Examinership Lite2019-08-27T09:48:56+00:00

Examinership Lite

As the Country begins to emerge from destructive recession, many small and medium sized enterprises are continuing to struggle to survive in circumstances where historical debt and pre-recession contracts (e.g. inappropriate upward only rent reviews, unaffordable rents, etc.) place an unsustainable burden on the company’s business. While an embattled company may very well be a viable business and, indeed, may otherwise have a positive future in the brightening economic environment, these debts and legacy issues act to prevent the resurgence of the company’s business.

As a result of the hangover of the recent boom and crash the fear is that, in the absence of suitable intervention, well managed Irish companies with good businesses will continue to fail in the years to come. If a company has a good business but is failing to thrive by reason of historical debt or legacy contracts, Examinership (and indeed Examinership lite) may well be the most suitable option to save the company.

Examinership is a process where the Court provides protection and oversight to a petitioning company to allow it, with the assistance of the appointed Examiner, to explore all options to save the company’s business so that it might thrive into the future. To date, the Examinership process has been underused by Irish companies.

There was a perception that Examinership was a prohibitively expensive High Court process reserved for large companies. While it is certainly the case that many high profile large companies have entered Examinership in recent years, Clarke Jeffers has successfully assisted several enterprises from the SME market through the High Court Examinership process.

On 24th December 2013, the President signed into law the Companies (Miscellaneous Provisions) Act, 2013 which provides for Examinership in the Circuit Court. This new departure has become known as “Examinership Lite”. It is hoped that this extension of jurisdiction will encourage insolvent small and medium sized companies whose core business remains viable to seek the protection and assistance of the Court by way of Examinership. It has been our experience that the High Court has been very supportive of suitable SME companies entering Examinership; we expect this sympathetic and encouraging attitude will be mirrored in proceedings in the Circuit Court under Examinership Lite.

A small and medium sized enterprise will be allowed to bring their Examinership application in the Circuit Court jurisdiction if it meets at least two of the following three conditions.

  • The company’s balance sheet is less than €4.4 million.
  • Turnover at the company is less than €8.8 million.
  • The company has less than 50 employees.

In Examinership, Court protection is granted for an initial period of seventy days (which can be then extended by a further thirty days at the Courts discretion). During this time creditors (i.e. trade creditors, lending institutions, landlords, hire purchase and leasing companies, Revenue etc.) are prevented from enforcing debts against the company; a liquidator or receivers cannot be appointed to the company and no winding-up proceedings may be taken. Effectively the court’s protective shield provides “breathing space” to allow the Examiner, working with the company’s management, time to assess the position and to set about designing a scheme of arrangement with creditors which may involve the writing down of debt, the disclaimer of onerous leases or contracts, etc.

Under the process, management of the company remain in control. The Examiner assists the company through the Examinership process and, ultimately, his role is to try and formulate a scheme of arrangement to allow the company to survive and thrive into the future. At the heart of the process is the desire to save good businesses and the jobs they provide in the community. The process favours consensual “deals” with classes of creditors; however, if at the conclusion of the process, the Court forms the view that the Examiner’s scheme of arrangement is fair and that it provides a reasonable basis for the survival of the company, it may impose the terms of the scheme of arrangement on objecting creditors.

Clarke Jeffers & Co can advise on all aspects of corporate restructuring and advice on the options open to and suitable for you and your business.

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Clarke Jeffers | Professional Commercial Individual Personal Solicitors in Carlow and Dublin Ireland
Clarke Jeffers | Professional Commercial Individual Personal Solicitors in Carlow and Dublin Ireland
Clarke Jeffers | Professional Commercial Individual Personal Solicitors in Carlow and Dublin Ireland
Clarke Jeffers | Professional Commercial Individual Personal Solicitors in Carlow and Dublin Ireland
Clarke Jeffers | Professional Commercial Individual Personal Solicitors in Carlow and Dublin Ireland