Brian Walker BL

1977 COMPANY SECRETARY PRICEWATERHOUSECOOPERS

In 1977 the Irish public company was the main trading vehicle and these companies were listed on the Irish stock exchange. As a company secretary working in PricewaterhouseCoopers in the public company share registration section we dealt with everything from A to Z dealing with the practical side of company law and maintaining the share registers for hundreds of Irish public companies such as Silvermines, PJ Carroll, Irish Oil and Cake Mills, Edenderry Shoe Company, iIndependent Newspapers were just a few of the businesses operating at that time as a public company and these companies were financed by the shareholders who subscribed for the shares on the stock exchange. Computerisation of share records was only coming on stream and we rented time on a big mainframe computer held at the offices of PJ Carroll on Grand Parade!

Our office was located on Earlsfort Terrace near where the companies registration office was located before they moved to Dublin Castle. 

1979  to 1989 COMPANY SECRETARY KPMG

The company secretarial department at KPMG focused mainly on private companies and during that time I was involved in researching new IT solutions for the maintenance of company secretarial records and in particular the share registers in a computerised format in that up until then companies maintained their statutory records in the typical hardcover bluebook “The All in Company Register” containing the usual 7 statutory registers required pursuant to the then Companies Act 1963.

Prior to that it was the Companies act 1908 and a few old-timers in KPMG still had copies of the 1908 Act and table a which was still relevant for a few old companies operating at that time. Then the first amendment was made to the 1963 Act in 1977 with the Companies Amendment Act 1977 which permitted the “All in Company Register” to be maintained in computer format. Transition over to new computerised systems was slow and many a company today still maintains their statutory record in typical hardcover bluebook if at all!

Over the time span of some 10 years I worked as company secretary to some of the most vibrant and largest businesses operating in Ireland again dealing with all the practicalities of company law and compliance with the corporate code and oversaw the transition to fully computerised systems.

1990 to 1994 THE HONOURABLE SOCIETY OF KINGS INNS

I began my studies for the Bar in 1990 at the Honourable Society of Kings Inns and completed my term there in 1994 when I was awarded the Degree of Barrister at Law

1994 to date, Barrister, The Law Library

Practice in the Law Library was a little different some 30 years ago and in particular when all the criminal trials were held in the Four Courts and all of the Criminal Bar practised alongside the Civil Bar and not unusual to have coffee with the late Paddy McEntee SC, Seamus Sorahan SC or Mick Feehan SC. Likewise, as a young barrister of the day you could easily find yourself having coffee in the barrister’s tearooms with other barristers of the day such as Peter Kelly SC, Mary Finlay Geoghegan SC or  Brian Cregan SC  as they were known then before they became judges. accordingly, one learned at an early stage to keep on good terms with all your barrister colleagues in circumstances that one day many are likely to be elevated to the Bench!!

RECENT CASE AND LEGAL WORK

Matters dealt with in a typical day.

APPLICATIONS UNDER THE COMPANIES ACT 2014

Section 212 of the Companies Act 2014-  Remedy in Case of Oppression

This is one of the major areas of my practice as a barrister in the Law library.

There are over 1 million shareholders in private companies and probably close on 1 million company directors.

It’s inevitable that unhappy differences can arise between shareholders of a commercial concern.

Section 212 is the “go to” section for those who complain that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised in a manner oppressive to them or any of the members or in disregard of his or her or their interests as members, affords an entitlement to apply to the High Court for remedies under this section.

The number of remedies available are very far-reaching and time can be of the essence with regard to these applications.

I dealt with my first Section 212 case some 30 years ago acting for a respondent company director who was caught up in a typical “Corporate Divorce” type scenario.

Having examined the claim in detail everyone on the team was fairly convinced that the Section 212 claim was misconceived and we successfully had the High Court proceedings struck out against the applicant.

Similar to family law cases the judges do like the parties and particularly the lawyers to be enthusiastic about the process of engaging in alternative dispute resolution, namely mediation and at some stage or another the parties will be urged by the courts to look at mediation as an alternative to ongoing protracted and expensive litigation and it may or may not be suitable.

Bringing a client successfully through full-blown Section 212 High Court proceedings with an application and at the end to have the proceeding struck out is a good days work.

I set out here below my most frequently utilised applications made in the High Court.

