Insurance (No. 2) Act, 1983
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Appointment of administrators of insurers. |
2.—(1) The Minister may present a petition to the court for an order for the administration of an insurer and the appointment of an administrator in relation to such insurer and may do so notwithstanding that there is or may be another remedy or course of action available to him in relation to such insurer. | |
(2) The court may, on such petition, in relation to an insurer, if it considers— | ||
(a) that— | ||
(i) the manner in which the business of the insurer is being or has been conducted has failed to make adequate provision for its debts, including contingent and prospective liabilities, or | ||
(ii) the business of the insurer is being or has been so conducted as to jeopardise or prejudice the rights and interests of persons arising under policies issued by the insurer, or | ||
(iii) the insurer has become unable to comply with the requirements of the Regulations in a material respect, | ||
and | ||
(b) that the making of such an order for administration and the appointment of an administrator would assist in the maintenance, in the public interest, of the proper and orderly regulation and conduct of non-life insurance business, | ||
make an order for the administration of the insurer and appoint a person nominated by the Minister (who shall be known as and is in this Act referred to as “an administrator”) to perform, in relation to the insurer, the functions conferred on an administrator by this Act. | ||
(3) An administrator shall take over the management of the business of the insurer and shall carry on that business as a going concern with a view to placing it on a sound commercial and financial footing and the administrator shall have in relation to the insurer all such powers as may be necessary for or incidental to his functions in relation to the insurer, including the sole authority over and direction of all officers and employees of the insurer. | ||
(4) (a) At any time after the presentation of a petition for an order for the administration of an insurer, the court may, upon the ex parte application of the Minister and upon prima facie proof by affidavit or otherwise of one or more of the matters mentioned in subparagraph (i), (ii) or (iii) of section 2 (2) (a) of this Act and without advertisement or notice to any person, appoint such person as may be nominated by the Minister to act as administrator provisionally pending the appointment of an administrator under section 2 (2) of this Act. | ||
(b) If no order for the administration of the insurer is made upon the petition, the appointment of the provisional administrator shall be annulled but he shall nevertheless be entitled to be paid out of the assets of the insurer all the costs, charges and expenses properly incurred by him as provisional administrator, including such sum as the court may fix for his remuneration, and may retain out of such assets the amount of such costs, charges and expenses: | ||
Provided that any such annulment shall not invalidate any act or function done or performed by the provisional administrator. | ||
(5) The administration of an insurer under this Act shall be deemed to have commenced at the time of the presentation of the petition for an order for administration. | ||
(6) (a) If at any time no rules of court in respect of the making of an order for administration or the appointment of an administrator by the court under this Act are in force, the provisions of Order 74 of the Rules of the Superior Courts (S.I. No. 72 of 1962), shall, with any necessary modifications, but subject to paragraph (b) of this subsection and subsection (4) of this section, apply. | ||
(b) (i) A petition for the administration of an insurer or the appointment of an administrator to an insurer shall be served only on the insurer, unless the court shall otherwise direct. | ||
(ii) Upon the hearing of a petition for the administration of an insurer or the appointment of an administrator to an insurer, only the Minister and the insurer concerned shall be entitled to be heard unless the court shall otherwise direct. | ||
(iii) The provisions of the said Order 74 shall not, in so far as they relate in the case of an official liquidator to the giving of security, the filing of accounts, the lodging of monies to a bank account or the fixing of the remuneration of the liquidator, apply to an administrator. | ||
(c) Any rules of court amending or replacing the said Order 74 shall, in their application for the purposes of this Act, be subject to the provisions of paragraph (b) of this subsection and subsection (4) of this section. | ||
(7) The administration of an insurer under this Act and the appointment of an administrator shall terminate— | ||
(a) upon the making of an order for the winding up of the insurer concerned, or | ||
(b) upon the making of an order for such termination by the court on the application of the Minister or the administrator, with the approval of the Minister, or | ||
(c) upon the making of an order for such termination by the court in circumstances where it considers— | ||
(i) that, if the administration is terminated— | ||
(I) the business of the insurer concerned will be conducted in such manner as to make adequate provision for its debts, including contingent and prospective liabilities, and | ||
(II) the business of the insurer concerned will not be so conducted as to jeopardise or prejudice the rights and interests of persons arising under policies issued by the insurer, and | ||
(III) the business of the insurer is and will continue to be in all other respects on a sound commercial and financial footing, and | ||
(IV) any debt due to the Insurance Compensation Fund has been or will be paid, | ||
and | ||
(ii) that it would be unjust and inequitable not to make the order. | ||
(8) In any proceedings upon a petition presented under this Act, evidence that the matters set out in subsection (2) (a) of this section pertained in relation to an insurer at the close of the period to which the latest returns of such insurer to the Minister under the Insurance Acts, 1909 to 1983, or under the Regulations or the European Communities (Non-Life Insurance Accounts) Regulations, 1977 (S.I. No. 401 of 1977), upon any subsequent date shall be evidence unless the contrary is proved that such matters pertain in relation to the insurer at the time of the hearing of any such proceedings. |