liquidators, it does not provide cover for fraud, dishonesty or misappropriation by the liquidator him or herself.

Transcription

1 Consultation on the amount and terms of indemnity against losses and claims arising in respect of civil liability by liquidators 7 August 2015

2 Table of Contents 1) Introduction...1 2) Overview of Professional Indemnity Insurance...1 3) Proposed amount and terms of indemnity...2 4) Basis for the proposed amounts and terms...2 5) Questions on which IAASA is consulting...3 6) Making Your Submission...4 Appendix 1 Sections 633 and 634 of the Companies Act

3 1) Introduction The Companies Act 2014 ( the 2014 Act ) came into force on 1 June The 2014 Act provides, at Sections 633 and 634, for the qualifications governing those who wish to act as company liquidators 1. Section 634(1) of the 2014 Act provides that 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 IAASA, against losses and claims arising in respect of civil liability incurred by the person in respect of any act or omission by- (a) the person, (b) any servant or agent of the person, or (c) both of them, in the conduct of the winding up of the company concerned 2. Section 634(2) provides that the reference in section 634(1) 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) a policy of indemnity insurance being effected and maintained by the person with an insurance undertaking; or (b) the person s participating, in a manner legally enforceable by the person, in an indemnity fund of a mutual nature that is recognised by IAASA for the time being for the purposes of section 634. For ease of reference, the text of Sections 634 and 635 is set out in Appendix 1. 2) Overview of Professional Indemnity Insurance Professional indemnity insurance ( PII ) is liability insurance aimed at covering, either entirely or in part, sums to be paid by professionals to third parties as compensation for losses arising from acts committed by the professional during the conduct of business activities. As noted above, IAASA is mandated by section 634(1) to make regulations to stipulate the amount and terms of PII to be held by persons authorised to act as liquidators. PII is widely recognised as an important protector of public interests. While the cover directly protects liquidators from the cost of claims against them, there are clear benefits to creditors 3 in a winding up scenario. It provides such persons with greater certainty that any loss incurred (within the scope of the insurance) will be paid without reliance upon the liquidator who may not have assets to pay damages. Regulation does not usually seek to offer absolute protection to all stakeholders the cost would be prohibitive of preventing any harm and it would in any event be an impossible task. IAASA s aim is to secure an appropriate balance between the overall level of financial protection and the cost and regulatory burden imposed on persons authorised to act as liquidators. It is important to acknowledge the limitations of such insurance. While for example, it covers liability arising from negligent actions of a 1 The section also covers provisional liquidators. 2 Section 634(3) provides that this requirement does not apply to a person as respects any winding up in relation to which he or she has been appointed liquidator before 1 June, IAASA recognises that creditors may not be the only claimants on a liquidator s PII policy. However, the term creditors is used throughout this paper to cover all those stakeholders who may make a claim on a liquidator s policy. This may include shareholders in a members winding up. 1

4 liquidators, it does not provide cover for fraud, dishonesty or misappropriation by the liquidator him or herself. 3) Proposed amount and terms of indemnity IAASA proposes to set Regulations for the amount and terms of indemnity as follows: a) The indemnity must be against losses and claims arising in respect of any civil liability howsoever arising incurred by the person in respect of any act or omission by the person, any servant or agent of the person, or a combination thereof, in the conduct of the winding up of a company; b) An individual authorised to be appointed as a liquidator of a company shall have assessed the level of cover appropriate to his/her activities and in particular in relation to the value of assets currently or to be under his / her control and procure an indemnity sufficient to the need of his / her activity; c) The professional indemnity insurance procured and maintained by a person authorised to act as a liquidator shall provide a minimum cover for each and every claim of not less than 1,500,000; d) The amount of any annual indemnity aggregate for the policy period shall not be less than 5,000,000; e) The indemnity shall include cover for fraud, dishonesty and misappropriation by any servant or agent of the liquidator, where such acts are committed without condonation by the liquidator; f) The indemnity shall include defence costs with no monetary limit; g) Run off cover of the indemnity must be maintained for six years after ceasing to do the work; h) The indemnity cover may be provided as part of an already existing insurance arrangement that the individual has in place for other professional activities. However, the cover for work as liquidator of a company must be explicitly endorsed on the policy; i) The insurance undertaking providing the indemnity must be authorised by the Central Bank of Ireland or an equivalent insurance regulator in another EU Member State; j) IAASA has not yet determined whether it will provide for a maximum excess (or deductible) that can be set on the policy; and k) IAASA does not propose at this time, to recognise any fund of a mutual nature for the purposes of Section 634(2). 4) Basis for the proposed amounts and terms In order to fulfil its mandate, IAASA surveyed certain other professions in which PII is required, in particular the insurance requirements of the nine prescribed accountancy bodies ( PABs ) falling under its remit and the Law Society of Ireland. We also liaised with a competent authority in another EU Member State with a similar regulatory role, and approached a number of insurance industry practitioners to elicit their views. The next phase of IAASA s consideration of this matter is this public consultation from which we hope to get enhanced information and wider views from stakeholders and other interested parties. Some of the principles which IAASA will have in mind when finalising the proposals include: maximising the protection for creditors; not setting the proposed indemnity amounts at a level which makes the procurement of insurance unaffordable or unavailable for liquidators; 2

