This section deals essentially with the examination that the examiner shall carry out and he must report to the court within 21 days on the results of his examination. Is it likely that he will be able to get all the information he needs within 21 days?
This section sets out the basic duties of the examiner who has been appointed to a company under section 155. The basic intention here is not that an examiner should take over the running of the business of the company, except where it is absolutely necessary in the interest of the company. That is very often the case with a receiver and, sometimes, with a liquidator too. What is intended here is that an examiner should go into the company, ascertain the financial state of the company, form an opinion as to whether the company is capable of being rescued and, if it is, draw up proposals for a scheme of rescue.
In this regard the examiner will have to report to the court on two occasions. Firstly, under the present section 167 the examiner must report to the court within 21 days after he has been appointed, giving the information set out in section 168. Then, at a later stage, when the examiner is of the opinion that the company could be saved, section 170 provides that he must report to the court with proposals for a compromise or scheme of arrangement within 42 days of his appointment, or such further period as the court may allow. While this is his basic duty, however, section 167 confers a number of other ancillary functions on the examiner. For example, he is required to deliver a copy of his report to the company automatically, or to any interested party on written request from creditors and members and without charge. In the case of these interested parties the court is empowered to authorise the supply of abridged copies only, omitting material the court considers confidential or sensitive that would prejudice the company's survival. In relation to the question raised by Deputy Bruton section 167 (1) states: "or such longer period as the court may allow". It can be more than 21 days.
The examiner must supply a copy of his report to an interested party on written application. He can leave out as much as the court directs and the court will so direct him if it feels that the survival of the company, or any part of its undertaking, would be put at risk. How is this going to operate in practice? If the examiner on his appointment gets in a written request within the 21 days before the court actually gets the report, once he produces the report it seems to me that he is obliged to send it out straightaway to the interested party. Does the court have any period to study the report and decide whether the publication of any part of it would be prejudicial to the survival of the company?
I am sorry, Chairman, I am getting some advice on this.
It does not reflect at all on the Minister. It is in order for officials to answer questions.
I do not think so, Chairman.
I understand that officials may but their intervention appears in the name of the Minister in the record. That might save time.
In my 13 years here we follow a procedure because I have to be satisfied that a reply is in order. I cannot be so satisfied if the official answers directly. I am afraid we will have to comply with the procedure even though I have to be briefed by my officials, which is only reasonable when a question is being put forward. In this regard Deputy O'Dea has put forward a point of view in relation to section 167 (4). We see from that a point that could be addressed under section 168. We feel the examiner should put forward a report recommending certain deletions to the courts. We may have to specify that as you suggest, and we think that section 168 would be the appropriate section to either add to the last item or elaborate further in that regard. It is a point which would clarify and improve the details of this section. As it happens, under that section, the court would not have an opportunity to assess the parts that should be deleted. They have to rely on the examiner to do that. We should specify that in advance, because it is very difficult for the courts to decide which section to delete. The examiner should say they are very critical points and should be deleted before the report is actually issued. To make that crystal clear it is worthwhile putting it into section 168. At this stage I would not be in a position to draw up any quick amendment. Again we now give a commitment that, if necessary — and we feel it would be necessary — we will propose an amendment on Report Stage.
The point is that section 168 says what should be in it and it might also say what should not be in it.
Is it reasonable to withhold information? Suppose it was a creditor who sought information: his money is at stake and information is withheld from that person which could affect his judgment in doing business for the future.
I think the point to be made on Report Stage is that certainly in no way would a deletion be allowed under statute which would be prejudicial to the creditor or any class of creditors. There may be the fact that a court is a place of public record or maybe confidential commercial information which is not relevant to the issues before the court and which might be very good information for a competitor, similar to an annual report. You do not like giving that sort of information out.
If we can work out a suitable addition to section 168 the examiner's recommendations would only be recommendations to the court and the court would ultimately decide whether that information should or should not be deleted, and they would be very careful, I feel, in the circumstances that it would be appropriate or inappropriate as circumstances may dictate. Maybe Deputy Barrett will come back and say that we are relying too much on the courts to decide in these situations but we have no choice in the circumstances because every case is completely different. We cannot start laying down totally hard and fast rules that would comply with every situation. Once we refer it to the court, the examiner puts forward certain proposals; the court will decide on what should or should not be deleted and may decide to delete nothing from the report.
So far as questions relate to whether we delete anything there are circumstances where we should delete. There is a double safeguard between the examiner and the court subsequently.