Business disputes are as varied as the types of businesses involved. The depth and breadth of experience held by Tully Rinckey solicitors establishes the firm as a valuable resource when representing clients in commercial disputes.
Litigation involves disputes between individuals, businesses, nonprofit organizations, municipalities, or a range of other entities. If you believe you have been wronged by the action or inaction of another party, you may be entitled to sue for damages. In most every instance, you’ll want experienced legal representation that protects your interests and fights for the best possible outcome in your case.
Our experienced litigators provide representation in a wide range of lawsuits, including:
The litigation solicitors at Tully Rinckey know how important it is to promptly find a solution for your dispute. From the filing of a complaint to discovery, from trial to appeal, our litigators bring every resource to bear on your case, with an eye toward securing a speedy settlement or a favorable judgment. If your dispute leads to some form of alternative resolution, such as arbitration or mediation, we can represent your interests there as well.
One of the consequences of setting up a limited company (incorporation) is that the company can sue and be sued in its own name. It has a separate legal personality. In very many respects, the laws of civil litigation as it applies to companies are the same as with people. In many other respects, however, the laws, practices and procedures applicable to cases taken by or taken against companies can differ markedly to those applicable to individuals or partnerships. Here are some questions/issues that you need to consider before you sue a company:
If you, your businesses, or your nonprofit organizations is involved in litigation, either as the complainant or the defendant, the solicitors at Tully Rinckey can represent you. Our solicitors draw on a deep well of trial-tested experience and resources to protect your interests and fight for the best possible outcome in your case.
The simple answer here is the company sues on its own behalf for any wrongs done to the company. The opposite also applies, generally speaking you can normally only sue the company and not its shareholders or Directors, except in limited circumstances. This does give rise to various issues, one such is that a shareholder may not sue for damages done to their share value as a result of damage done to the company, it is the company itself must sue to recover any losses.
This is decided by the company’s Articles of Association (an document which you will receive when you form your company, it can be considered your company’s constitution) Under the standard articles the authority to institute any legal proceedings will be vested in the board of directors of the company as, under these articles, the shareholders usually give up their the general power of management to the directors.
In practice we would recommend that a resolution should be passed by the directors at a properly convened and constituted meeting of the board of directors, to this effect.
In the event that the company goes into liquidation, then it is the liquidator that will issue or defend any proceedings on behalf of the company.
The simple answer to this is that you serve any proceedings on the registered office of the company, either in person or by ordinary post (we would suggest you request proof of such posting from the post office). Registered post is often used but this is not a requirement.
If you feel the company may not be willing to accept your summons, then we would suggest you first send a copy of the summons by ordinary post, (obtaining proof of postage from the post office) and then the next day you can send your summons again by registered post if you wish.
If the unusual situation arises, where the company does not have, for some reason, a registered office, then the Companies Acts state that you may serve your summons directly on the Company Registration Office (‘The CRO’) and it will be deemed good service.
There is a general presumption that service of documents on the registered office is enough to satisfy the courts, however circumstances can arise where this will not always be the case. The courts have held that an Foreign company who served its summons in Ireland, by registered post, on the registered offices of a potential Defendant, which was not delivered to them and unfortunately was also not returned to the sender, was not considered good enough service to satisfy the court. This turned out to be a major issue as the Defendant company subsequently went bust (into liquidation) and the liquidator was able to use the lack of proper service to overturn a judgment for a debt that had been originally granted to the Foreign company.
You can only serve your summons on the company’s solicitors, if they agree to accept them. Any such agreement should be in writing to avoid any subsequent misunderstandings.
Under the companies Acts foreign companies with an established place of business here are required to register their name, address and a contact name, with the Companies Record Office (‘The CRO’). Therefore, it is sufficient to serve any documents personally or by post to the registered contact details.
Under European Regulations a foreign company incorporated outside this state but with a branch here is obliged to register with the Company Registration Office (‘The CRO’). If they fail to register their details, then you can serve your proceedings by leaving it at or sending it by post to any branch established by the company in the State.
You just need proof of posting as you may subsequently need to swear an Affidavit or Declaration of Service, where you will exhibit (show) your proof. This is a legal document, where you swear under oath that you have served the summons, that will satisfy the Courts.
The first and most important question or issue you need to decide before you sue any company is:
There is little or no point in suing a company for a breach of contract, for negligence or for money they owe you, etc., if it turns out that the company has no money(assets) to pay you. All you have done is waste time and incur unwanted legal fees.
As it has a separate legal personality from its owners (shareholders and/or directors) you cannot normally seek to have them made personally liable for the debts of the company, except in very limited circumstances, where the law will allow this.
So from a practical point of view you need to have a credit check or financial investigation carried out against the company, so see if it has sufficient assets to pay you if you are successful.
We can assist you in this regard. Please also see our debt collection service for more information.
Having decided that the company you wish to sue has the assets or wherewithal to pay out if you win and having then successfully obtained your Judgment in the court, see below a brief outline of the issues and options available. Please also see our debt collection section of our website for further information on obtaining and the enforcement procedure available for judgments obtained.
From a practical point of view it has to be said that currently, some of these procedures can give rise to very unsatisfactory outcomes for the person/company who have obtained their judgment.
The primary method of enforcement of a judgment obtained for the payment of money, is for you (the judgment creditor) to obtain an order from the court directed to the sheriff (or if this is outside of Dublin or Cork, the County Registrar) commanding them to seize whatever goods are within their area (bailiwick) belonging to the company (judgment debtor) and to sell those goods, in order give you the sum (money) due, this can also include interest and costs, out of their sale.
In our experience the success of this method will depend on two things, the assets of the company that can be readily realised (as already discussed) and the capabilities of the particular Sheriff or County Registrar.
Under various laws, you (the judgment creditor) have the right to apply to, convert your judgment or order obtained from the Court, into a mortgage against the land or property of the company, provided that the judgment or order requires the payment of a sum of money to you.
Where a judgment mortgage is obtained against a company it is very important that you send two copies (certified by the Property Registration Authority) of the Affidavit required for that purpose, to the company within 21 days after the date of registration and within a further three days from then, you have to also deliver a copy of the Judgement mortgage to the Company Registration Office (‘The CRO’).
One means of enforcing a judgment that is exclusive to company debtors is the creditors’ ability to petition the courts to have the company wound up. A a court ordered winding up has to be taken in the High Court, making it a very expensive process. However, if you have not obtained a judgment, the courts do not look kindly on this action if you are using it simply as a debt collection method. Additionally, if you do decide to wind the company up, if you are an unsecured creditor, you will only be paid with the other unsecured creditors, after the preferential and secured creditors.
The enforcement of High Court orders and judgments against companies is regulated by the Rules of the Superior Courts (these are available online at www.courts.ie)
Order 42, Rule 32 states:
“any judgment or order against a company wilfully disobeyed may, by leave of the court, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by order of sequestration of their property.”
Central to the operation of this rule is that a judgment or order is “wilfully disobeyed” by the company.
It is important to note that a company’s inability to pay a money judgment against it, will unfortunately, not result in “wilful disobeyance” and will not give rise to its officers (usually senior management) being attached (imprisoned).
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