|
“19.—(1) The Director may, subject to subsection (2), give directions to any body being—
(a) a company formed and registered under the Companies Acts;
(b) an existing company within the meaning of those Acts;
(c) a company to which the Principal Act applies by virtue of section 325 thereof or which is registered under that Act by virtue of Part IX thereof;
(d) a body corporate incorporated in, and having a principal place of business in, the State, being a body to which any of the provisions of the said Act with respect to prospectuses and allotments apply by virtue of section 377 of that Act;
(e) a body corporate incorporated outside the State which is carrying on business in the State or has at any time carried on business therein;
(f) any other body, whether incorporated or not, which is, or appears to the Director to be, an insurance undertaking to which the Insurance Acts, 1909 to 2000, or regulations on insurance made under the
European Communities Act, 1972
, would apply,
requiring the body, at such time and place as may be specified in the directions, to produce such books or documents as may be so specified.
(2) Directions may be given by the Director if he is of the opinion that there are circumstances suggesting that—
(a) it is necessary to examine the books and documents of the body with a view to determining whether an inspector should be appointed to conduct an investigation of the body under the Companies Acts;
(b) the affairs of the body are being or have been conducted with intent to defraud—
(i) its creditors,
(ii) the creditors of any other person, or
(iii) its members;
(c) the affairs of the body are being or have been conducted for a fraudulent purpose other than described in paragraph (b);
(d) the affairs of the body are being or have been conducted in a manner which is unfairly prejudicial to some part of its members;
(e) any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body are or would be unfairly prejudicial to some part of its members;
(f) any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body or by an officer of the body acting in his capacity as such officer are or are likely to be unlawful;
(g) the body was formed for any fraudulent purpose;
(h) the body was formed for any unlawful purpose; or
(i) the body may be in possession of books or documents containing information relating to the books or documents of a body which comes within the terms of one or more of paragraphs (a) to (h).
(3) Where by virtue of subsection (1) the Director has power to require the production of any books or documents from any body, the Director shall have the like power to require production of those books or documents from any person who appears to the Director to be in possession of them or to be in possession of—
(a) other books or documents which may constitute copies of any books or documents of the body,
(b) subject to subsection (4), other books or documents which may relate to any books or documents of the body,
but where any such person claims a lien on books or documents produced by him, the production shall be without prejudice to the lien.
(4) The power under subsection (3)(b) shall not be exercised unless—
(a) in the opinion of the Director, there are reasonable grounds for believing the first and second-mentioned books or documents in subsection (3)(b) are related to one another (and those grounds may include grounds related to the relationship between the body and the person of whom the requirement under subsection (3)(b) is proposed to be made, a common origin of some or all of the information contained in the said books or documents or similar considerations), and
(b) save where the Director is of opinion that compliance with this paragraph could result in the concealment, falsification, destruction or the disposal otherwise of the books or documents concerned, the Director notifies the person of whom the requirement under subsection (3)(b) is proposed to be made (‘the third party’) that the Director proposes to make that requirement and states in that notification the grounds for his opinion under paragraph (a) and that the third party may (if such is his contention) make submissions to the Director, within 21 days from the date of the making of the notification, as to why he believes the said opinion of the Director to be erroneous (and the Director shall have regard to any such submissions so made before finally deciding whether to make the said requirement or not),
but in no case shall the third party be obliged to comply with such a requirement in relation to a particular book or document concerned if he would be entitled, by virtue of any rule of law or enactment, to refuse to produce, in any proceedings, the book or document on the ground of any privilege (whether the privilege to which section 23 applies or not).
(5) Any power conferred by or by virtue of this section to require a body or other person to produce books or documents shall include power—
(a) if the books or documents are produced—
(i) to take copies of them or extracts from them, and
(ii) to require that person, or any other person who is a present or past officer of, or is or was at any time employed (including in a professional, consultancy or similar capacity) by, the body in question, to provide, insofar as the person may be reasonably able so to do, an explanation of any of them, including an explanation of any apparent omissions from them or any omission of any book or document,
and
(b) if the books or documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are,
and in either event to give all assistance to the Director as the body or person is reasonably able to give in connection with an examination or proposed examination of books or documents under this section.
(6) If a requirement to produce books or documents or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the body or other person on whom the requirement was so imposed shall be guilty of an offence; but where a person is charged with an offence under this subsection in respect of a requirement to produce any books or documents, it shall be a defence to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement.
(7) A statement made or an explanation provided by an individual in compliance with a requirement imposed by virtue of this section may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence (other than an offence under subsection (6) or (8))).
(8) A person who provides an explanation or makes a statement required under this section which is false or misleading in a material respect, knowing it to be so false or misleading, shall be guilty of an offence.
(9) Notwithstanding section 202(9), it shall be an offence for a person or body with notice of a direction under subsection (1) (whether given or coming to the notice of the person or body before or after the commencement of
section 29
of the Company Law Enforcement Act, 2001) to destroy, mutilate, falsify or conceal any book or document the subject of a direction.
(10) The court may, on the application of the Director, direct that a body the subject of a direction under subsection (1) shall be liable, to such extent as the court may direct, to repay the Director the expenses of and incidental to the examination.
(11) Without prejudice to subsection (10) but subject to subsection (12), a person—
(a) convicted on indictment of an offence on a prosecution instituted,
(b) ordered to pay damages or restore any property in proceedings brought, or
(c) awarded damages or to whom property is restored in proceedings brought,
as a result of a direction under subsection (1) may, in the same proceedings, be ordered to repay the Director all or part of the expenses referred to in subsection (10).
(12) The court shall not order a person to whom subsection (11)(c) relates to make payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored.
|
