There are two broad ways in which such a shareholder dispute may be handled – the consensual way and the non-consensual way. In theory, shareholder disputes should be the one type of dispute that should be amenable to Mediation, as usually the parties already know each other. We are pleased to say that, in practice, mediation does work well for shareholder disputes.
We are starting to see more shareholder disputes, as the Celtic Tiger roars back to life. During the economic crash, some shareholders had nothing to fight over, whereas now some companies have become very profitable.
We regularly use our mediation/negotiation skills to settle shareholder disputes and cases of oppression of minorities. In this regard we have had extensive experience of using our mediation/negotiation skills to settle cases brought under the old provisions of Section 205 of the 1963 Companies Act, or Section 212 of the 2014 Companies Act. Apart from using our mediation skills, we are able to bring our expert knowledge of company law, accounting, insolvency, share valuations, tax, fraud investigations, pensions and re-structuring to help negotiate a solution.
The key reason why a mediated type solutions works so well in a shareholder dispute is simply that a successful mediation can be a “Win:Win” solution for both sides, whereas a Court Ordered liquidation can generate massive losses for all involved.
There are many ways of settling a shareholder dispute, ranging from one shareholder agreeing to become a “sleeping partner”, issuing a different class of share, making use of tax exemptions on termination payments, a members voluntary liquidation, bringing in new shareholders to the classic solution of the company purchasing back shares.
One of the key determinants in advising clients is establishing (depending on what side of the fence you are advising!) if there is a quasi-partnership. A quasi-partnership argument can be very effective in dealing with a majority shareholder.
In smaller cases effective results may be achieved by threatening to report the conduct of the directors to the Office of the Director of Corporate Enforcement.
One option available under Section 212 of the 2014 Companies Act is to seek compensation from the company. (The previous section, Section 205 of the 1963 Companies Act did not allow compensation.)
The Revenue Commissioners allow certain share buy backs to be treated as a capital type distribution provided the transaction “benefits the trade“. Revenue will normally regard a share buy-back as benefiting the trade where for example:
Examples of this would include:
The Revenue guidance may be accessed here:
Shareholder disputes are very stressful for the shareholders involved. However, appointing an experienced firm of advisors who can set out a road map can help to both reduce the stress and the costs. In particular, we can advise on specific tactics and strategies that should be adopted.
We are experts in the area of resolving shareholder disputes. We were involved in one of the first Section 212 cases soon after the 2014 Act was passed. Over the years we have developed a trusted panel of experienced solicitors and barristers who work with us on devising solutions. We monitor and carefully review new High Court judgments on section 212, including judgements such as Harrington -v- Harrington
An essential aspect of resolving many shareholder disputes is to exploit the tax advantages of termination payments.
If you have any clients who require advice on a shareholder dispute, please ask them to contact Jim Stafford, Tom Murray or Andrew Hendrick.