5 maximising the opportunities for liquidators to negotiate limits most appropriate to their business activities and placing the responsibility for such assessment with the liquidator; ensuring that defence costs are fully covered in the PII policy; ensuring that the excess on the PII policy is not set at a level which renders the indemnity worthless; ensuring there is sufficient requirements for run-off cover to be in place; ensuring that reputable and regulated insurance undertakings are used by liquidators; while acknowledging the insurers do not provide cover for the fraud, dishonesty or misappropriation by the liquidator, ensuring that cover is in place for the fraud, dishonesty or misappropriation by any servant or agent of the liquidator, where such acts have been carried out without the knowledge of the liquidator; allowing liquidators to enhance any professional indemnity insurance they already have in place rather than needing to procure separate insurance for this line of their business; and ensuring that the levels and terms of the PII requirements are clear and limit any ambiguity for practitioners to implement and the Office of the Director of Corporate Enforcement to assess compliance. 5) Questions on which IAASA is consulting In light of the above a number of questions are set out below on which we would welcome views of stakeholders and interested parties: a) What are your views on the proposal that indemnity insurance procured and maintained by a person authorised to act as a liquidator shall provide a minimum cover for each and every claim of not less than 1,500,000? b) What are your views on the proposal that the amount of any annual indemnity aggregate for the policy period shall not be less than 5,000,000? c) Do you agree with the proposal to require cover for fraud, dishonesty and misappropriation by any servant or agent of the liquidator in the conduct of the winding up? d) Do you agree with the proposal that the indemnity shall include defence costs with no monetary limit? e) What are your views on the proposal that run-off cover of six years be maintained? f) Do you agree with the proposal not to require persons who are already the subject of PII requirements to take out an additional policy but to require endorsements on that policy? g) Do you agree that the insurance undertaking providing the indemnity must be authorised by the Central Bank of Ireland or an equivalent insurance regulator in another EU Member State? h) Do you think that there should be a maximum excess (or deductible) allowable on the policy to ensure that the excess on the PII policy is not set at a level which renders the indemnity worthless? i) Do you agree with the proposal not, at the current time, to recognise any fund of a mutual nature for the purposes of s 634(2)? j) Please provide any additional comments you may have on the proposals set out in Section 3 above. 3

6 6) Making Your Submission Please provide responses to the above questions by only, to no later than midnight on 25 September Any submissions received after this date or any anonymous submissions will not be considered. IAASA invites comments on all proposals put forward in this paper and in particular on the specific questions summarised in section 5 above. Comments are most helpful if they: respond to the question stated; indicate the specific point to which a comment relates; contain a clear rationale; provide evidence to support the views expressed/rationale proposed; and describe any alternative regulatory choices you wish IAASA to consider. While responses may include attachments, such attachments must not be encrypted. All responses received by the deadline will be considered prior to the issue of the final Regulations by IAASA. Depending on the nature and scale of responses, IAASA may publish a Feedback Statement summarising the content of the responses. Respondents should note that, in the interests of transparency, their responses may be published in full or in part (and may be attributed to the respondent) by IAASA in that Feedback Statement. 4

