Kathryn Reilly (Sinn Fein)

I will try to not take too long. Like Fianna Fáil, we in Sinn Féin will support the Bill. If it proceeds to Committee State, we will commit to amending it and making it as good and as strong as we possibly can. As has been indicated, there is no obligation currently requiring someone who has accidentally been overpaid to disclose or return the overpayment. We need a uniform system of some kind to protect the rights of parties who make overpayments. We agree the complexity of modern business transactions and the multiplicity of those transactions which can take place in short periods can create difficulties for businesses in terms of accounting, especially small businesses.

Reference has been made by other Senators to the Dormant Accounts Acts 2001 to 2005 which govern the position of unclaimed balances in certain financial institutions. They mentioned there is no legislation directing or governing the treatment of trade overpayments, although there are a number of relevant provisions in the Companies Acts 1963 to 2009. The Bill recognises there is a disparity between the approach taken by, for example, financial institutions and that taken by other sectors on the treatment of overpaid balances. The a lack of uniformity in how overpayments are treated in different businesses means in some cases there is a diligent practice, as Senator Quinn mentioned, of notifying customers of overpayments and immediately agreeing a disposal, while in other instances there can be indifference to the erroneous receipts or the payee may seek to reclassify such receipts. It is difficult for a company, having realised its mistake, to reclaim its money by way of restitution, which the explanatory memorandum notes could be unduly onerous on some businesses. Likewise, it could be very difficult for a business which made the overpayment to reclaim the sum if the payee company has gone into liquidation or receivership. The legislation should take account of errors on the part of a company which has received an overpayment. The multiplicity of trade payment transactions daily and the often impersonal and systems-driven nature of payments creates ready possibility for overpayment. This is as true of the party receiving the overpayment as of the party marking it. We must ensure, if the Bill proceeds to Committee Stage, that this is clearly set out, especially in section 7.

We are strongly supportive of section 5(2) and 5(3) which provide for sanctions for those who fraudulently conceal the existence or extent of an overpayment or other credit, or issue any statement of account or document purporting to be a statement of account which omits details of any overpayment or other credit. Such behaviour not only defrauds the person who has made the overpayment but could also create a false impression of the company's accounts, as overpayments may be declared as assets or used to offset liabilities.

My main concern in regard to the Bill is how it can be implemented, particularly in terms of ascertaining what will constitute a genuine mistake as opposed to fraud on the part of the recipient of an overpayment. I would welcome any clarification from Senator Mullen on how this question might be interpreted by the courts. In summary, notwithstanding the concerns I have indicated, we are of the view that any faults in the legislation can be resolved on a cross-party basis on Committee Stage. As such, we urge the Government not to block its passage.