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33 1963

COMPANIES ACT, 1963

PART XV.

General.

Form of Registers.

Form of registers, minute books and books of account.

378. —(1) Any register, index, minute book or book of account required by this Act to be kept by a company or by the registrar of companies may be kept either by making entries in bound books or by recording the matters in question in any other manner.

(2) Where any register, index, minute book or book of account to be kept by a company is not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating its discovery, and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.

Service of Documents.

Service of documents on a company.

379. —(1) A document may be served on a company by leaving it at or sending it by post to the registered office of the company or, if the company has not given notice to the registrar of companies of the situation of its registered office, by registering it at the office for the registration of companies.

(2) For the purposes of this section, any document left at or sent by post to the place for the time being recorded by the registrar of companies as the situation of the registered office of a company shall be deemed to have been left at or sent by post to the registered office of the company notwithstanding that the situation of its registered office may have been changed.

Offences.

Penalty for false statements.

380. —If any person in any return, report, certificate, balance sheet or other document required by or for the purposes of any of the provisions of this Act specified in the Tenth Schedule, wilfully makes a statement false in any material particular, knowing it to be false, he shall be liable

(a) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine not exceeding £500 or both; or

(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £100 or both.

Penalty for improper use of word “limited” or “teoranta”.

381. —If any person or persons trade or carry on business under any name or title of which “limited” or “teoranta” or any contraction or imitation of either word, is the last word, that person or those persons shall, unless duly incorporated with limited liability, be liable to a fine not exceeding £100.

Prosecution of companies on indictment.

382. —(1) Where a company is charged either alone or jointly with some other person with an indictable offence the subsequent provisions of this section shall have effect.

(2) The company may appear at all stages of the proceedings by a representative and the answer to any question to be put to a person charged with an indictable offence may be made on behalf of the company by that representative but if the company does not so appear it shall not be necessary to put the questions and the District Court may, notwithstanding its absence, take depositions and send forward the company for trial.

(3) Any right of objection or election conferred upon the accused person by any enactment may be exercised on behalf of the company by its representative.

(4) Any plea which may be entered or signed by an accused person, whether before the District Court or before the trial judge, may be entered in writing on behalf of the company by its representative, and, if the company does not appear by its representative or, though it does so appear, fails to enter any such plea, the trial shall proceed as though the company had duly entered a plea of not guilty.

(5) In this section, “representative” in relation to a company means a person duly appointed by the company to represent it for the purpose of doing any act or thing which the representative of a company is by this section authorised to do, but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the company before any court for any other purpose.

(6) A representative for the purpose of this section need not be appointed under the seal of the company and a statement in writing purporting to be signed by a managing director of the company or by some other person (by whatever name called) having, or being one of the persons having, the management of the affairs of the company, to the effect that the person named in the statement has been appointed as the representative of the company for the purposes of this section shall be admissible without further proof as evidence that that person has been so appointed.

(7) In this section, “company” includes a company incorporated outside the State which has an established place of business in the State.

Meaning of “officer in default”.

383. —For the purpose of any provision in this Act which provides that an officer of a company who is in default shall be liable to a fine or penalty, “officer who is in default” means any officer of the company who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the provision.

Production and inspection of books when offence suspected.

384. —(1) If on an application to a Judge of the High Court by the Attorney General, the Minister or a Superintendent of the Garda Síochána, there is shown to be reasonable cause to believe that any person has, while an officer of a company, committed an offence in connection with the management of the company's affairs and that evidence of the commission of the offence is to be found in any books or papers of or under the control of the company, an order may be made—

(a) authorising any person named therein to inspect the said books or papers or any of them for the purpose of investigating and obtaining evidence of the offence; or

(b) requiring the secretary of the company or such other officer thereof as may be named in the order to produce the said books or any of them to a person named in the order at a place so named.

(2) Subsection (1) shall apply also in relation to any books or papers of a person carrying on the business of banking so far as they relate to the company's affairs, as it applies to any books or papers of or under the control of the company, except that no such order as is referred to in paragraph (b) thereof shall be made by virtue of this subsection.

(3) The decision of a Judge of the High Court on an application under this section shall be final subject to an appeal to the Supreme Court on a question of law.

(4) In this section, “company” includes a company incorporated outside the State which has an established place of business in the State.

Summary proceedings.

385. —(1) All offences under this Act made punishable by any term of imprisonment not exceeding 6 months or by any fine not exceeding £100 or by such imprisonment and such fine, may be prosecuted summarily.

(2) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Attorney General or by the Minister.

(3) Notwithstanding subsection (4) of section 10 of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 3 years from the date of the offence.