Section 570 of the Companies Act 2014-Definition of Insolvency

Generally speaking a company that cannot pay an undisputed death of €10,000 within 21 days is considered to be insolvent entitling a creditor to bring an application before the High Court seeking to have the company wound up and a liquidator appointed.

The practicalities of issuing 21 Day warnings and using this much underutilised mechanism in the Companies Act 2014 is very far-reaching and needs to be done precisely and exactly within the letter of the law.

Section 569 of the Companies Act 2014-Circumstances in Which a Company May Be Wound up by the Court

The Chancery 2 list of the High Court on a Monday morning deals with winding up petitions mainly in circumstances where companies are insolvent and have failed to pay a debt of €10,000 within 21 days and a creditor has brought an application nominating their own liquidator to wind up the affairs of the company and appoint that liquidator.

These applications are heard first in the list and there are on average 4 to 6 such applications listed every week. However, out of the blue, an unprecedented 19 companies were listed before the High Court on Monday, 10 February 2025.

In circumstances that there are over 320,000 companies registered it’s inevitable that we will see larger numbers of companies listed under this heading were creditors seeking winding up orders going forward into the future and companies must take these applications deadly serious and deal with them accordingly or else face liquidation.

Section 343 of the Companies Act 2014-the CRO District Court Late Filing Fee Waiver Application

This application was first introduced into Irish Law in 2001 whereby a company could apply to the High Court to extend its Annual Return Date, ARD, if late with its statutory returns but provided the application could only be made in the High Court.

I probably brought about half a dozen of these cases but the costs outweighed the benefits as audit exemption at that time was quite low.

Audit exemption today is €15 million!

Unfortunately it’s very easy for a company to be late with CRO returns and companies quite simply do not want to lose audit exemption as most accountants have handed back their auditors certificate and quite simply don’t want to be auditors any more and it’s more expensive and more difficult to find an auditor to take on assignments.

I am delighted to say I have a 100% success rate with this application and long may it last

Section 797 of the Companies Act 2014-Court may Order Compliance by Company Officer

This is one of my favourite sections in the Companies Act 2014 and it is extremely user-friendly and very beneficial to clients.

Accordingly, I use these remedies almost every week and the results are very satisfactory to say the least.

This is a much underutilised application under company law and it deserves to be used on a more regular basis.

Section 53 of the Companies act 2014-Enforcement of Orders and Judgements against Companies and Their Officers

This statutory provision was first introduced on 1 June 2015 in the Companies Act 2014 but prior to that it was available through the Rules of the Superior Courts and introduced into law as a result of the recommendations of the Company Law Review Group in circumstances that it was considered to be such a fundamental exception to the principle of separate corporate personality of the corporate entity that it should be stated in primary legislation and not merely in the Rules of the Superior Courts.

As a practitioner I utilise Section 53 on behalf of clients who have judgements or orders against companies and it is extremely effective and a wonderful attention seeking device when you go to all the trouble of getting a judgement against the company and its being ignored and is a wonderful wake-up call against company directors not paying attention. 

Section 52 of the Companies Act 2014-Security for Costs

Again another great tool in the practitioner’s toolkit.

I utilise this statutory provision against a company as a plaintiff in any action or legal proceedings and it appears clear that the  company may not be able to pay the costs of the defendant, security will be required to be given for those costs and the court may stay all proceedings against the plaintiff company until the security is given.

Section 738-High Court Company Restoration Application

In this application, on a weekly basis, I ask a High Court judge to perform the miracle of corporate resuscitation. For human beings who breathe their last, a miracle is needed to bring them back to life!.

A typical limited liability company is a little different, it may have died a painless death almost  19 ½ years ago but that still entitles me to present a case before the High Court seeking to have the company brought back to life!

Some might consider this a miracle.

However, Section 738 of the Companies Act 2014 entitles the company to make this application and also entitles a creditor who might be owed monies from the company to also restore the company back to the register and bring back to life.

A wonderful weapon in the arsenal of the debt collection barrister 

Section 708 of the Companies Act 2014-Power of Court to Declare Dissolution of the Company Void

This application of sorts is similar to Section 738 save that this application is used where a Company has been liquidated and dissolved. However, the timeline to bring the application is extremely short, the application must be brought within 2 years of the date of dissolution.

