial memorandum. This clause provides for 10 days' notice of intent to apply for a disqualification Order; specifies who may apply for the Order; and allows the applicant to appear and call the attention of the court to any matters which seem to be relevant and to call witnesses.
133.
Question, That the Committee is content with the clause, put and agreed to.
Clause 19 (Application for leave under an Order or undertaking).
134.
See page 10 in the Bill and page 15 in the explanatory and financial memorandum. This clause requires the Department to appear at an application for leave to act as a director, call the attention of the Court to any matters which seem relevant and may give evidence or call witnesses.
135.
Question, That the Committee is content with the clause, put and agreed to.
Clause 20 (Register of disqualification Orders and undertakings).
136.
See page 10 to 11 in the Bill and pages 15 to 16 in the explanatory and financial memorandum. This clause enables the public to identify persons who have disqualification Orders made against them or who have given disqualification undertakings by continuing the register provided for in the Companies Order 1986 and bringing forward into the new legislation the rules for maintaining the register.
137.
Question, That the Committee is content with the clause, put and agreed to.
Clause 21 (Admissibility in evidence of statements)
138.
See page 11 in the Bill and page 16 in the explanatory and financial memorandum. This clause defines the basis on which statements may be used in evidence in proceedings under clauses 7 to 12 or 17 or schedule 1, i.e. civil proceedings, and prohibits their use in criminal proceedings unrelated to insolvency.
139.
Question, That the Committee is content with the clause, put and agreed to.
Clause 22 (Interaction with the Insolvency Order)
140.
See pages 11 to 12 in the Bill and pages 16 to 17 in the explanatory and financial memorandum. This clause provides that certain provisions of the Insolvency Order should be read as one with certain provisions of this Bill and specifies that certain provisions of this Order bind the Crown.
141.
Question, That the Committee is content with the clause, put and agreed to.
Clause 23 (application of Act to incorporate friendly societies).
142.
See page 12 in the Bill and page 17 in the explanatory and financial memorandum. This clause provides that the provisions for disqualification of directors of companies also apply to directors of incorporated friendly societies.
143.
Ms Morrice: Can I have a definition of "friendly society"?
144.
Mr R Nesbitt: A non-profit making operation, such as a co-operative society.
145.
Ms Morrice: Are non-profit making, non-governmental organisations friendly societies?
146.
Mr McClarty: Is a friendly society not a society that provides assurance of non-profit making, door-to-door collection of insurance, which covers people for a weekly premium?
147.
Mr Bohill: It is defined in the legislation at clause 23(2). References to an incorporated friendly society are within the meaning of the Friendly Societies Act 1992. It is not an industrial provident society.
148.
Ms Morrice: Does it simply cover insurance, as Mr McCarty suggested; or is it a credit union or non-provident society?
149.
Mr Bohill: It is certainly not a credit union, nor an industrial or provident society. However, I am not entirely sure how it is defined in that Act. The Department will find out and will let the Committee know.
150.
Question, That the Committee is content with clause 23, put and agreed to.
Clause 24 (Interpretation)
151.
The Chairperson: This clause provides for the definition of various terms used in the Bill.
152.
Question, That the Committee is content with clause 24, put and agreed to.
Clause 25 (Transitional Provisions, Savings, Amendments and Repeals)
153.
The Chairperson: This clause provides for transition from previous legislation to this Bill including provisions, savings, amendments and repeals.
Schedule 2 (Transitional provisions and savings)
154.
The Chairperson: Schedule 2 makes provision for the transition from the previous legislation to this Bill.
Schedule 3 (Consequential Amendments)
155.
The Chairperson: Schedule 3 makes provision to amend specified legislation so that should the Bill be enacted the Companies Order (NI) 1989 Part II and Schedules 1 to 3 will be removed and replaced by references to this Bill.
Schedule 4 (Repeals)
156.
The Chairperson: Schedule 4 lists the legislation repealed by this Bill when enacted.
