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Page 1: Corporate Governance and Administration Conference

Corporate Governance and Administration Conference

Jury’s Hotel, Ballsbridge

25 March 2003

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“Ensuring Compliance in Your Company”

Paul Appleby

Director of Corporate Enforcement

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Outline of Presentation

Role of the ODCE Interaction with Agencies/Professional Bodies Directors’ Duties to ensure Compliance ODCE’s Investigative/Enforcement Role What to do if approached by ODCE

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Role of the ODCE

Encouraging Compliance Uncovering Company Law Breaches Prosecuting Detected Breaches Sanctioning Improper Conduct in

Insolvent Companies Delivering Quality Services

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Interaction with Agencies/Bodies

(1) Compliance Development of Guidance for Company

Directors, Auditors, Liquidators, etc. Promotion of Compliance Message Legislative Change/Implementation

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Interaction with Agencies/Bodies

(2) Investigation/Enforcement Persons subject to a Reporting Obligation Information-Sharing Arrangements CRO, Courts, DPP’s Office, etc.

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Directors’ Duties (1)

The Company – a Separate Legal Person General Duties of Directors

Act in the Company’s (not Personal) Interest Act with Due Care, Skill and Diligence

Defined Legal Obligations/Constraints Disclosure Requirements

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Directors’ Duties (2)Company Documents to be kept,

updated and made available Register of Members Register of Directors and Secretary Register of Directors’/Secretary’s interests Register of debenture holders Directors’ Service Contracts Minute Books

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Directors’ Duties (3)

Basic Operational Obligations Keeping proper books of account Holding the annual general meeting (AGM) Circulating to members before every AGM a

signed copy of the balance sheet, profit and loss account, director's and auditor's report

Holding an extraordinary general meeting when circumstances require

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Directors’ Duties (4)

General Filing Obligations Change in constitution of company Change in registered office Change of directors/secretary Increase in Nominal/Issued Capital Annual return Mortgages and charges

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Directors’ Duties (5)

Burden of Proof 1963-2001: Burden with the Prosecutor

to prove “knowing and wilful default” Now: Burden with the Defendant to

prove that he took “all reasonable steps to prevent” default

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Investigative/Enforcement Role (1)

Main Triggers for Investigation Auditor Reports of Indictable Offences Liquidator Reports on Insolvent Companies Public Complaints Matters in the Public Domain

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Investigative/Enforcement Role (2)

Process of Investigation Filtering Assessment Collection of Evidence Decision-Making

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Investigative/Enforcement Role (3)

Decision Options Voluntary Compliance Insufficient Evidence Civil Remedy Restriction/Disqualification Summary Prosecution Prosecution on Indictment

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What to do if contacted by ODCE

Don’t Panic! May be no element of culpability

Co-operate! Entitled to seek certain registers, etc. Seek professional advice in case of doubt May require search warrant in other cases

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Sources of Information

www. odce .ie About the ODCE ODCE Services ODCE Publications/Statements Legislation Court Decisions