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Directors’ due diligence questionnaire and guidance before swearing a statutory declaration of solvency for a members' voluntary liquidation Why do the directors need to conduct due diligence? When taking steps to prepare a company for winding-up, a number of matters need to be addressed. This Checklist sets out some of the matters the directors should investigate prior to swearing a statutory declaration of solvency for the purpose of placing a company into members’ voluntary liquidation. A full enquiry of the company’s assets and liabilities must be carried out so that the directors can satisfy themselves that the company will be able to pay its debts in full, together with interest at the official rate, within no more than 12 months from the commencement of the winding-up. This issue becomes paramount where an early distribution of assets to members takes place, as any unexpected liabilities could lead to claims being made against the company and possibly the liquidator. Therefore, the liquidator may require shareholders to provide an indemnity, particularly if an...
Ireland—Mediation—personal injury and medical negligence—checklist The Mediation Act 2017 (Ireland) All mediations are subject to the Mediation Act 2017 (Ireland) (MA 2017 (IRL)) which commenced on 1 January 2018. MA 2017 (IRL), s 2 defines mediation as a ‘confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute’. The scope of MA 2017 (IRL) is provided for in MA 2017 (IRL), s 3 which provides that it does not apply to: • arbitrations covered by the Arbitration Act 2010 (Ireland) • disputes under the remit of the Workplace Relations Commission • disputes regarding payment of taxes and customs • judicial review proceedings • proceedings against the State involving breach of fundamental rights and freedoms • proceedings under the domestic violence or child care legislation Obligations on solicitors MA 2017 (IRL), s 14 places wide ranging obligations on practicing solicitors in respect of advising clients on mediation before court proceedings are issued. A...
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Ireland—Methods of alternative dispute resolution This Practice Note provides an overview and introduction to forms of alternative dispute resolution commonly used to settle disputes in Ireland: direct negotiation, mediation, adjudication, arbitration and conciliation. It provides an overview of the key features of these forms of alternative dispute resolution and the governing legislation, namely, the Mediation Act 2017 (Ireland) (MA 2017 (IRL)), the Construction Contracts Act 2013 (Ireland) (CCA 2013 (IRL)) and the Arbitration Act 2010 (Ireland) (AA 2010 (IRL)). Forms of alternative dispute resolution Alternative dispute resolution (ADR) provides a voluntary alternative to litigation to settle civil disputes. The most popular ADR methods used in Ireland will be well recognised to those practising in other common law jurisdictions: arbitration, mediation, direct negotiation and construction adjudication. The process of conciliation, commonly used in Ireland for the resolution of both employment and construction disputes, will often not be familiar to those who practice elsewhere. There is also modest use of other processes on the ADR spectrum, such as expert determination. Likewise, escalating...
Ireland—Civil appeals from the District Court to the Circuit Court This Practice Note considers appeals from the District Court to the Circuit Court in civil proceedings. It provides an overview of the role of the Circuit Court in civil appeals, describes how to start an appeal in the Circuit Court and covers the time limit for appeals and any exceptions. This Practice Note also considers when a stay of the District Court order will be granted pending an appeal. For further guidance on: • the civil court structure in Ireland, see Practice Note: Ireland—Civil courts structure and Ireland—Civil court structure—flowchart • jurisdiction in Irish civil litigation, see: Ireland—Determining jurisdiction in civil litigation—checklist and Practice Note: Ireland—Jurisdiction in civil litigation • civil appeals, see: Ireland—Civil appeals and judicial review—overview Appealing a decision of the District Court—preliminary matters An appeal lies from any decision of the District Court in civil matters to the Circuit Court pursuant to s 84 of the Courts of Justice Act 1924 (Ireland) (CJA 1924 (IRL)) as amended...
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Statutory declaration in support of a further application under the Land Registration Act 2002, Sch 6 made two or more years after an initial application has been cancelled I, [name] of [address], do solemnly and sincerely declare that: 1 On [date] I [and my [wife OR husband OR [other]] ] lodged at HM Land Registry an application to be registered as proprietor of the land ('the Blue Land') edged blue on the plan (now produced and shown to me and marked '1') attached to this declaration ('the Plan'). The freehold estate in the Blue Land is registered, together with that of other land, under title [title number of neighbouring property] of which the registered proprietors are [name(s) of owner(s) of neighbouring property] (‘[define by name, eg 'Mr (and Mrs) Smith’]’). 2 As a result of that application, HM Land Registry issued notices to a number of people, including [Mr (and Mrs) Smith], and [Mr (and Mrs) Smith] responded to the notices issued to them by requiring...
Statutory declaration — adverse possession pre-Land Registration Act 2002 I, [name], of [address], do solemnly and sincerely declare that: 1 As the result of a transfer dated [date] made between (1) [name of seller] and (2) myself [and my [wife OR husband OR [other]] ], [I OR we] acquired the freehold land ('the Red Land') registered under title number [title number of declarant’s property] shown [edged OR coloured OR hatched] red on the plan (now produced and shown to me and marked ‘1') attached to this declaration ('the Plan'). The Red Land comprises the house and garden situated at [address or other description]. On the day of completion of the transfer, [I OR we] entered into possession of the Red Land and have been in continuous possession of it ever since. Shortly after completion, [my OR our] solicitors also applied for [me OR us] to be registered as proprietor[s] of the Red Land and that registration was completed on [date]....
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How should I document a historic lease surrender? What legal issues should I be aware of when dealing with a historic lease surrender? If there has been no express surrender, the surrender must have been by operation of law (or implied). This situation arises whenever the landlord and the tenant act in a manner that is inconsistent with the continued existence of the lease and the fact that the surrender has taken effect by operation of law means that there is no requirement for it to be in writing (see section 52(2)(c) of the Law of Property Act 1925). Delivery of possession by the tenant to the landlord and his acceptance of possession will effect a surrender by operation of law. See Practice Note: Surrender by operation of law (implied surrender) for more details as to behaviour and actions that may constitute a surrender by operation of law. See Practice Note: Lease surrenders for specific examples of surrender. If the lease was registered, and you wish...
What is the position where there is a mistake in the drafting of the tenant’s statutory declaration in order to contract out of the protection of the Landlord and Tenant Act 1954? For example, what if there is an error in the tenant’s name or the declaration omitted to specify the tenant's address? In order for a landlord and tenant to validly agree to contract out of the protection of the Landlord and Tenant Act 1954 (LTA 1954), they must follow the procedure set out in LTA 1954, s 38A(3). The requirements for this process are set out in Practice Note: Contracting out of the Landlord and Tenant Act 1954—procedures, timing and pitfalls. Part of the process involves the tenant signing a simple or statutory declaration. The form of the statutory declaration is set out in the Regulatory Reform (Business Tenancies) (England & Wales) Order 2003, SI 2003/3096, Sch 2, para 8. The question concerns errors in the completion of this statutory form. It may be that this...
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This Q&A considers whether the attorney of a donor can renounce probate on the donor's behalf in a situation where both are appointed as the executors in the Will.
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