How a claim survives the company

The end of a company is not always the end of a claim against it. When a business that injured someone is wound up, struck off or dissolved, the instinctive assumption is that the claim dies with it. In Ireland that assumption is usually wrong, because the law separates the company from the insurance behind it and provides a way to revive the company where a formal defendant is needed. Understanding how these mechanisms operate determines whether, and how, a claimant can still recover compensation for injury in Ireland.

Three distinct routes do the work. The first protects the insurance money: under section 62 of the Civil Liability Act 1961, moneys payable under a liability policy are ring-fenced for the injured claimant and do not fall into the general pool of the insolvent company's assets. The second is newer: since 1 September 2020, sections 21 and 22 of the Consumer Insurance Contracts Act 2019 allow a third party who is a consumer to bring proceedings directly against the insurer. The third addresses the corporate shell itself: the Companies Act 2014 lets a dissolved company be restored to the register so that proceedings can be issued and served.

Liquidation, strike-off and dissolution: the plain-English difference

Three different corporate states are often described loosely as a company "going under", and each affects a claim differently. Liquidation is a formal insolvency process in which a liquidator is appointed to gather in the company's assets and distribute them to creditors in a statutory order. During liquidation the company still exists as a legal person, so it can in principle still be sued, though an unsecured claimant recovers little from the assets themselves. Strike-off is the removal of a company from the Register of Companies maintained by the Companies Registration Office, usually because the company stopped filing annual returns or tax statements. Dissolution is the end state: once struck off and dissolved, the company ceases to exist as a legal person and can neither sue nor be sued.

The distinction matters because it dictates the route. A company in liquidation can still be a defendant. A dissolved company cannot, which is why restoration exists. On dissolution, any property the company still held vests in the State under the old doctrine of bona vacantia (ownerless goods), administered by the Minister for Public Expenditure and Reform (the office is now titled the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation), and that vesting has to be reversed on any restoration. Whether the claimant faces liquidation or a completed dissolution is the first thing an Irish personal injury solicitor establishes, usually through a company search on the CRO register.

The difference between strike-off and liquidation is not merely procedural, and it can be decisive for the insurance route in particular. In Michael Murphy v Allianz plc [2014] IEHC 692, the injured employee had obtained judgment against his former employer, but the company had been struck off the register rather than wound up. Gilligan J held that the claimant could not rely on section 62, because the section applies to a corporate body that "is wound up", and this company had never been in liquidation. The point is easy to miss and frequently overlooked: a company that has simply been struck off for failing to file returns has not been "wound up", so section 62 may not answer the claim on its own. That is often precisely why restoration matters, since restoring the company can open the way to a liquidation, or to establishing liability in the ordinary way, rather than leaving the claimant with a provision that does not fit the facts.

Which route applies, and what does each one leave unresolved?

Choosing among the three routes, and understanding the limits each carries, is where a personal injury claim against a defunct company is won or lost. The routes are not interchangeable. Section 62 protects insurance that already exists but requires liability to be proven against the insured first. The 2019 Act shortens that path, but only for a claimant who is a consumer. Restoration revives the company itself, yet achieves nothing if no insurance or assets stand behind it. The sections that follow take each route in turn, set out the point at which it stops helping, and explain how they combine in the situations that arise most often in Ireland, including the historic-employer disease claims where the company has been gone for decades.

Route one: the insurance money is ring-fenced (Civil Liability Act 1961, section 62)

Section 62 is the long-standing Irish mechanism that keeps a liability policy answerable to the injured party even after the insured company fails. Its effect is to prevent the insurance proceeds from being swallowed into the insolvent estate and shared among general creditors. The section provides:

"Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability for a wrong, if an individual, becomes a bankrupt or dies or, if a corporate body, is wound up or, if a partnership or other unincorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging in full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured…".

Section 62, Civil Liability Act 1961

The practical consequence is that an employers' liability or public liability policy in place at the time of the injury will ordinarily still respond to a valid claim, and the insurer, rather than the vanished company, becomes the real source of recovery. The Supreme Court read the section purposively in Dunne v P.J. White Construction Co Ltd (In Liquidation) [1989] ILRM 803, where Finlay CJ took the view that section 62 carries the inevitable consequence that a right of action in favour of the injured third party is created, and that the injured person has the benefit of a presumption that the policy was good, so that the onus of proving any right to repudiate the policy rests on the insurer. That reading is what gives section 62 its protective force.

The limit on section 62: liability must be proven first

Section 62 protects the insurance money, but it does not let a claimant leap straight to the insurer before establishing the claim. Two High Court decisions define the boundary. In McCarron v Modern Timber Homes Ltd (In Liquidation) [2012] IEHC 530, Kearns P held that a claim cannot be treated as a "valid claim against the insured" within the meaning of section 62 until liability has been established and the amount assessed, so the insurer should not be joined until the claimant has obtained judgment or an order against the insured company. The section ring-fences money to satisfy an established liability; it does not manufacture a shortcut around proving that liability.

