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Requirements consequent on ceasing to hold office
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138. (1) Where an auditor of an ICAV ceases for any reason to hold office, he or she shall deposit at the head office of the ICAV a statement of any circumstances connected with his or her ceasing to hold office which he or she considers should be brought to the attention of the shareholders or creditors of the ICAV or, if he or she considers that there are no such circumstances, a statement that there are none.
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(2) The statement referred to in subsection (1) shall be deposited—
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(a) in the case of resignation, along with the notice of resignation,
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(b) in the case of failure to seek re-appointment, not less than 14 days before the end of the time allowed for next appointing auditors, and
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(c) in any other case, not later than the end of the period of 14 days beginning with the date on which he or she ceases to hold office.
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(3) Where the statement referred to in subsection (1) is of circumstances which the auditor considers should be brought to the attention of the shareholders or creditors of the ICAV, the ICAV shall, not later than 14 days after the date of the deposit of the statement, either—
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(a) send a copy of the statement to each of the shareholders whose name appears on the register of shareholders, or
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(b) apply to the High Court,
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and, where an application is made under paragraph (b), the ICAV shall notify the auditor.
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(4) Unless the auditor receives notice of an application to the High Court before the end of the period of 21 days beginning with the day on which the statement referred to in subsection (1) was deposited, the auditor shall, not later than 7 days after the end of that period, send a copy of the statement to the Bank.
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(5) Where the High Court is satisfied that the auditor is using the statement referred to in subsection (1) to secure needless publicity for defamatory matter—
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(a) it shall direct that copies of the statement need not be sent out and that the steps required by Bank rules need not be taken, and
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(b) it may further order the costs of the ICAV on the application to be paid in whole or in part by the auditor even if the auditor is not a party to the application,
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and the ICAV shall, not later than 14 days after the date of the High Court’s decision, send a copy of a statement setting out the effect of the order to each of the shareholders whose name appears on the register of members.
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(6) Where the High Court is not so satisfied, the ICAV shall, not later than 14 days after the date of the court’s decision, send to each of the shareholders a copy of the auditor’s statement and notify the auditor of the court’s decision.
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(7) The auditor shall, not later than 7 days after the date of receiving the notice referred to in subsection (6) send a copy of the statement referred to in subsection (1) to the Bank.
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(8) Where notice of appeal is filed not later than 14 days after the date of the High Court’s decision, any reference to that decision in subsections (5) and (6) is to be construed as a reference to the final determination or withdrawal of that appeal.
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(9) Where a person ceasing to hold office as auditor fails to comply with this section he or she commits a category 2 offence.
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(10) In proceedings for an offence under subsection (9), it is a defence for the person charged to show that he or she took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
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