Dermot Ahern (Louth, Fianna Fail)

On Report Stage I introduced a list of amendments setting out how the provisions relating to the receiver would operate in practice and how receivers would be appointed. The purpose of these amendments is to put on a statutory basis measures that are necessary to ensure the fees the receiver can charge and the expenses he or she can claim are open, transparent and reasonable. Taking the amendments in sequence, amendment No. 46 removes the requirement relating to the vouching of expenses; instead of placing the time-consuming responsibility on the Courts Service for vouching every expense, it puts the onus on the receiver of making and maintaining a record of expenses and fees and forwarding them to the Courts Service at a regular interval. I will mention these aspects of the amendments, but, first, I would like to say a few words about amendment No. 47.

Section 15(4) obliges a receiver to perform his or her functions subject to directions or conditions specified in the recovery order, including any directions or conditions having regard to the payment of amounts received in court. Amendment No. 47 allows the receiver to apply to the court for directions relating to the performance of his or her functions. Receivers will have to contend with many circumstances when performing their duties, ranging from recovering small to very large amounts. It is wise that the receiver be given power to apply for directions to the court in specific circumstances.

Amendment No. 48 deals with what will happen if the receiver recovers or sells property of greater value than the amount of the fine or the unpaid part of the fine. It repeats the provision under which the receiver will be obliged to return to the offender the part of the proceeds of the sale that exceeds the amount of fine or the unpaid part of the fine. In addition, for the purposes of this provision, the normal definition of "fine" is changed so as to include the fees of the receiver and expenses reasonably incurred by him or her. This is because when the fine is imposed, it will not at that stage be known what the exact amount of the receiver's expenses will be; therefore, they will not form part of the fine. This also entails the deletion of the definition of "fine" in amendment No. 52 for the purposes of the section. The definition of "fine" in section 12 will apply to this section.

Amendment No. 49 deals with the making of a fees order by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance. I envisage that the fees orders made under this provision will be similar to those made under the provisions set out for sheriffs and Revenue sheriffs under which they operate. The work they will perform will essentially be the same.

Amendment No. 51 obliges the receiver to make and maintain a written record of the fees deducted and expenses incurred and deducted from the sum recovered, or the proceeds of any sale of property pursuant to a recovery order. At least every six months the receiver will give the Courts Service the written record of fees and expenses. The making of false and misleading entries in the record will be a criminal offence. I have decided to crate this offence for which there will be severe penalties because where false and misleading information is given, there is the potential for considerable amounts of money to be involved. I also envisage that the contract between the receiver and the Courts Service will be drawn up in such a way that in such circumstances the contract will be immediately terminated.

Amendments Nos. 50 and 53 are largely drafting amendments. The only difference between section 15(8) being deleted and the new section 16 is the addition of the receiver's fees to the moneys that can be subtracted from the moneys that will be paid into the Exchequer as a result of the appointment of the receiver.

The amendments complete the scheme proposed for the operations of the receiver. During the Dáil debate, particularly on Report Stage, the role of the receiver was revised and made more central in how the default provisions would work. The revised role of the receiver made it important that the fees and expenses provisions were fully thought through and included in the Bill, instead of being left to administrative action or rules of court. The amendments will facilitate a smoother operation of the receiver provisions, as well as obliging receivers to maintain proper records of expenses.

Amendment agreed to.

Government amendment No. 47:

In page 14, between lines 36 and 37, to insert the following subsection:

"(5) A receiver may, at any time after receiving a notification under subsection (2), apply to the court that made the recovery order under which he or she was appointed for directions in relation to the performance of his or her functions under this Act.".

Amendment agreed to.

Government amendment No. 48:

In page 14, lines 41 to 45, to delete subsection (6) and substitute the following:

"(6) (a) Where the receiver sells property belonging to the person in relation to whose property the receiver has been appointed and the proceeds of the sale exceed the amount of the fine or the amount of the fine remaining unpaid, as the case may be, the receiver shall pay to the person so much of those proceeds as exceeds that amount.

(b) In this subsection "fine" includes the fees of the receiver and any expenses reasonably incurred by the receiver in the performance of his or her functions.".

Amendment agreed to.

Government amendment No. 49:

In page 15, between lines 7 and 8, to insert the following subsection:

"(8) (a) The Minister may, by order, specify—

(i) the fees that a receiver may deduct from any sum or sums recovered by him or her, or obtained from the proceeds of the sale of any property by him or her, in accordance with this section, or

(ii) the rates at which fees that may be so deducted shall be calculated.

(b) The Minister shall not make an order under this subsection without the consent of the Minister for Finance.".

Amendment agreed to.

Government amendment No. 50:

In page 15, lines 8 to 13, to delete subsection (8).

Amendment agreed to.

Government amendment No. 51:

In page 15, between lines 13 and 14, to insert the following subsections:

"(9) The receiver shall make and maintain a record in writing of—

(a) the fees deducted, and

(b) the expenses incurred and deducted, by him or her from the sum or sums recovered, or the proceeds of the sale of any property sold, by him or her pursuant to a recovery order.

(10) The receiver shall, not later than 6 months after the performance by him or her of his or her functions pursuant to a recovery order, give to the Courts Service the record required to be made and maintained under subsection (9) relating to that recovery order.

(11) If a receiver makes, or causes to be made, an entry in a record required to be made and maintained under subsection (9) that—

(a) is false or misleading in any material respect, and

(b) he or she knows to be false or misleading,

he or she shall be guilty of an offence and shall be liable—

(i) upon summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) upon conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

(12) A record required to be made and maintained under subsection (9) shall be in such form as the Courts Service shall determine.".

Amendment agreed to.

Government amendment No. 52:

In page 15, subsection (9), to delete lines 21 and 22.

Amendment agreed to.

Section 15, as amended, agreed to.

NEW SECTION.

Government amendment No. 53:

In page 15, before section 16, to insert the following new section:

16.—Monies paid into the court or otherwise received by it as a result of the appointment of a receiver under section 15 shall be paid to the Minister for Finance and such monies shall be paid to, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.

Amendment agreed to.

SECTION 16.