This concerns notification of family and corporate interests. A person is taken to be interested in shares in a body corporate if that body or its directors are accustomed to act in accordance with his directions and instructions. In practical terms how is that going to be determined? I know this is a phrase that comes up in many places in the Bill, but is this all going to be assessed ex post facto?
SECTION 64.
Question proposed: "That section 64 stand part of the Bill."
Yes.
That being so, are people going to have to rely on precedent in previous cases only as a guide for them as to whether they come within the provisions as being accustomed to act in accordance et cetera with somebody else’s directions. Would it be useful to encourage the making of rules of court in regard to this subject which would give guidance to the commercial community as to what constitutes — I think this would relate more or less to a shadow director situation — rather than waiting for people to find out what this means by going through British case law and seeing what was done there and therefore assuming that that is what the Irish judges are going to do as well? Would it not be better to ask the Master, or President of the High Court, to make rules of court that would give a bit of guidance on this subject?
The phraseology that is used here is in section 190 (11) (c) (i) in the 1963 Act. Therefore it has been in use for 26 years and it does not seem to have given rise to problems.
If I am not mistaken, it did not tend to arise that much under the old legislation. What section did you say?
Section 190 (11) (c) (i).
As far as I know that really was not a very effective section. The problem did not seem to arise that much. It is now presumably going to arise quite a lot and people are going to want to know whether they come within it. My suggestion is that the Minister consider whether rules of court should be made rather than wait for the build up of case law over a period which could take quite a while. In matters of this kind, certainty is important in business.
I will draw attention to it but I am wondering if it is appropriate to make rules of court to try to define things in an Act. The rules of court are made by the courts, or by a committee attached to the courts, for procedural purposes, not for interpretative purposes. If you want to interpret an Act you either produce another Act which clarifies it or you get a judge to interpret. I do not think you can do it any other way.
I am prepared to accept that. I ask the Minister if he would between now and Report Stage have a look at this phrase "accustomed to act in accordance with his instructions". That implies that if one is accustomed to act one does not always but one generally acts according to his instructions. He might consider whether that phrase should be clarified further.
I will, but the phrase is used in other parts of the Bill as well and it may not be appropriate to try to tie down a very precise definition because you have to apply the facts and circumstances of a particular case to it. However, I will certainly look at the difficulty the Deputy has drawn attention to.
Question put and agreed to.
Sections 65 and 66 agreed to.