S.I. No. 147/1991 - Rules of the Superior Courts (No. 3), 1991.

S.I. No. 147 of 1991.

RULES OF THE SUPERIOR COURTS (NO. 3), 1991.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48) and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 10th day of April, 1991.

Thomas A. Finlay,

Liam Hamilton

Anthony J. Hederman,

Declan Costello,

W. Brendan Allen,

David R. Pigot,

Michael M. Collins,

Edward F. Comyn.

I concur in the making of the annexed Rules of Court.

Dated this 17 day of June, 1991.

RAY BURKE,

Aire Dlí agus Cirt.

RULES OF THE SUPERIOR COURTS (No. 3), 1991.

1. The Rules of the Superior Courts shall be amended by the insertion of the following Order 75A after Order 75 of the Rules of the Superior Courts.

"ORDER 75A

PROCEEDINGS UNDER THE COMPANIES (AMENDMENT) ACT, 1990 (NO. 27 of 1990).

1. In this Order, unless the context or subject matter otherwise requires.

(1) "The Act" means the Companies (Amendment) Act 1990 (No. 27 of 1990).

(2) Words and expressions contained in this Order shall have the same meaning as in the Act and where necessary the same meaning as in the Companies Acts 1963-1990.

(3) "The 1986 Rules" means the Rules of the Superior Courts S.I. No. 15 of 1986 .

(4) "The Examiner" shall include the Interim Examiner.

2. All applications and proceedings for or in relation to an appointment of an examiner under the Act or concerning such examination shall be assigned to such Judge or Judges as the President of the High Court shall from time to time assign to hear such applications and proceedings, but if such Judge or Judges shall be unable to dispose of such applications or proceedings, any other Judge or Judges of the High Court may dispose of any such application.

3. An application under section 2 of the Act shall be grounded on the petition and the affidavit of the party making such application and shall be heard and determined on affidavit unless the Court otherwise orders.

4. (1) A petition for the appointment of an Examiner under the Act shall be presented at and shall be retained in the Central Office. A sealed copy thereof shall be taken out by the petitioner or by his solicitor and shall be used as if it were an original.

(2) The petition shall be brought to the office of one of the registrars who shall appoint the time and place at which the petition is to be heard.

(3) Every petition for the appointment of an Examiner shall be verified by affidavit. Such affidavit shall be made by the petitioner or by one of the petitioners if more than one, or in case the petition is presented by a corporation or company, by one of the directors, secretary or other officer thereof and shall be sworn before the presentation of the petition and filed with such petition and such affidavit shall be sufficient prima facie evidence of the statements in the petition. The form of the petition shall comply with section 3 (3) of the Act and shall also, so far as applicable, comply with form no. 2 in Appendix M of the 1986 rules.

(4) On the same day as the petition shall have been presented, the petitioner shall apply ex parte to the High Court for directions as to proceedings to be taken in relation thereto.

5. (1) On the hearing of the ex parte application referred to in Rule 4 (4) above or on any adjourned hearing or hearings thereof or on any subsequent application, the Court may make such order or orders as it thinks fit and may give such directions as it thinks fit and in particular may give directions as to the parties on whom the petition should be served, the mode of service, the time for such service, the date for the hearing of the petition (if different to that appointed by the Registrar) and whether the said petition should be advertised and if so, how the same should be advertised.

(2) On the hearing of such ex parte application, the Court may, if it thinks fit, treat the application as the hearing of the petition and may make such interim order or any other order it thinks fit including adjourning the hearing and may appoint any proposed Examiner on an interim basis until such adjourned hearing and an Examiner so appointed over any company or any related company shall be referred to as the Interim Examiner and shall have the same powers and duties in relation to such company until the date of the adjourned hearing as if he were an Examiner appointed other than on an interim basis.

(3) The Court may adjourn the hearing of the petition or any adjourned hearing until any party or parties which the Court considers should be notified have been notified of the presentation of the petition, whether by advertisement or otherwise, and may adjourn any hearing of the petition for any other reason that appears to the Court to be just and equitable.

