On 9 January 2026, the Commercial Court (Quinn J.) delivered a written judgment in respect of a wide-ranging application in which Hayes acted for Myles Kirby (“the Applicant”) as liquidator of three related companies.

Background

The Applicant was appointed liquidator of Hynes Jewellers (Wexford) Ltd, JW Fashions Ltd and Tuskar Property Holdings Ltd (the “Companies”) following High Court Petitions brought by the Revenue Commissioners. The Applicant brought proceedings against five Respondents, who were directors,  former directors or connected parties to the Companies.

The reliefs sought included declarations that the First Named Respondent was a shadow or de facto director and orders seeking to hold then Respondents personally liable for the debts of the Companies.

Issues Before the Court

The Court was required to consider the Applicants findings and determine, among other matters, whether:

• The First Named Respondent acted as a shadow and/or de facto director of the Companies  Section 222 of the Act;
• Whether the Respondents should be held personally liable for the debts of the Companies whether pursuant to:
  • Fraudulent or Reckless Trading – Section 610 of the Act
  • Failure to keep proper books and accounts – Section 609 of the Act
  • Improper transfer of company assets – Section 608
  • Misfeasance – Section 612
• Whether the respondents should be disqualified from acting as directors Section 842

Key Findings of the Court

De facto directorship

The Court found that the First Named Respondent, although not formally appointed as a director, exercised real decision-making power over the companies’ financial and operational affairs and did so in an overt manner. On that basis, the Court held that he acted as a de facto director, rather than a shadow director, and was subject to the same statutory duties and liabilities as an appointed director.

Fraudulent and reckless trading

The Court ruled that the First Named Respondent was knowingly party to the carrying on of the business of the Companies with intent to defraud creditors and that he be personally liable, without limitation of liability, for all of the debts of the Companies.

The Court ruled that the Third Named Respondent facilitated the actions of the First Respondent, resulting in the losses incurred by creditors, and this amounted to reckless conduct. The Third Named Respondent was held liable for the debts of the Company he was a director of.

Books and Accounts, Misfeasance and Improper Transfer of Assets

The Court was satisfied that company assets had been misapplied and that certain transactions warranted remedial orders. The Court made an order for personal liability, in a lesser amount, for failing to keep proper books and records.

Disqualification

In the course of the trial the Applicant gave evidence that while being subject to an order of disqualification, the First Named Respondent continued to act as a de facto director and that the First Named Respondent was the “most dishonest director” he had ever dealt with. The Court ordered that the First Named Respondent be disqualified for a period of 18 years. This is the longest period of disqualification ever imposed by the Irish Courts.

The Second and Third Named Respondents were disqualified for a period of 7 and 12 years respectively.

Practical Implications

This decision offers a number of important takeaways for both insolvency practitioners and company advisers.

Firstly, individuals who assume control over a company’s affairs risk being treated as directors in law, regardless of formal title or appointment;

Secondly, the Court will not hesitate to impose personal liability where directors conduct knowingly or recklessly results in harm to creditors;

Thirdly, the Act gives liquidators strong legal powers to claw back assets lost through misconduct or improper transfer, and the courts continue to treat those powers as fundamental to insolvency cases; and

Fourthly, director disqualification continues to play a key role in addressing serious corporate misconduct.

If you have any questions related to insolvency maters or directors’ responsibilities under the Companies Act 2014, please contact Joe O’Malley (jomalley@hayes-solicitors.ie) or Michael Kelly (mjkelly@hayes-solicitors.ie).