157.
Question, That the Committee is content with clause 25, put and agreed to.
Clause 26 (Commencement)
158.
The Chairperson: This clause provides for the Act to come into operation at such time as may be specified by Order.
159.
Question, That the Committee is content with clause 26, put and agreed to.
Clause 27 (Short Title)
160.
The Chairperson: This clause gives the short title of the Bill.
161.
Question, That the Committee is content with clause 27, put and agreed to.
162.
The Chairperson: There are eleven paragraphs in Tab H on the matter, which I will sign on behalf of the Committee. I will not read out those paragraphs. I will go through each section. The introduction has three paragraphs. Paragraph 4 outlines the purpose of the Bill. Paragraph 5 is about meetings held. Paragraphs 6 and 7 are about evidence. Paragraphs 8, 9, 10 and 11 are about the Committee's deliberations.
163.
Mr McClarty: In paragraph 9, the date should be 29 July, not 31.
164.
The Chairperson: Well spotted, Mr McClarty.
165.
Mr Wells: Considering how this meeting is going, we could still be here on 31 July.
166.
The Chairperson: Originally, we put aside 29 and 31 July. However, we will not need the second day.
167.
The Deputy Chairperson: Subject to the date change, that is agreed.
168.
The Chairperson: Mr Neeson has proposed that Tab G, which consists of the written submissions that we received, be included in the report. Is that agreed?
Report ordered to be printed.
169.
Dr McDonnell: What is the situation with the previous Bill? It cannot be printed until the remaining issue is cleared? That is fine.
170.
The Chairperson: Have we any information on timescales? Can we meet in September?
171.
The Committee Clerk: We can.
172.
The Chairperson: Thank you for your attendance and for your detailed answers to the questions.
WRITTEN SUBMISSION
THE INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND
3 July 2002
DIRECTORS DISQUALIFICATION BILL
The above named Bill has been considered by the Insolvency Technical Committee of the Institute of Chartered Accountants in Ireland who wish to express their appreciation at having the opportunity to do so.
The Institute having responded to the Consultation Document Proposals for a new Directors Disqualification have no additional comments to make. We attach a copy of our original submission for your information.
As a general comment the Institute would like to stress its continuing support for conformity of the legislative requirements in Great Britain and Northern Ireland and hopes the approach adopted by the Assembly in this instance will continue.
Should you wish to discuss these matters in greater detail with members of our Committee please do not hesitate to contact me.
JOHN BOWEN-WALSH
Secretary
Insolvency Technical Committee
PROPOSALS FOR A NEW DIRECTORS DISQUALIFICATION ACT
COMMENTS BY THE INSTITUTE OF CHARTERED ACCOUNTANTS IN
IRELAND ON THE CONSULTATION PAPER ISSUED IN JULY 2001
QUESTIONS ON WHICH COMMENTS WERE SOUGHT
Do you agree with the concept of disqualification through the giving of a legally binding undertaking by the person to be disqualified, or do you think that disqualification should always be by Court Order? If you think that disqualification should only be by Court Order, please state your reasons.
The Institute agrees with the proposed amendments to the existing legislation allowing for the disqualification of directors by way of a legally binding agreement. We believe that recourse to the Courts should be required only as the last resort.
Matters on which clarification is sought
Having provided our comments on the questions contained in the document we have a number of concerns on which we would appreciate your comments.
(i) Will the advertisement of the making of and the grounds for a disqualification still be advertised as a matter of public record.
(ii) It would appear that a person subject to a disqualification order could still act as an administrative receiver. We do not believe that such an exception should be made.
(iii) Could you confirm that the existence of a voluntary arrangement would neither prejudice a director in any subsequent legal proceedings nor preclude the insolvency practitioner from taking any further action in relation to a director's disqualification.
(iv) Are appropriate procedures in place to ensure that the Insolvency Service does not agree to a shorter disqualification period than appropriate simply due to time and/or cost constraints.