Special Committee Companies Bill, 1962 debate -
Tuesday, 2 Apr 1963

SECTION 245.

Mr. Byrne

I move amendment No. 81 :

To delete subsection (4) and substitute the following subsection:

" (4) A person who is examined under this section shall not be entitled to refuse to answer any question put to him save on the ground that his answer might incriminate him. Such person may be represented at the hearing by a solicitor and counsel, and counsel retained by him shall be entitled to examine him on any matters which, in the opinion of the court, are relevant and necessary for the purposes of explaining the conduct of the person being examined. "

I am moving this amendment on behalf of Deputy D. Costello in order to hear the Minister's observations.

Mr. J. Lynch

Section 245 is a re-enactment, with some minor changes, of Section 174 of the old 1908 Act. It is an important section in the frame-work of winding up and has often been found useful in extracting from fraudulent directors information in regard to the disposal of the company's funds and property. The purpose of the amendment is to delete subsection (4) and to substitute for it a new subsection (4). Subsection (4) as it stands in the Bill is new. At present any person summoned before the court may refuse to answer a question if he considers that the answering of it would incriminate him. This has taken considerably from the usefulness of the section. The right to refuse to answer on this ground is therefore being removed but it is being provided that any answer given shall not be admissible as evidence except in the case of any criminal proceedings for perjury in respect of any such answer. Therefore, the first sentence of the amendment is directly contrary to the intentions of the drafting in the subsection as it stands.

Chairman

I wonder would it be wiser to leave this over for re-commital in case Deputy Costello who tabled the amendment wants to argue the point.

Mr. Byrne

I have no doubt there is some technical consideration.

Mr. J. Lynch

I believe it is the old objection of requiring a person to answer questions where it will incriminate him.

Major de Valera

The only possible objection to the section as it stands is that the answer might prejudice a jury in criminal proceedings afterwards. It is a question of trial by jury in criminal proceedings in company matters which perhaps we will have to consider separately elsewhere.

Mr. J. Lynch

I believe that most of these examinations take place in chambers.

Amendment, by leave, withdrawn.

Section 245 agreed to.