The Gazette 1985

GAZETTE

SEPTEMBER1985

Book Reviews Company Law in the Republic of Ireland, Mr. Justice Ronan Keane, Butterworth's London, 1985. xxiv, 350 £29.50. This work is at the time of reviewing the definitive practitioner's book on Irish company law, and is both in content, presentation and style excellent. No Irish lawyer or accountant can afford to be without it. The subject now is firmly based, its four walls defined and its various partitions clearly marked off. The author must derive satisfaction from having arrived at a quarry (or mine- field) and left an intellectual edifice. In layout, sub- stance and intellectual approach this work is admirable. I make no apology for stressing the point about lay- out, since lawyers, who are professionally wedded to reference books, will be well aware of the frustration of having to search through deficient indices and mislead- ing contents pages for guidance. Four examples will suf- fice. First, the table of contents is nine pages long, and the reader is able to appreciate from a perusal of the table of contents what precisely is contained in each chapter. It is very frustrating to see a one page table of contents: since that does not reveal the breakdown of the chapter contents. The table of contents too uses terms familiar to company lawyers. This again is not always the case. Second, Keane's book is divided into thirty-five chap- ters arranged in eight parts: Introduction, Formation, Corporate Personality, Capital, Borrowing, Member- ship, Administration, and Winding-Up. The divisions are readily comprehensible, logically justifiable, and useful to those familiar with standard English textbooks. It is thus easy to either read a particular section, or to refer to a specific point, without having to fight through an off-putting and idiosyncratic system of arrangement. Third, the index to Keane's book is helpful and com- petently-produced, as is generally the case with text- books from this publisher. Fourth, one of the particularly pleasing features of the work is that the relevant footnotes follow each short numbered section into which the chapters are divided. I hope that this system will be adopted by other text books in future: it is a great improvement on the usual alternative, split pages of text and footnote. Turning now to the substantive treatment of the law, the achievement of this book is to present a picture of company law in Ireland as a distinct entity, or body of law and practice. This is no re-writing of an English text book with Irish cases thrown in; no mere Irish supple- ment to Palmer. The author, in making a tacit and unobtrusive case for the existence of company law in Ireland as a study of its own, does not disguise the fact that much of the legis- lation is modelled on that of England, nor that our case- law is influenced by precedents drawn from other juris- dictions; but is constantly able by specific example to explain what is characteristic of Irish company law, and the direction which case-law has taken in this jurisdiction. The manner of his treatment of the subject is impres- sive. The exposition of the subject is so clear as to pro- vide the absolute beginner wih a guide, and the seasoned practitioner with answers to the most recondite questions of law and practice.

The only fault of his approach may be that sometimes he oversimplifies the points of divergence between dif- ferent commentators. Connected with this, though per- haps a different point, the student who wishes to take a point further may be lost by the absence of full reference to the periodical literature. Thus, for example, on p. 167 Keane wriles:- "Thcrc has been considerable discussion as to whether the float- ing charge is a form of security which takes immediate effect but allows the borrower to continue using the assets captured by it until crystallisation; or whether it is a mortgage of future assets which is of no legal effect until crystallisation. The comments in the earlier English decisions tended to favour the first view, but in more recent times the preference appears to have been for the second". The references given are to an article by Pennington published in 1960, and to Gough on Company Charges. I found these references insufficient to chase up the most recent work on this particular point. In general, I found a marked absence of systematic reference to academic commentary; and am constrained to deprecate this, not (contrary to what the cynical reader of this journal may wish to infer) because of my being an academic, but because the development of an Irish liter- ature on company law by academic writers is self- evidently important for practitioners. The book under review is itself testimony to this point. Although the author is a High Court Judge, the caution and discretion one might expect from the holder of such an office is more evident in the carefulness of his writing and the consideration underlying his prognost- ications than in any pusillanimous avoidance of contro- versy. He does not shrink from anticipating how a particular conflict in foreign case-law may be resolved by an Irish court in the future. When - and this must be something of a problem for the author - in his view, a judge has erred, (even an Irish judge), he does not mince his words, but says so. Admittedly, there still remains a problem which a judge, writing extra-judicially, can never solve; one or two of the learned author's own judgements have been critically received by academic writers - notably Northern Bank Finance Corporation -v- Quinn & Achates Investment Co. (8th Nov. 1979); re Greenore Trading Co. Ltd. (28th March 1980) see the notes on p. 76 and 79 respectively of the Dublin University Law Journal for 1981. Now I am not suggesting that it is incumbent on a judicial author who writes extra-judicially to criticise his own decisions, but I do feel entitled to say that in a small jurisdiction like Ireland, where relatively few judges are assigned to Company work, and one of these judges is also the author of the leading text-book, a problem does arise! In fact, in this work, the problem is a minor one limited to at most a couple of cases. This book deals principally with the areas of company law important to the ordinary practitioner dealing with private companies. That is not to say that p.l.c.s or publicly quoted companies are not dealt with; but there is a welcome bias in favour of the sort of problem which the vast majority of readers of this journal will be concerned. Within this confine, some areas are more fullv dealt with than others.

Thus for example, I found Parts Five, (borrowing) Six (membership) and Seven (the administration of the 351