Qualification as Liquidator/Examiner

A liquidator, including a provisional liquidator, can continue to act, in a winding up where the appointment was made prior to the Companies Act 2014’s commencement, i.e the 2014 Act does not affect the appointment of liquidator in any case which was started prior to enactment of the the 2014 Companies Act.

If a liquidator is applying to act as a liquidator to a company under Category 5, a Person of Practical experience, the liquidator can continue to act as liquidator to a company where the appointment was made prior to the introduction of the Companies Act 2014, even where that application has been refused, i.e. the 2014 Act does not affect the appointment of a liquidator in any case which was started prior to the Companies Act 2014.

Category 1 – Member of a prescribed accountancy body
The person is a member of a prescribed accountancy body, being a person who:

• holds a current practising certificate issued by that body; and
• is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from acting as a liquidator.

 
Category 2 – Practising solicitor
The person is a solicitor, being a solicitor who:

• holds a current practising certificate issued by the Law Society of Ireland under the Solicitors Acts 1954 to 2002; and
• is not prohibited by virtue of regulations made by the Law Society of Ireland, or a decision or order made

 
Category 3 – Member of other professional body recognised by IAASA
The person is a member of such professional body as the IAASA may from time to time recognise for the purposes of this section, being a person who:

• is authorised for the time being by that professional body to pursue the particular activities that that body aims to promote or foster or as respects the pursuit of which by its members that body
• has been established to represent; and
• is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from acting as a liquidator.

 
Category 4 – Person qualified under the laws of other EEA State
The person is entitled under the laws of an EEA state, other than Ireland, to act as a liquidator in insolvency proceedings and the qualifications held by, or the circumstances otherwise relating to the person, that entitle him or her so to act are ones that by virtue of any Community act, entitle him or her to act as a liquidator in the State.

Category 5 – Persons with practical experience of windings up and knowledge of relevant law
The person:

• having made application in that behalf to the IAASA in the prescribed form within 30 months after the commencement of this section; and
• paid the prescribed fee and stands authorised for the time being by the Supervisory Authority to be so appointed, such authorisation having been granted on the grounds that each of the following is satisfied:
1. the person has, prior to the commencement of this section, obtained adequate relevant experience of the winding up of companies and knowledge of the law applicable thereto by virtue of the person’s either:
a) having been:
– employed in relevant work by a person who at the relevant time fell (or, if this section had been in operation at that time, who would have fallen) within categories 1, 2 or 3; or
– engaged on his or her own account in relevant work; or
b) having practised in an EEA State (not being the State) as a liquidator;

2. the person is, in the opinion of IAASA, after consultation with the CEA, a fit and proper person to act as a liquidator; and
3. the person does not fall within categories 1, 2, 3 or 4.

Subject to Sections 634(3) and 635 of the Companies Act, a person shall not be qualified for appointment as a liquidator of a company unless there is in place in relation to the person an indemnity, in such amount and on such terms as may from time to time be prescribed by regulations made by the IAASA, against losses and claims arising in respect of civil liability incurred by the person in respect of any act or omission by-

• the person
• any servant or agent of the person; or
• both of them

 
in the conduct of the winding up of the company concerned.

The reference to an indemnity being in place in relation to a person is a reference to an indemnity being provided (against the losses and claims referred to in that subsection) by either of the following means:

• a policy of indemnity insurance being effected and maintained by the person with an insurance undertaking; or
• the person’s participating, in a manner legally enforceable by the person, in an indemnity fund of a mutual nature that is recognised by the Supervisory Authority for the time being for the purposes of this section.

If a liquidator ceases to be qualified to act as a liquidator, the person shall then vacate his or her office.

On vacating such office by reason of those circumstances, the person shall give notice in writing that he or she has vacated such office, by reason of those circumstances:

(a) within 2 days after the date of vacating office, to–
(i) the Registrar of Companies (CRO) (using Form E2a);
(ii) the Director of Corporate Enforcement (ODCE); and
(iii) if the person had been authorised under category four (Section 4.5) to be appointed as a liquidator – the IAASA;

and
(b) within 14 days after the date of vacating office, to –
(i) in the case of a winding up by the court, the court and–
(I) if a committee of inspection has been appointed – the members of that committee; or
(II) if no committee of inspection has been appointed – the creditors of the company;

(ii) in the case of a creditors’ voluntary winding up–
(I) if a committee of inspection has been appointed – the members of that committee; or
(II) if no committee of inspection has been appointed – the creditors of the company;
or

(iii) in the case of a members’ voluntary winding up – the members of the company.

 
As respects a person who has been authorised under Category 5 to be appointed a liquidator:

• if the person becomes qualified for appointment as a liquidator under any Category 1-4, then the Category 5 qualification ceases to have effect;
• the IAASA may withdraw or suspend (for such period and on such terms as it thinks fit) the person’s authorisation under that paragraph 5, if it is satisfied that the person is no longer sufficiently capable of acting as a liquidator or is no longer a fit and proper person to act as a liquidator.

 
IAASA may, to meet the cost of conducting such inquiries as may be necessary to be conducted for the purposes of its exercising the powers to withdraw or suspend authorisation, levy, not more frequently than annually, such periodic charge as may reasonable on any person acting as a liquidator, being a person who so acts by virtue of the person’s being authorised under Category 5.

None of the following persons shall be qualified to be appointed or act as liquidator of a company:

• a person who is, or who within the period of 24 months before the date of the commencement of the winding up has been, an officer or employee of the company;
• except with the leave of the court, a parent, spouse, civil partner, brother, sister or child of an officer of the company;
• a person who is a partner or in the employment of an officer or employee of the company;
• a person who is an undischarged bankrupt;
• a person who is not qualified by virtue of a preceding provision of this subsection for appointment as liquidator of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or would be so disqualified if the body corporate were a company.

 
An application for leave under (b) shall be supported by such evidence as the court may require, as detailed in Section 635 Companies Act 2014. If, while acting as liquidator of a company, a person ceases to be qualified to so act, the person shall vacate his or her office.

An auditor of a company cannot also be the liquidator to the company. References to (a) to (e) under Section 635 of the Companies Act 2014, includes reference to:

• a child of an officer of the company shall be deemed to include a child of the officer’s civil partner where the child is ordinarily resident with the officer and the civil partner.
• an officer or employee of the company includes a statutory auditor of the company.