(4) On the hearing of a petition or on the adjournment or the further hearing of such petition, the Court may, having heard the petitioner and any interested party or any person who has been notified of the petition and who appears thereto, as the case may be, appoint an Examiner, and may make such further or other order as it thinks fit.

6. (1) An application for the appointment of an Examiner to be appointed an Examiner of a related company pursuant to section 4 of the Act if brought by the petitioner or by the Examiner shall be made ex parte to the Court provided that on the hearing of any such application, the Court may make such order or orders or give such directions as it thinks fit including directions as to whether, and if so, upon which parties notice of the application should be served, the mode of such service and the time allowed for such service and whether the application should be advertised and if so, how the same should be advertised and may adjourn the hearing of such application to a date to be specified.

(2) The Court may, if it thinks fit, while adjourning such application, make such interim order as it sees fit including the appointment of the Examiner as the Examiner of the related company on an interim basis and may also confer on such Examiner in relation to such company all or any of the powers and duties conferred on him in relation to the first mentioned company on an interim basis until the adjourned hearing.

(3) An application for the appointment of an Examiner to be the Examiner of a related company shall, if brought by any person other than the petitioner or the Examiner of the first mentioned company, be brought by way of notice of motion served upon the Examiner and petitioner.

7. In any case where an Interim Examiner has been appointed to any company or an Examiner has been appointed Interim Examiner of a related company of that company, and where upon the final hearing of the application or of the petition, as the case may be, no Examiner is appointed to that company or to that related company, as the case may be, or where a person other than the Interim Examiner is appointed as Examiner to the company or to the related company, such Interim Examiner shall prepare a written report for the Court in relation to the company or to the related company or both in such time as the Court shall direct. Such report or reports shall as far as possible in the circumstances deal with the matters specified in section 16 (a) to (1) of the Act. Such Examiner shall keep and maintain a true record of all liabilities certified by him under section 10 of the Act and shall in his written report give a full account of all liabilities so certified to the Court and shall deal with such further or other matters as may be directed by the Court.

8. (1) Any application by any Examiner of a company pursuant to section 5 (3) of the Act in relation to any existing proceedings involving that company shall be brought by motion on notice to all the parties to such proceedings including the company in relation to which the Examiner was appointed.

(2) Any application by any person under section 5 (3) of the Act seeking the leave of the Court to commence proceedings in relation to the company shall be brought by way of motion on notice to the Examiner and to the company.

9. (1) Any application by any Examiner pursuant to section 7 (6) of the Act may be made ex parte to the Court and on hearing of any such application the Court may deal with the application and may make such order or orders in relation thereto as it thinks fit or may adjourn the application and give such directions as to proceedings to be taken upon it as it thinks fit.

(2) Any application, by any member, contributory, creditor or director of a company pursuant to section 7 (6) of the Act shall be by way of motion on notice to the Examiner and to the company and the Court may make such order upon such application as if it had been brought by the Examiner.

(3) An application by the company or by an interested party pursuant to section 13 (7) of the Act shall be made by motion on notice to the Examiner and to any other interested party or the company, as the case may be, and the Court may deal with any such application as if it were an application under section 7 (6) of the Act and make such order as appears just and proper in the circumstances.

10. Once an Examiner has certified any refusal or refusals specified in section 8 (5) of the Act, he shall thereupon apply ex parte to the Court for leave to produce the said Certificate in relation to such refusal and shall verify the facts in the Certificate by affidavit and thereupon the Court upon notice to the party concerned, may make such enquiries and give such directions in relation to the said refusals as it thinks fit and shall hear such evidence as may be produced in relation thereto and may make such order as seems just and proper in the circumstances.

11. Any application to the Court by the Examiner pursuant to section 9 of the Act for the further vesting in him of all or any of the powers or functions vested in or exercisable by the directors of the company shall be made by notice of motion served upon the said directors, grounded on the affidavit of the Examiner specifying which, if not all, of the powers he seeks to have vested in him by Order of the Court and the Court may give such directions in relation to the hearing of the said application as it thinks fit.