7 Appendix 1 Sections 633 and 634 of the Companies Act 2014 Qualifications for appointment as liquidator or provisional liquidator general 633. (1) Subject to sections 634 and 635, a person shall not be qualified for appointment as a liquidator of a company unless he or she falls within a paragraph of the Table to this section. (2) Nothing in this section shall prevent a person who (a) does not fall within paragraph 1, 2, 3 or 4 of the Table to this section, and (b) has made an application to the Supervisory Authority under and in accordance with paragraph 5 of that Table (in subsection (3) referred to as a relevant applicant ), from acting as a liquidator pending the determination of that application. (3) In addition to subsection (2), nothing in this section shall prevent a relevant applicant from continuing to act as a liquidator in a winding up in relation to which he or she was appointed liquidator before the commencement of this section notwithstanding that the Supervisory Authority has refused his or her application made under and in accordance with paragraph 5 of the Table to this section. (4) In this section liquidator includes provisional liquidator. Table 1 First category member of a prescribed accountancy body. The person is a member of a prescribed accountancy body, within the meaning of Part 15, being a person who (a) holds a current practising certificate issued by that body; and (b) 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. 2 Second category practising solicitor. The person is a solicitor, being a solicitor who (a) holds a current practising certificate issued by the Law Society of Ireland under the Solicitors Acts 1954 to 2002; and (b) is not prohibited by virtue of regulations made by the Law Society of Ireland, or a decision or order made by the Solicitors Disciplinary Tribunal or the court, under those Acts from acting as a liquidator. 3 Third category member of other professional body recognised by Supervisory Authority. The person is a member of such professional body as the Supervisory Authority may from time to time recognise for the purposes of this section, being a person who (a) 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 (b) 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. 4 Fourth category person qualified under the laws of another EEA state. The person is entitled under the laws of an EEA state (not being the State) to act as a liquidator in insolvency proceedings and the qualifications held by, or the circumstances 5

8 Table 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. 5 Fifth (and limited) category person with practical experience of windings-up and knowledge of relevant law. The person (a) having made application in that behalf to the Supervisory Authority in the prescribed form within 2 years after the commencement of this section; and (b) paid the prescribed fee to the Supervisory Authority, stands authorised for the time being by the Supervisory Authority (which authorisation the Supervisory Authority is, by virtue of this section, empowered to grant) to be so appointed, such authorisation having been granted on the grounds that each of the following is satisfied (i) 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 (I) having been (A) 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 paragraph 1, 2 or 3; or (B) engaged on his or her own account in relevant work; or (II) having practised in an EEA state (not being the State) as a liquidator; (ii) the person is, in the opinion of the Supervisory Authority, after consultation with the Director, a fit and proper person to act as a liquidator; and the person does not fall within paragraph 1, 2, 3 or 4 Supplemental provisions in relation to section 633 (including requirements for professional indemnity cover) 634. (1) Subject to the preceding section, subsection (3) and section 635, 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 Supervisory Authority, against losses and claims arising in respect of civil liability incurred by the person in respect of any act or omission by (a) the person, (b) any servant or agent of the person, or (c) both of them, in the conduct of the winding up of the company concerned. (2) The reference in subsection (1) 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) a policy of indemnity insurance being effected and maintained by the person with an insurance undertaking; or 6

9 (b) 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. (3) Subsection (1) does not apply to a person as respects any winding up in relation to which he or she has been appointed liquidator before the commencement of this section. (4) A person shall not act as liquidator of a company at a time when he or she is not qualified under section 633 or this section for appointment to that office. (5) If, while acting as liquidator of a company, a person ceases to be qualified under section 633 or this section for appointment to that office, the person shall thereupon vacate his or her office. (6) 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, (ii) the Director, and (iii) if the person had been authorised pursuant to paragraph 5 of the Table to and section 633 to be appointed as a liquidator the Supervisory Authority, (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. (7) A person who contravenes subsection (4) or (5) shall be guilty of a category 2 offence. (8) A person who contravenes subsection (6) shall be guilty of a category 3 offence. (9) As respects a person who has been authorised under paragraph 5 of the Table to section 633 to be appointed a liquidator (a) if the person becomes qualified for appointment as a liquidator of a company by reason of another provision of that Table, the person s authorisation under that paragraph 5 shall thereupon cease to have effect, (b) the Supervisory Authority 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. (10) The Supervisory Authority may, to meet the cost of conducting such inquiries as may be necessary to be conducted for the purposes of its exercising the powers under 7

10 subsection (9)(b), levy, not more frequently than annually, such periodic charge as may be reasonable on any person acting as a liquidator, being a person who so acts by virtue of the person s being authorised under paragraph 5 of the Table to section 633. (11) In this section insurance undertaking means the holder of an authorisation under the European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976); liquidator includes a provisional liquidator. 8