Restriction orders for company directors who allowed insolvent company to be struck off

Company law – insolvency – section 160 of the Companies Act 1990 – appeal of High Court refusal to make disqualification order against the respondents pursuant to s. 160(2)(h) of the Companies Act 1990 – restriction order pursuant to s. 160(9A) of the 1990 Act – s. 42(b)(ii) of the Company Law Enforcement Act 2001 – insolvent companies – obligation on all liquidators of insolvent companies to report to the Director and to bring the prescribed application unless relieved of the obligation to do so by the Director – company’s annual return – s. 12 of the Companies (Amendment) Act 1982 – directors who do not bring about the winding up of an insolvent company, but rather allow it to be struck off the register, cannot escape the prospect of disqualification or restriction – Dr. Deirdre Ahern ‘Director’s Duties, Common Law and Practice’ (Dublin, 2009) – no justification for that to alter or displace the well-established interpretation or implementation of a statutory provision such as s. 160 – trial judge was in error in his departure from the Clawhammer principles – passive directorships – s. 160(9A) unambiguously does no more than permit the court to impose the lesser sanction of a s. 150 declaration on a s. 160 application in an appropriate case – this is a case where the court ought to exercise its discretion under s. 160(9A) of the Act and not make a disqualification order – declaration of restriction under s. 150 for a period of five years in respect of each of the respondents – order of High Court set aside – appeal allowed.