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

• Date: 01 January 2021

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.