12. An application by the Examiner, pursuant to section 11 of the Act for the disposal of any property which is the subject of any security or of any goods which are in the possession of the company under a hire purchase agreement, shall be made by notice of motion grounded upon affidavit of the Examiner and served upon the holder of such security or the hire purchase company, as the case may be, or upon any other person who appears to have an interest in the property and the Court may upon the hearing of the application make such order under section 11 as appears just and proper and may give such directions concerning the proceeds of all such disposals as shall have been authorised by the Court.

13. (1) An Examiner wishing to resign pursuant to section 13 of the Act, shall do so by an application ex parte to the Court. On the hearing of the application the Court may, if it thinks fit, direct that notice of the application be served on the petitioner, the company, the directors of the company or any other interested party as may be appropriate. The application of the Examiner shall be grounded upon an affidavit sworn by him, specifying the reasons for the said proposed resignation, and the date of the said proposed resignation. Upon the application, the Court may make such order as appears just and proper in the circumstances.

(2) An application to the Court pursuant to section 13 of the Act to remove an Examiner shall be made by motion on notice to the Examiner, to the petitioner, to the company and its directors and to any other party as the Court may direct. Such application shall be grounded upon an affidavit of the moving party specifying the cause alleged to exist justifying the removal of the Examiner by the Court. On the hearing of the application, the Court may make such order as appears just in the circumstances and, if satisfied that cause has been shown for the removal of the Examiner by the Court shall order that he be removed forthwith or upon such date as the Court shall specify. The Court may either before or after ruling upon the application for the removal of the Examiner make such order for the production of any document or documents, or the preparation of such report or reports as it thinks fit.

(3) An application pursuant to section 13 (2) of the Act to fill a vacancy in the office of an Examiner shall be made ex parte to the Court provided that the Court may, if it thinks fit, adjourn the application and make such order or give such directions as appear proper in the circumstances, including directions for service of notice of the making of the application upon such party as it thinks proper.

14. When an Examiner has prepared a report of his examination of the company within the time prescribed or within such time as shall have been fixed by the Court, he shall effect delivery of his report under section 15 of the Act, by making an ex parte application to the Court for leave to deliver it. The report shall contain a part in which each of the matters specified in section 16 shall be dealt with in the order set out in the section. The Examiner shall verify by affidavit,

( a ) Whether the petitioner has complied with section 12 (1) of the Act,

( b ) Whether he has complied with section 12 (2) and (3) of the Act,

( c ) Whether and what portions of the report (if any) should be omitted from delivery under section 15.

He shall also draw to the attention of the Court any particular aspects of the report which are or may be relevant to the exercise by the Court of any other of its functions under the Act.

15. An application for liberty to deliver a report under section 15 of the Act, and where it appears to the Court by reason of all or any of the matters specified in section 17 (1) of the Act that a hearing is required to consider matters arising out of the report, the Court shall give such directions for the holding of a hearing to consider matters arising therefrom and shall make an order fixing the date of the hearing and an order directing the service of a notice of motion for the date of the hearing upon any party entitled to appear and be heard at such hearing, and upon such other party as the Court may direct and the Court may give directions as to the mode of service of such motion on any party or parties and may give directions as to whether, and if so, how the hearing for the consideration of the report should be advertised, and the Court may make such other order or orders as it deems fit.

16. When an Examiner has been given leave to deliver his report under section 15 and where the Examiner is formulating proposals pursuant to section 18 of the Act for a compromise or scheme of arrangement, any application for an extension of time for the delivery by the Examiner of his report thereon, shall be made ex parte to the Court within the time for the delivery of the report or as extended by the Court. Any party affected by the extension, may on notice of motion to the Examiner apply to the Court to set the said order aside upon grounds to be specified and verified in an affidavit and on such application, the Court may make such orders it thinks fit.

17. (1) When an Examiner has prepared a report pursuant to section 18 of the Act within the time prescribed or within such time as shall have been fixed by the Court, he shall effect delivery of his report by making an ex parte application to the Court to deliver it.

