insolvency. The company may have done nothing, may have taken the view that it is terminally insolvent and placed itself into liquidation, or it may have sought to avail of one of the statutory restructuring processes referred to above. If the company has done nothing, a creditor of that company may petition the court to have the company placed into liquidation and have the court appoint a liquidator to realise the assets of the company to be distributed to pay down its creditors in accordance with the order of priorities under Irish law. Once a company is placed into liquidation, whether it be on a voluntary basis or on foot of a court order, no legal proceedings may be started or proceeded with unless with the permission of the court. If the company is in one of the three statutory restructuring processes, then the following will apply: Examinership: There is an automatic stay on the issuing of legal proceedings against the company. For legal proceedings already commenced, the insolvency practitioner (called the examiner) may apply to the court to have them stayed. Schemes of arrangement: There is no automatic stay on legal proceedings. However, during the process, the company can bring an application to the court for a stay on court proceedings or prevent new proceedings from being issued. Not all creditor enforcement, such as the appointment of a receiver, can be stayed. SCARP: There is no automatic stay on legal proceedings. However, during the process, the company, its directors, or the appointed insolvency practitioner (who is called the process advisor) can bring an application to the court for a stay on court proceedings or to restrain new proceedings on such terms as the court may deem just and equitable. 86 LAWYERMONTHLYOCTOBER 2022
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