Kirk -v- Kershaw & ors [2016] IEHC 122 (16 February 2016)

Kirk -v- Kershaw & ors [2016] IEHC 122 (16 February 2016)

The first named respondent was found to be a shadow director within the relevant period and bore primary responsibility for the company's failures, including the build up of Revenue liabilities and failure to keep proper records. The second and third respondents were found to be 'puppet' directors acting under the instruction of the first named respondent and their father, and failed to discharge their statutory duties. The fourth and fifth respondents, while open to some criticism for accepting directorships without ensuring compliance, were not primarily responsible for the company's failures and had cooperated with the liquidator. Restriction orders were made against the first, second,...

Citation
[2016] IEHC 122
Parties
Applicant: Ciaran Kirk; Respondent: Mark Kershaw; Respondent: Philip Kershaw; Respondent: Ciara Kershaw; Respondent: John Meade; Respondent: Ryan Cunningham
Jurisdiction
Ireland
Judgment Date
16 February 2016
Procedural Posture
Company Law Application (restriction of Directors) / High Court Judgment on Application for Restriction Orders
Outcome
Restriction orders made against first, second, and third named respondents; application refused against fourth and fifth respondents.
Legal Topics
Restriction of Directors, De Facto and Shadow Directorship, Director Responsibilities, Company Insolvency, Failure to Keep Proper Books and Records, Revenue Liabilities, Cooperation With Liquidator
Company Law Insolvency Restriction of Directors De Facto and Shadow Directorship Director Responsibilities Company Insolvency Failure to Keep Proper Books and Records Revenue Liabilities +1 more

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Parties

Ciaran Kirk

Applicant

Mark Kershaw

Respondent

Philip Kershaw

Respondent

Ciara Kershaw

Respondent

John Meade

Respondent

Ryan Cunningham

Respondent

Procedural Posture

Company Law Application (restriction of Directors) / High Court Judgment on Application for Restriction Orders

Legal Issues

  1. 1 Whether the first named respondent was a de facto or shadow director within 12 months prior to liquidation
  2. 2 Whether the first to third named respondents acted honestly and responsibly as directors
  3. 3 Whether the fourth and fifth named respondents should be restricted as directors

Ratio Decidendi

The first named respondent was found to be a shadow director within the relevant period and bore primary responsibility for the company's failures, including the build up of Revenue liabilities and failure to keep proper records. The second and third respondents were found to be 'puppet' directors acting under the instruction of the first named respondent and their father, and failed to discharge their statutory duties. The fourth and fifth respondents, while open to some criticism for accepting directorships without ensuring compliance, were not primarily responsible for the company's failures and had cooperated with the liquidator. Restriction orders were made against the first, second,...

Court Disposition

Restriction orders made against first, second, and third named respondents; application refused against fourth and fifth respondents.

Orders

  • Restriction order pursuant to s.819 Companies Act 2014 (formerly s.150 Companies Act 1990) against Mark Kershaw, Philip Kershaw, and Ciara Kershaw for five years.
  • Application for restriction refused as against John Meade and Ryan Cunningham.