(2) ( a ) The report shall contain a full account of each meeting convened by the Examiner and of the proposals put before each such meeting and shall contain as an appendix to the said report a copy of the said proposals which shall deal with each of the matters specified in section 22 of the Act in the order set out in that section.

( b ) The Examiner shall in his application specify whether and if so, what portions of the report should be omitted from delivery under section 18 (5) of the Act and he shall draw to the attention of the Court any particular aspects of the report which are or may be relevant to the exercise by the Court of any other of its functions under the Act.

(3) When the Examiner has been given leave to deliver his report pursuant to subrule 1 and where the Examiner has formulated proposals pursuant to section 18 of the Act for a compromise or scheme of arrangement and has reported to the Court thereon in the period prescribed or within such further period as may have been specified by the Court, the Examiner may apply to the Court ex parte for an extension of the period of protection pursuant to section 18 (4) of the Act for such further period as may be necessary for the Court to enable it to take a decision in relation to the report of the Examiner on the proposals. Upon the making of the application, the Court may direct that the Examiner serve notice of the application onsuch party or parties as the Court thinks fit. The Court may adjourn the application to enable the service to take place, but may extend the period concerned until the adjourned date of the hearing or such other date as to the Court may seem fit, and the Court may further extend the period concerned in the event of any further adjournments of the said hearing.

18. All meetings of members or classes of members or creditors or classes of creditors convened for the purposes of section 18 or section 23 of the Act shall be governed by the following rules:

1. The Examiner shall summon all meetings of creditors and members by sending by post not less than 3 days before the day appointed for the meeting to every person appearing in the company's books to be a creditor of the company or a member of the company, notice of the meeting of creditors or members as the case may be.

2. The notice to each creditor or member shall be sent to the address given in the report of the Examiner of the company, if any or to such other address as may be known to the Examiner.

3. An affidavit by the Examiner or solicitor or by some other officer or clerk of the company or its solicitor that the notice of any meeting has been duly posted shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed. The Examiner may fix a meeting or meetings to be held at such place as in his opinion is most convenient for the majority of creditors or members, or both and different times and/or places may be named for the meetings of creditors and members.

4. The Examiner shall preside at and be chairman of any meeting which he has convened and shall conduct the business of the meeting in an orderly manner so as to ensure the proper discussion of all proposals placed by him before the said meeting.

5. Where a meeting of creditors or members is summoned by notice, the proceedings and resolutions of the meeting shall unless the Court otherwise orders be valid,notwithstanding that some creditors or members may not have received the notice sent to them.

6. The Examiner may with the consent of the meeting adjourn from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified or unless the Court otherwise orders.

7. ( a ) A meeting may not act for any purpose except the adjournment of the meeting unless there are present or represented thereat in the case of a creditors meeting, at least 3 creditors ruled by the Examiner to be entitled to vote or in the case of a meeting of members, at least 2 members.

( b ) If within 15 minutes from the time appointed for the meeting, a quorum of creditors or members as the case may be is not present or represented, the meeting shall be adjourned for the same day in the following week at the same time and place or to such other day or time or place as the Examiner may appoint but so that the day appointed shall be not less than 3, nor more than 21 days from the date from which the meeting was adjourned.

8. ( a ) The Examiner shall cause minutes of the proceedings of the meeting to be drawn up and entered in a book kept for that purpose and the minutes shall be signed by him.

( b ) The Examiner shall cause a list of creditors or members present at every meeting to be kept and every such list shall be signed by him.

9. A creditor or member may appear either in person or by proxy. Where a person is authorised in the manner provided by section 139 of the Companies Act 1963 to represent a corporation at any meeting of creditors or members, such person shall produce to the Examiner a copy of the resolution so authorising him. Such copies shall be under the Seal of the corporation or be certified to be a true copy by the secretary or director of the corporation.

10. Every instrument of proxy shall be, as far as possible, in either the form no. 21 or form no. 22 of Appendix M of the 1986 Rules.

11. A general and a special form of proxy shall be sent to each of the creditors or members with a notice summoning the meeting and neither the name nor the description of the Examiner or any other person shall be printed or inserted in the body of any instrument of proxy before it is sent.

