Judgment: 2010-07-29 · Court archive

High Court caps examiner’s hourly rates in failed Capital Bars examinership

Mr Justice Clarke set lower rates for KPMG examiner Kieran Wallace and his staff, while leaving the precise total costs for a later calculation.

High Court · [2010] IEHC 394

Who, what, where, when and why

Who
  • Marino Limited
  • Perfect Pies Limited
  • Vikram Limited
  • Mount Street Pub Limited
  • Kieran Wallace
  • receiver
What

Mr Justice Clarke set lower rates for KPMG examiner Kieran Wallace and his staff, while leaving the precise total costs for a later calculation.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

Mr Wallace sought €560 an hour for partner-level work, with rates for other staff ranging from €405 for an Associate Director to €100 for a Trainee Accountant. The court compared those figures with rates considered in earlier examinership cases, including Missford and B.A. Engineering. Mr Justice Clarke said examiner costs have priority over other claims under section 29(3), making careful scrutiny necessary because creditors may ultimately bear the cost of a failed examinership.

The High Court set maximum hourly rates for the examiner of the Capital Bars group after its examinership failed, but did not fix the final sum payable in the judgment.

Mr Justice Clarke delivered the ruling on 29 July 2010 in proceedings concerning Marino Limited, Perfect Pies Limited, Vikram Limited and Mount Street Pub Limited. Kieran Wallace of KPMG was appointed interim examiner on 18 September 2009 and confirmed on 6 October. After the examinership failed, his appointment ended and the statutory protection of the companies ceased. A receiver had been appointed by the time Mr Wallace applied under section 29 of the Companies (Amendment) Act 1990 for remuneration, costs and reasonable expenses.

The receiver argued that the hourly rates sought were too high and proposed a reduction of €100 per hour across the board. There was no dispute in this hearing about the amount of work claimed: the judge said it was justified by the course of the examinership. The dispute concerned rates.

Mr Wallace sought €560 an hour for partner-level work, with rates for other staff ranging from €405 for an Associate Director to €100 for a Trainee Accountant. The court compared those figures with rates considered in earlier examinership cases, including Missford and B.A. Engineering. Mr Justice Clarke said examiner costs have priority over other claims under section 29(3), making careful scrutiny necessary because creditors may ultimately bear the cost of a failed examinership.

The judge declined to impose one uniform rate for all examiners, noting differences in firms’ expertise, efficiency and overheads. But he said it was inappropriate to accept very wide differences in rates for court-appointed examiners.

He proposed rates of €375 an hour for partner-level personnel, €300 for an Associate Director, €260 for a Manager, €200 for a Senior Accountant and €80 for a Trainee Accountant. The judgment says the court would approve the examiner’s costs and expenses once the precise total was calculated on that basis, together with other costs not contested at the hearing. The judge said his rough calculation suggested the resulting total would be reasonable having regard to the work’s difficulty, importance and value.

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