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1. There is before the Court a series of applications which are set forth in a notice of motion dated the 12th March, 1997. The following orders are sought:-

2. I will deal with each of these reliefs in turn.

3. Before doing so I should say something about these proceedings.

4. The Petitioners are a group of students who attend a college owned and run by the company in suit. They were enrolled with approximately five hundred others for courses of varying duration. All but four of the group of Petitioners have paid full fees for the current academic year. The fees range from £1,200 for part time students to between £2,500 and £5,000 for full time students.

5. In recent days they have become aware of the fact that the Company is not in a position to honour its contractual obligations to them and the reason for this has been ascribed to the company's insolvency.

6. One cannot but have sympathy for the Petitioners who find themselves in this situation. The stress involved in preparing for forthcoming examinations is quite enough for them to have to contend with without this worry in addition.

7. In any event they have petitioned the Court for the appointment of an Examiner to the company.

8. The first relief which is sought in the Notice of Motion is the appointment of an Examiner on an interim basis.

9. Before an Examiner can be appointed at all, whether interim or otherwise, the statutory conditions for such appointment must be met.

10. These conditions are contained in Section 2(1)(2) and (4) of the Act. These sections read as follows:-

11. These statutory provisions have been the subject of judicial attention on a number of occasions. I mention but two of such decisions.

12. I need not review these decisions in detail since they are well known to practitioners in the insolvency field.

13. In summary, Petitioners must show compliance with the formal requirements of Section 2(1) and then demonstrate the existence of an identifiable possibility of survival of the company or at least a part of its undertaking as a going concern. That is the test prescribed by the Supreme Court and Keane J. and is not the one propounded to me today by Mr. Forde. He spoke of having to establish a reasonable prospect of survival. The test prescribed by the Courts is a lesser one.

14. Bearing in mind these requirements I turn to consider the evidence before me in this case.

15. I am satisfied that the formal requirements of Section 2(1) of the Act have been met. At present there is evidence that the company is or is likely to be unable to pay its debts; no resolution subsists for the winding up of the Company and no Order has been made for the winding up of the company by the Court.

16. The matter to which I have to give attention is whether or not there has been shown the identifiable possibility of survival of the Company.

17. This is a standard which must be met by all Petitioners regardless of status. Attainment of that standard may be much easier when the Company itself or its directors are Petitioners. Creditors may well have a good deal less information concerning the Company and its business but they must, nonetheless, achieve this level of proof, modest as it is.

18. The Affidavit of Mr. Brendan Doyle sworn on the 5th March, 1997 at paragraph 13, exhibits a projected profit and loss account. It shows a projected profit of £104,700 for the current year. But this projected profit is predicated upon being able to establish, to quote Mr. Doyle,"a properly funded capital programme".

19. There is nothing in that Affidavit to show any likelihood at all of an investor who is prepared to inject the necessary capital.

20. The next Affidavit takes the matter a little but not much further. There

21. Mr. Doyle says: "it would also seem that several potential investors have expressed an interest in investing in the Company".

22. This averment falls short of a direct statement that any potential investor has expressed an interest in investing. To preface such a statement with the clause "It would also seem" deprives it of much probative value and if it were to stand alone would not in my view discharge the onus on the Petitioners.

23. However, as a concession to the Petitioners, I took the unusual step of permitting their solicitor to give evidence orally on this hearing.

24. His evidence was to the effect that there is now just a single prospective investor. He was told of this investor by one of the students at the college. The investor does not wish to be identified and I respected this desire by not requiring the identity or indeed any information which might tend to disclose the identity of the investor.

25. The solicitor told me that this prospective investor was a big company. But he could give no information as to how much or on what terms money might be invested. The contact with this investor was made via the father of one of the students in the college. This personal connection may be of some significance.

26. The Petitioners have been aided by an indication which has been forthcoming from Counsel acting on behalf of the directors that they (the directors) have also had approaches from prospective investors. There is, in my view, a sufficient case made out on the present evidence for the appointment of an Examiner.