12. A creditor or a member may appoint any person a special proxy to vote at any specified meeting or adjournment thereof on all questions relating to any matter arising at the meeting or an adjournment thereof.

13. A creditor or member may appoint the Examiner to Act as his general or special proxy.

14. ( a ) Every instrument of proxy shall be lodged with the Examiner no later than 4.00 in the afternoon of the day before the meeting or adjourned meeting at which it is to be used and the same shall be kept by the Examiner.

( b ) No person who is an infant shall be appointed a general or special proxy.

( c ) Where a company is a creditor, any person who is duly authorised under the seal of such company to act, generally on behalf of the company at meetings of creditors and members, may fill in and ' sign the instrument of proxy on such company's behalf and appoint himself to be such company's proxy and the instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of such company.

15. The Examiner shall have power to allow or disallow the vote of a person claiming to be a creditor or member, if he thinks fit, but his decision may be subject to appeal to the Court. If he is in doubt whether a vote should be allowed or disallowed, he shall allow it and record the vote as such subject to the vote being declared invalid in the event of an objection being taken and sustained by the Court.

19. An application by the company pursuant to section 20 of the Act to repudiate any contract or any application arising out of such repudiation shall be made by motion on notice to the Examiner and on notice to the other contracting party or parties and on notice to any person referred to in section 20 (2) of the Act.

20. When on the consideration of a report under section 17 or under section 24, the Court considers that an order for the winding up of the company should be made, the Court may order that the application for the winding up of the company or of any related company be made by the Examiner or by such other person as the court may direct and the court may order that the provisions of Order 74 of the 1986 Rules, either in whole or in part, shall apply to the winding up as ordered by the Court.

21. (1) An application to the Court pursuant to section 27 of the Act for the revocation of confirmation of proposals confirmed by the Court, shall be made ex parte for directions as to the proceedings to be taken and the application shall be grounded upon an affidavit which shall specify the fraud alleged and shall supply full particulars thereof and shall specify the names and addresses of all parties who have or may have acquired interests or property in good faith and for value and in reliance on the confirmation of the proposals by the Court.

(2) Upon such application, the Court may make such order and give such directions for the hearing of the said application including directions for service of notice of the application upon all such parties as appear proper in the circumstances and may give such further directions as to the application, including particularly, whether and if so, how the same should be advertised and if it seems fit, direct the filing of any pleadings in the matter.

22. An application by the Examiner pursuant to section 29 of the Act for payment to him of remuneration and costs and reasonable expenses properly incurred by him shall be made by application ex parte to the Court and upon an affidavit of the Examiner in which he shall set forth a full account of the work carried out by him to the date of the application and a full account of the costs and expenses incurred by him and shall vouch same and of the basis for the proposed remuneration which he is seeking to be paid. The Court may, where it thinks fit, order that notice of the application be given to all such persons as the Court may direct, and may give directions as to the service of the said notice and fix a date for the hearing of the application of the Examiner. The affidavit of the Examiner shall also specify what use, if any, he has made of the services of the staff and/or of the facilities of the company to which he has been appointed and the extent of such use.

23. An application to the Court pursuant to section 33 of the Act shall be made by motion on notice to the person or persons concerned and the provisions of Order 74 Rule 49 of the 1986 Rules shall apply to such application as if the references therein to sections of the Companies Act 1963 was a reference to section 33 of the Act.

24. An application by the Examiner to the Court pursuant to section 35 of the Act in respect of any property of a company alleged to have been improperly transferred to the use, control, or possession of any person shall be made by motion on notice to such person and the provisions of Order 74 Rule 49 of the 1986 Rules shall apply to such applications as if the references therein to sections of the Companies Act 1963 was a reference to section 35 of the Act."

2. These Rules shall be construed together with the rules of the Superior Courts.

3. These rules shall come into operation on the 17 day of June, 1991.

EXPLANATORY NOTE.

This instrument makes Rules governing procedures to take account of the provisions of the Companies (Amendment) Act (No. 27 of 1990).