Corporate Governance and Administration Conference
Jury’s Hotel, Ballsbridge
25 March 2003
“Ensuring Compliance in Your Company”
Paul Appleby
Director of Corporate Enforcement
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
Role of the ODCE
Encouraging Compliance Uncovering Company Law Breaches Prosecuting Detected Breaches Sanctioning Improper Conduct in
Insolvent Companies Delivering Quality Services
Interaction with Agencies/Bodies
(1) Compliance Development of Guidance for Company
Directors, Auditors, Liquidators, etc. Promotion of Compliance Message Legislative Change/Implementation
Interaction with Agencies/Bodies
(2) Investigation/Enforcement Persons subject to a Reporting Obligation Information-Sharing Arrangements CRO, Courts, DPP’s Office, etc.
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
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
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
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
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
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
Investigative/Enforcement Role (2)
Process of Investigation Filtering Assessment Collection of Evidence Decision-Making
Investigative/Enforcement Role (3)
Decision Options Voluntary Compliance Insufficient Evidence Civil Remedy Restriction/Disqualification Summary Prosecution Prosecution on Indictment
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
Sources of Information
www. odce .ie About the ODCE ODCE Services ODCE Publications/Statements Legislation Court Decisions
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