This application is usually brought where we find that the company had a property registered in its name unbeknownst to the liquidator or the members of the company directors and this happens on a frequent basis unfortunately 

Company Restoration Applications- HARD CASES

More and more I am been presented with more and more Hard Cases.  Notwithstanding that the law allows you 20 years to make an application to restore a company to the register, it only allows you 2 years if the company has been liquidated and dissolved from the register. These applications I deal with tend to discover after the 20 years that the company actually owned a valuable property and now they are told that under the State Property Act 1954 that the property vests with the State and the Company can no longer be restored to the register.

These are challenging cases but somehow or other we always seem to find a solution and it’s a good days work when we can deliver the property back to the client at the end of the day with the sanction of the court.

Section 567 of the Companies Act 2014- “Switching on” of “Liquidator -type Powers” for unliquidated dissolved/Dissolved Companies

I utilise this really powerful remedy for creditors were corporate body may have been left abandoned unliquidated and may be dissolved and not paying its debts as they fall due for payment and and the results can be excellent.

Section 457 of the Companies Act 2014-CPO provisions to enable a shareholder with more than 80% to CPO shares

Another greatly underutilised provision in company law

Section 842 of the Companies Act 2014-Power of the Court to Make a Disqualification Order against a Company Director

Unfortunately, every so often clients encounter company directors who are unfit for various reasons to be a company director and this section facilitate such an application pursuant to the provisions of the Companies Act 2014.

Section 558 of the Companies Act 2014-SCARP Small Company Administrative Rescue Procedure

For small and micro companies, small company threshold now being increased to turnover below €15 million

Section 610 of the Companies Act 2014-Making Directors Personally Liable

This statutory provision was introduced in 1990 and entitles creditors and liquidators to bring an application before the High Court seeking to peel back the veil of incorporation and make the directors personally liable on account of alleged reckless or fraudulent trading.

This is a worse nightmare for company directors facing such an application and the consequences are extremely serious.

SECTION 587-ADVISING COMPANY DIRECTORS AT A CREDITORS MEETING

I regularly do what’s known as Top Table.

I attend a creditors meeting convened to appoint a liquidator and to advise the chairman of the creditors meeting.

It’s not called a creditors meeting for nothing because it’s a meeting of the creditors and more or less controlled by the creditors having regard for the value of their claims and at the end of the day they decide who will be the liquidator. 

ADVISING INSOLVENCY PRACTITIONERS LIQUIDATORS

Section 631 of the Companies Act 2014-Power to Apply to the High Court for Determination of Questions or concerning Exercise of Powers

This is a very useful mechanism for insolvency practitioners and liquidators to seek the assistance of the High Court and I regularly make this application on their behalf

ADVISING RECEIVERS

SECTION 438 OF THE COMPANIES ACT 2014-power of receiver and certain others to apply to court for directions and receivers liability on contracts

Similar to Section 631 above again this is a very useful mechanism for receivers to seek the assistance of the High Court. 

The Section 609 of the Companies Act 2014-personal liability of directors for not keeping proper books and records. 

Insolvency practitioners and liquidators regularly find following a thorough investigation of the affairs of a liquidated company that the directors did not keep proper books and records. I am regularly involved in such proceedings against company directors allegedly acting in default of not maintaining proper accounting records.

MY MEDIATION PRACTICE

Acting As Mediator or attending a mediation as a barrister

I’ve been an accredited mediator now since 2004 and have attended hundreds of mediations and acted as a mediator.

Again it’s a good days work as a barrister advising clients at a mediation both parties must be thoroughly prepared and ready to hit the ground running in order to benefit from the mechanism of alternative dispute resolution and achieving the desired result

I was a vegetarian in the late 80s.

I am the author of Walkers Vegetarian Dublin published in 1986 which listed restaurants, trains, airlines, hospitals, car ferries were vegetarian’s could find interesting vegetarian dishes,published by Borderline Publications, ISBN 187 0300 00 9

I am also the author of Walkers “Where Can I Eat in Ireland” a guide to over 200 restaurants offering a fresh new approach for vegetarians published by Borderline Publications, ISBN 1 870300 05 X

I lecture regularly to solicitors and accountants for various bodies and organisations in company and insolvency law and have been lecturing in this area for the last 30 years on behalf of the Institute of Chartered Accountants, The Institute Of Certified Public Accountants and the Institute of Chartered Management Accountants And the Institute of International Accountants

I am available to undertake certain pro bono and voluntary assignments and please contact me for further details.

Please see below a selection of cases I have been involved with over the last 30 years

Here is a selection of cases that I have been involved with that have been reported