27. I must next consider whether there are grounds for the appointment of an Examiner on an interim basis.

28. I am satisfied that the evidence does warrant such an appointment. I am so satisfied by reason of what is sworn as follows in the Affidavit of Mr. Doyle where he says concerning the viability of the company between now and the hearing of the Petition:-

29. The Court will therefore appoint an interim Examiner.

30. The next reliefs which are sought at paragraph (ii) and (iii) of the Notice of Motion may be considered together. They seek on behalf of the Petitioners that the interim Examiner be given such powers as seem reasonable to deal with the City and Guilds examination applications deadline of the 18th March, 1997 and, furthermore, that he be given such additional powers or authority as seem reasonable in the circumstances.

31. When the matter was before me on Monday last Mr. Forde, on behalf of the Petitioners, told me that all he wished to do was to appoint an Examiner to examine the affairs of the Company making it quite plain that if additional powers were to be given to the Interim Examiner they would have to be sought by him i.e. the Interim Examiner. That, in my view, was the correct approach and accurately reflects the statutory position.

32. Both the Motion paper and certain observations and submissions made by

33. Mr. Forde today suggest a departure from this view.

34. The basic purpose of the appointment of an Examiner is with a view to him examining the situation, affairs and prospects of a company. Contrary to some views, he does not take over the running of the Company or displace the directors. If he is to do so, then he must apply to the Court for such powers under Section 9 of the Act. That Section makes it quite clear that only the Examiner may make such an application. Mr. Forde did not accept this position and attempted to rely upon the provisions of Section 13 (7) in support of his contention that Orders of this sort might be obtained. Contrary to Mr. Forde's submission, in my view, Section 13(7) has nothing to do with this issue. If, therefore, any additional powers are to be given to the Interim Examiner it will be for him and him alone to apply to Court for them.

35. It follows that the Orders sought at (ii) and (iii) could never have been granted to the Petitioners so there is no point in adjourning that part of the motion as Mr. Forde suggests. These reliefs will therefore be refused.

36. Finally I am asked to vary the Order made by me on Monday last. That Order adjourned the hearing of the petition until the 21st March, 1997 and directed that the Petition be readvertised. In lieu of that Order of Monday last I am now asked to treat the hearing of this application for an Interim Examiner as being the hearing of the Petition.

37. The reason why I adjourned the Petition for hearing and directed readvertisement of it was because there were defects in the proofs put before me. There were a number of such defects but the principal one concerned omissions from the advertisements advertising the Petition. I was of the view that the advertisement of a Petition ought at a minimum to notify the reader of such advertisement of the time, date and place of the hearing. The advertisements in this case did not do so and were silent both as to time and venue for the hearing of the Petition.

38. The Petitioners appealed my Order of Monday last to the Supreme Court which heard their appeal yesterday. The Supreme Court unanimously affirmed the view which I had taken on the matter and the appeal was dismissed. In the course of his judgment (with which Keane and Murphy JJ. agreed) Barrington J. said:-

39. The advertisements of the Petition in this case failed to achieve the purpose identified by Barrington J. in the course of his judgment.

40. By seeking the present relief I am being asked to reverse myself and the Supreme Court by dispensing with the need to further advertise the Petition at all. This I am asked to do by Mr. Forde who says it is most unlikely that there are persons whose rights might be affected apart from those before the Court. However he had no information as to the number, nature or quantum of other creditors of the Company.

41. This application in my view is wholly misconceived. It asks me on no evidence to take a course wholly different from that which I took on Monday last and which was affirmed no later than yesterday by the Supreme Court. I refuse to treat this hearing of an application for the appointment of an Interim Examiner as the hearing of the Petition and I further refuse to dispense with the readvertisement of the Petition. Accordingly the Order which I pronounced on Monday last and which was affirmed by the Supreme Court yesterday stands.