The High Court made a restriction declaration against William O’Flynn under section 819 of the Companies Act 2014, finding he had not shown that he acted responsibly in the affairs of BOD Investments (IRL) Limited. The court had already refused the liquidator’s application against Deirdre O’Flynn.
The judgment, delivered by Mr Justice David Keane on 18 April 2016, first addressed which law applied. The liquidator’s application began under section 150 of the Companies Act 1990, but the relevant provisions of the 2014 Act came into force before the hearing. The court held that it was appropriate to determine this pending application under section 819 of the 2014 Act, relying on the transitional provisions and the Interpretation Act 2005.
The company entered voluntary liquidation, and the liquidator, Gerard Murphy, was appointed at a creditors’ meeting on 18 April 2014. The court accepted uncontroverted evidence that the company could not pay its debts when winding up began and that both respondents were directors at the relevant time. The liquidator had reported to the Director of Corporate Enforcement, who informed him that he was still required to bring the application.
The liquidator’s evidence raised repeated failures to file accounts, including after the company had twice been restored to the register following strike-offs for filing failures. He also identified unpaid tax liabilities: capital gains tax of €93,785 for 2005 and €478,865 for 2006; PAYE and PRSI of €41,211 over 2008 to 2011; and VAT totalling €183,340 for 2006 to 2011. The judge accepted that evidence. O’Flynn had sworn that he had “no objection” to an order and did not contest the application or its supporting evidence. The court concluded he had not established responsible conduct.
The court’s decision on Deirdre O’Flynn was different. It had refused a restriction declaration against her in an ex tempore ruling on 13 July 2015. The judge said her evidence went beyond describing herself as a nominal director: she said she had been actively deceived, sought independent legal advice after learning of undisclosed issues, and later discovered that her signature had allegedly been forged on company documents. The judge considered that evidence sufficient, on the balance of probabilities, to show honest and responsible conduct. He said the matters she raised should be properly investigated by the appropriate authorities.
The judgment makes a restriction declaration against William O’Flynn under section 819(1). It does not make a declaration against Deirdre O’Flynn and does not determine the truth of her allegations of deception or forgery.