Information for ICAS Members continuing or taking new insolvency appointments in Ireland following the Brexit transition period
By Steven Wood, Practice Support Specialist (Insolvency)
19 October 2020
Brexit finally took place on 31 January 2020, with the withdrawal agreement including a transition period through to 31 December 2020.
Following a number of Member enquiries, Steven Wood sets out the position for UK-based Members continuing, or taking new, insolvency appointments in the Republic of Ireland after the Brexit transition period ends on 31 December 2020.
Liquidation
To act as a liquidator a person must fall within of paragraph of the table to section 633 of the Companies Act 2014 (CA2014).
In summary those qualifications are:
- Member of prescribed accountancy body
- Practising solicitor
- Member of professional body recognised by IAASA
- Person qualified under the laws of other EEA state
- Person of practical experience
There are also specific disqualifications set out at section 635 of CA2014.
ICAS is a ‘prescribed accountancy body’ for the purposes of the first paragraph of section 635. Therefore, in the absence of any legislative changes, any member of ICAS who holds a current practising certificate and is not prohibited by ICAS from acting, will see no impact on their ability to continue current, or take new, liquidation appointments in the Republic of Ireland post-Brexit transition period.
This applies to all forms of liquidation – Members voluntary winding up, creditors voluntary winding up and court liquidation.
Receivership
There are no positive qualification requirements for acting as a Receiver set out in CA2014. The only qualifications are the negative ones set out at Section 433, namely that a person cannot be:
- an undischarged bankrupt;
- a person who is, or has been within 12 months of the commencement of the receivership, an officer or employee of the company;
- a parent, spouse, civil partner, brother, sister or child of an officer of the company;
- a person who is a partner of or in the employment of an officer or employee of the company;
- a person who is not qualified by virtue of Section 433(1) for appointment as a receiver of the property of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company or would be so disqualified if the body corporate were a company;
- a body corporate.
As with liquidations, in the absence of any legislative changes, ICAS Members will see no impact on their ability to continue current, or take new, receivership appointments in the Republic of Ireland after 31 December 2020.
Examinership
Section 519 of CA2014 sets out that a person shall not be qualified to be appointed or act as an examiner of a company unless he or she would be qualified to act as its liquidator (disregarding the requirements concerning professional indemnity cover).
Therefore, the comments above in relation to liquidation appointments apply equally to examinership appointments.
Personal insolvency
The Personal Insolvency Act 2012 (Authorisation and Supervision of Personal Insolvency Practitioners) Regulations 2013 set out the qualification criteria, authorisation requirements and regulatory standards that must be met for an individual to be authorised to carry on the practice of a Personal Insolvency Practitioner.
An individual may make an application to carry on practice as a Personal Insolvency Practitioner if that individual:
- is a Solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts 1954 to 2011) is in force;
- is a Barrister at law called to the Bar of Ireland;
- is a qualified Accountant and a member of a prescribed accountancy body (within the meaning of section 4 of the Companies (Auditing and Accounting) Act 2003;
- is a Qualified Financial Advisor who holds a current qualification from the Life Insurance Association of Ireland (LIA), the Insurance Institute or the Institute of Bankers School of Professional Finance; or
- holds a qualification in law, business, finance or other appropriate similar qualification to the satisfaction of the Insolvency Service recognised to at least level 7 of the National Qualifications Framework by Quality and Qualifications Ireland (or equivalent).
Again, ICAS is a ‘prescribed accountancy body’ for the purpose of the Regulations. Therefore, once again assuming that there are no legislative changes, and the other standards set by the Insolvency Service of Ireland are met, there should be no impact on the ability of ICAS Members to continue current, or take new, personal insolvency appointments in the Republic of Ireland post-31 December 2020.
Summary
As matters stand there should be no impact the ability of ICAS Members to continue current, or take new, insolvency appointments in the Republic of Ireland at the conclusion of the Brexit transition period on 31 December 2020.
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