Dáil Éireann Debate, Thursday - 14 February 2019
126. Deputy Maurice Quinlivan asked the Minister for Business, Enterprise and Innovation the number of persons who have been disqualified as a director of a company, restricted as a director of a company, prosecuted and convicted as a result of ODCE investigations in 2018, in tabular form; and if she will make a statement on the matter. [7438/19]
View answer127. Deputy Maurice Quinlivan asked the Minister for Business, Enterprise and Innovation the number of complaints the Office of the Director of Corporate Enforcement received in 2017 and 2018; the number of these that resulted in action being taken by the ODCE; and if she will make a statement on the matter. [7439/19]
View answer128. Deputy Maurice Quinlivan asked the Minister for Business, Enterprise and Innovation the number of investigations initiated by the Office of the Director of Corporate Enforcement in 2018 and to date in 2019; and if she will make a statement on the matter. [7440/19]
View answerI propose to take Questions Nos. 126 to 128, inclusive, together.
Section 949(3) of the Companies Act 2014 provides that the Director of Corporate Enforcement shall be independent in the performance of his statutory functions.
I, as Minister for Business, Enterprise and Innovation have no direct function in such matters. However, the 2017 Annual Report of the Office of the Director of Corporate Enforcement (ODCE) states that 234 complaints were received from members of the public in 2017. I understand that the compilation of the 2018 Annual Report is currently underway.
I am informed that in 2018 there were:
- 29 cautions issued
- 25 production orders issued (under the Companies Act 2014, the Criminal Justice (Theft & Fraud Offences) Act 2001 and the Criminal Justice Act 1994)
- 5 arrests and detentions of suspects
- 15 charges were directed by the DPP on indictment
The number of investigations per se does not represent the totality of the work of the ODCE; firstly because of the volume of liquidation cases and secondly because not all investigations result in a prosecution. As will be seen from the ODCE’s Annual Reports, complaints are not always relevant to the remit of the Office; where they are within the remit the matter is investigated. It should be noted that not all investigations are of a criminal nature and the ODCE policy is to seek rectification of breaches in the first instance (where the matter is appropriate for such action).
The provisional figures for prosecutions initiated, convictions, disqualifications and restrictions of Directors for 2018 are set out in tabular form below:
|
No of prosecutions initiated |
Number of convictions |
No of Director Disqualifications |
No of Director Restrictions |
|
1 |
2 |
31 (24 by Disqualification Undertaking; 7 by Court Orders) |
148 (125 by Restriction Undertakings 23 by Court Orders) |
As the above figures are provisional they are subject to change.
The ODCE also exercised its right to make certain compliance applications to the High Court under Section 371 of the Companies Act 1963, now Section 797 of the Companies Act 2014, to secure compliance with Orders sought.
However, it should be borne in mind that, working within the context of a rectification policy, many issues can be addressed by exercise of powers without the necessity of bringing issues to the Courts for determination, for example: production of registers; directing the holding of Annual General Meetings; production of minutes of meetings; and regularising breaches of the director loan provisions which, in 2017, secured the rectification on a non-statutory basis, of suspected infringements of the Companies Act 2014, in relation to Directors’ loans in 39 cases, to an aggregate value of €15.5m approximately.
The ODCE took a decision in recent years to concentrate its resources on more serious and complex investigations, the result of which is usually the submission of a file to the Director of Public Prosecutions (DPP) for consideration, as opposed to a summary prosecution.
In terms of prosecutions, the Director of Corporate Enforcement is only statutorily empowered to initiate summary prosecutions (i.e. prosecutions of relatively minor offences in the District Court).
More serious alleged breaches of company law are prosecuted on indictment in the Circuit Court and only the Director of Public Prosecutions (“DPP”) can direct that charges be preferred on indictment.
Furthermore, since June 2015, company directors facing restriction or disqualification proceedings before the Courts, can avoid Court proceedings by voluntarily agreeing to be restricted or disqualified for certain periods. This provision ensures that company directors, who are considered to be in breach of the Companies Act 2014 and facing restriction or disqualification proceedings, are dealt with in an efficient and effective administrative manner without the need for the involvement of the Courts.