Minimum, fine for second or subsequent offences.

386. —Where a person is convicted of an offence under this Act and is subsequently convicted of another offence under this Act, the fine to be imposed by the court in respect of such second or subsequent offence shall not be less than £50 unless the court, having regard to all the circumstances of the case, otherwise decides.

Saving for privileged communications.

387. —Where proceedings are instituted under this Act against any person, nothing in section 170 or 299 shall be taken to require any person who has acted as solicitor for the company to disclose any privileged communication made to him otherwise than as such solicitor.

Proof of incorporation of companies incorporated outside the State.

388. —A copy of any Act by which a corporation is incorporated, purporting to be published by the Government publishers of any country prescribed by the Minister for the purposes of this section, shall without further proof be prima facie evidence of the incorporation of that corporation.

Proof of certificates as to incorporation.

389. —A certificate signed by any person purporting to hold the office of registrar of companies or assistant registrar of companies or any office similar thereto in any country prescribed by the Minister for the purposes of this section, certifying that a company named in such certificate has been incorporated in that country, shall be prima facie evidence of such incorporation without proof of the signature of the person signing such certificate and without proof that the person signing such certificate holds that office.

Legal Proceedings.

Security for costs by company.

390. —Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.

Power of court to grant relief to officers of company.

391. —(1) If in any proceeding for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor, it appears to the court hearing the case that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that, having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly from his liability on such terms as the court may think fit.

(2) Where any such officer or person as aforesaid has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief, and the court on any such application shall have the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.

(3) Where any case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant ought in pursuance of that subsection to be relieved, either in whole or in part, from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury, and direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.

General Provisions as to the Minister.

Annual report by the minister.

392. —The Minister shall cause a general annual report of matters within this Act to be prepared and laid before both Houses of the Oireachtas.

Expenses.

393. —The expenses incurred by the Minister in the administration of this Act shall to such extent as may be sanctioned by the Minister for Finance be paid out of moneys provided by the Oireachtas.

Authentication of documents issued by the Minister.

394. —Any approval, sanction, direction or licence or revocation of licence which under this Act may be given or made by the Minister may be under the hand of any person authorised in that behalf by the Minister.

Power to alter Tables and Forms.

395. —(1) The Minister shall have power by order to alter or add to the requirements of this Act as to the matters to be stated in a company's balance sheet, profit and loss account and group accounts, and in particular of those of the Sixth Schedule; and any reference in this Act to the Sixth Schedule shall be construed as a reference to that Schedule with any alterations or additions made by orders for the time being in force under this subsection.

(2) The Minister may by order—

(a) alter Table A, Tábla A and the Third, Seventh and Eighth Schedules; and

(b) alter or add to Tables B, C, D and E in the First Schedule and the form in Part II of the Fifth Schedule;

but no alteration made by the Minister in Table A or in Tábla A shall affect any company registered before the alteration, or repeal in relation to that company any portion of Table A or Tábla A.

Laying of orders before Houses of Oireachtas and power to revoke or amend orders and to prescribe forms.

396. —(1) Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(2) The Minister may by order revoke or amend an order (other than an order made under subsection (2) of section 1) made under this Act.

(3) The Minister may by order prescribe forms to be used in connection with any of the provisions of this Act other than those relating to the winding up of companies.

Supplemental.

Restriction of section 58 of Solicitors Act, 1954.

397. —Notwithstanding section 58 of the Solicitors Act, 1954 , a person to whom paragraph (a) or (b) of subsection (1) of section 162 applies may draw or prepare any document for the purposes of this Act other than a deed or a memorandum or articles of association.

Provisions as to winding-up proceedings commenced before the operative date.

398. —(1) The provisions of this Act relating to winding up (other than subsections (2) and (3)) shall not apply to any company of which the winding up commenced before the operative date but every such company shall be wound up in the same manner and with the same incidents as if this Act (apart from the enactments aforesaid) had not been passed, and for the purposes of the winding up, the Act or Acts under which the winding up commenced shall be deemed to remain in full force.

(2) An office copy of every order staying the proceedings in a winding up commenced as aforesaid shall forthwith be forwarded by the company or by such person as the court may direct, to the registrar of companies for registration.

(3) If a company fails to comply with subsection (2), the company and every officer of the company who is in default shall be liable to a fine not exceeding £25, and if any other person fails to comply with subsection (2) such person shall be liable to a fine not exceeding £25.

Amendments of other Acts.

399. —The enactments set out in the Eleventh Schedule shall have effect subject to the amendments specified in that Schedule.