Sent in to us to-day
When an Irish company is placed in liquidation, Irish com-pany law requires the directors of the company to produce a so-called ―statement of affairs‖ of the company within 21 days. This SoA sets out the financial position of the company at the date of liquidation and is in-tended to assist creditors in understanding their prospects for recovering any debt.
All standard so far, and this type of arrangement appears to exist in most advanced econo-mies, and Ireland certainly claims to be such an ―advanced economy‖
Yet , six months (that‘s 180 days) after the IBRC liquidation, and there was no sign of any SoA. A litigant in a case against IBRC, who would potentially become a creditor, sought the SoA without success. The liti-gant is hotelier Johnny Moran who is locked in a bitter dispute with IBRC on foot of the ap-pointment of receivers to his assets. With no sign of the SoA, Johnny went to the courts to force the directors – techni-cally, the members of the board which includes the chairman – to produce the SoA. The case was scheduled to be heard on 22nd July 2013, a Monday.
On the preceding Friday 19th July, 2013, Johnny served the former IBRC board members with summonses. There was what should be a memorable incident outside the Institute of International and European Affairs on North Great Geor-ges Street, when Johnny per-sonally placed the summons in the hands of Alan Dukes, for-mer chairman of Anglo/IBRC and former finance minister who should be more than famil-iar with requirements under company law. This personal service took place at 3pm.
Less than two hours after Alan Dukes was served with the summons, Minister for Finance Michael Noonan rushed out a letter in which he granted the former IBRC board members a waiver on their obligations to produce a SoA. Remember this was 180 days after the SoA was in fact due, and it was the first waiver provided by the Minis-ter. You can view the letter here, the list of recipients and their addresses is here though we have redacted some of the address details, the publication of which might give rise to Data Protection issues.
At the court hearing on the following Monday morning 22nd July 2013, Ms Justice Mary Laf-foy was presiding in the High Court where she heard Johnny‘s motions to compel the production of the SoA. She adjourned the matter ‗til after lunch when she decided that the Minister‘s letter prevented her taking any action. There is no written judgment in the matter, but those who attended the hearing report her saying she ―could not get involved because the Minister was in-volved‖, which didn‘t seem a satisfactory state of affairs in an ―advanced economy‖ where there is separation between the executive (the Government) and the judiciary. A coinciden-tal footnote to this matter was the appointment/promotion of Judge Laffoy to the Supreme Court three days later on 25th July 2013.
It was only a fortnight after the court hearing that Minister Noonan signed into law an Order pursuant to the IBRC Act 2013 which waived the obligations of the former IBRC board members, and gave them until 30th September 2013 to produce the SoA. That Order, dated 6th August 2013, is avail-able here, but it goes further than just granting an extension, it allows the SoA to conceal the names of the creditors………………………
Full article in PDF doc here: NAMA
- US vulture funds take on IBRC in $1 billion case (irishtimes.com)
- Quinns ready for next scene in legal saga (irishtimes.com)
- Anglo’s ‘statement of affairs’ will not name former clients (independent.ie)
- ‘Anglo wasn’t bust when plug pulled’ (independent.ie)
- Nama to employ 500 IBRC staff (irishtimes.com)
- Ireland IBRC Solvent When Liquidated, Former Directors: B. Post – Bloomberg (bloomberg.com)