Case notes - Re New Look Retailers (Ireland) Ltd: One Step Forward and One Step Back for the Examinership Process

AuthorRory Clarke
Pagespp 156 - 169
Published date12 January 2022
Date12 January 2022
156
Re New Look Retailers (Ireland) Ltd:
One Step Forward and One Step Back
for the Examinership Process
RORY CLARKE*
I. Introduction
Examinership was urgently introduced in Ireland in response to the Goodman crisis
in the early 1990s.1 It eectively allows a struggling company to avail of a period of
Court sponsored protection, shielding it from its creditors and other stakeholders.
is protection is extended with a view to restructuring the business, altering its
business model and strategy and/or seeking new investment.
e policy premises underlying such corporate rescue have been explored in several
Superior Court decisions,2 most notably Re Trac Group.3 In that case Clarke J (as
he then was) highlighted that the process’ ‘principal focus’ was enabling enterprises
to continue as going concerns, for general economic benet, or ‘of equal, or indeed
greater importance’, to maintain jobs.4 Examinership’s inherent purpose was to
attempt to save those companies which were ‘temporarily sick’ rather than either
healthy or terminally ill. Although conceived and passed in an expedited fashion,
this legislation cohered with the key recommendations of the Cork Committee
on Insolvency Law and Practice,5 namely that ‘concern for livelihood…of those
dependent upon an enterprise … is a legitimate factor’ in modern insolvency law.6
Central to corporate rescue systems are inescapable calculations of possible societal
benets versus highly probable creditor disadvantage.7 In 1994, the Company Law
Review Group (the ‘CLRG’) recognised the existence of an impairment of rights
and interests, for both creditors and the competitors of companies who emerge
* B.B.L. (UCD), F.E.1. Candidate. e author wishes to acknowledge the sta and students
of UCD Sutherland School of Law and, in particular, Dr. Noel McGrath. Any views or
opinions expressed in this article are the personal views and opinions of the author.
1 Dáil Deb 28 August 1990, vol 401, col 8.
2 Re Antigen Holdings [2001] 4 IR 600 (HC), 604; Atlantic Magnetics Limited [1993] 2 IR 561
(HC), 578; Selukwe Ltd (HC, 20 December 1991) [22].
3 Re Trac Group Limited [2007] IEHC 445, [2008] 3 IR 253.
4 ibid 260.
5 Paul Davis and Sarah Worthington, Gower; Principles of Modern Company Law (10th edn, Sweet &
Maxwell 2016) para 32.34.
6 Review Committee on Insolvency Law and Practice, Report of the Review Committee on Insolvency
Law and Practice (1982) Cmnd 8558, [198(j), 203].
7 Vanessa Finch and David Milman, Corporate Insolvency Law: Perspectives and Principles (3rd edn,
Cambridge University Press 2017) Ch 6.

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