The companion decision, Hu v Duleek Formwork Ltd (In Liquidation) & Aviva Direct Ireland Ltd [2013] IEHC 50, added the second limit. Peart J confirmed that a claimant taking the benefit of section 62 cannot cure a breach by the insured of a condition of its own policy. In that case the insured had not paid the policy excess, a condition precedent to cover, and the claimant could not step over that failure. Where an insurer validly repudiates for the insured's breach, section 62 does not rewrite the policy against the insurer. This is the honest limit that thinner summaries tend to omit: the section moves the insurance money toward the claimant, but only to the extent the policy actually answered the claim.

These limits are real, but they are not the last word, and the boundary continues to be tested. In later proceedings concerning a section 62 declaration against an insurer, the Court of Appeal, in Mythen Construction Ltd v Allianz plc [2020] IECA 148 (Collins J), declined to read the earlier High Court decisions as laying down a general principle that no cause of action can arise against an insurer under section 62, and treated the meaning and effect of the section as matters for the substantive hearing rather than to be pre-empted at the interlocutory stage. The practical lesson is that section 62 remains a live and developing area: its limits are well established, but whether a particular claim falls inside or outside them is a question of the facts and the policy terms, not a foregone conclusion.

Route two: direct action against the insurer since 2020 (Consumer Insurance Contracts Act 2019)

The liability-first limit was the main practical obstacle to section 62, and the Consumer Insurance Contracts Act 2019 addresses it for a defined group of claimants. Sections 21 and 22 of that Act came into force on 1 September 2020. Under section 21, where a person is insured against a liability that is incurred to a third party who is a consumer, the insured's rights against the insurer transfer to that third party where the insured is dead, cannot be found or is insolvent, or where it is just and equitable. Section 21 also gives the third party a right to information about the existence of the policy, the identity of the insurer and the terms of cover. Section 22 then allows the third party to bring proceedings directly against the insurer for a declaration of the insurer's liability.

The change that matters for insolvency is in section 21(4), which allows the third party to issue proceedings against the insurer without having first established the insured's liability, although liability must still be established to enforce the terms of the policy. That is the targeted answer to the difficulty identified in McCarron and Hu. Two limits remain important, however. First, the mechanism only applies where the third party is a consumer, which the Act defines (by reference to the Financial Services and Pensions Ombudsman Act 2017) to include private individuals not acting in the course of business, and businesses with an annual turnover below three million euro. A claimant who does not fall within that definition is left to section 62 and the older case law. Second, the insurer keeps every defence it would have had against the insured, and can still set off sums the insured owes it, so a valid repudiation for the insured's breach continues to defeat the claim in the same way. The 2019 Act widened the door; it did not remove the frame.

Ireland has no Third Parties (Rights Against Insurers) Act

A common error in material written for an Irish audience is to import the United Kingdom's direct-action statute, which does not apply here. The United Kingdom has a Third Parties (Rights Against Insurers) Act, originally of 1930 and modernised in 2010, which lets a third party bring a single set of proceedings directly against an insolvent defendant's insurer. Ireland has no equivalent Act. An Irish claimant relies instead on section 62 of the Civil Liability Act 1961 and, since 2020, on sections 21 and 22 of the Consumer Insurance Contracts Act 2019. The distinction is not academic: the Irish provisions carry their own conditions, and advice built on the UK Act can point a claimant toward a remedy that does not exist in this jurisdiction.

Route three: restoring the company to the register so it can be sued (Companies Act 2014)

Where the company has been dissolved, it must be brought back to legal existence before proceedings can be issued or served against it. The Companies Act 2014 provides two routes, and which one applies turns on how long the company has been gone and who is applying. Administrative restoration under section 737 is the quicker, non-court route, but it is available only within twelve months of dissolution and only to a member or officer of the company. An injured claimant is a prospective creditor, not a member or officer, so this route is generally closed to a claimant unless a former director can be persuaded to bring it. In practice the claimant uses the court route.

Court restoration is governed by section 738, which sets the conditions:

"On an application in accordance with section 739 by a person specified in subsection (2), the court may order that a company that has been struck off the register be restored to the register if (a) the striking off of the company has disadvantaged the applicant, (b) the application is made within the period of 20 years after the date of dissolution of the company; and (c) it is just and equitable to do so."

Section 738(1), Companies Act 2014

A creditor is expressly named among those who may apply, and an injured party with a claim against the company is treated as a creditor for this purpose. This reflects a broad reading of the word by the courts: in Re Deauville Communications Worldwide Ltd [2002] 2 IR 32 the Supreme Court held that "creditor" extends to contingent or prospective creditors. A person injured before the company was struck off holds a claim from the date of the injury, so even though that claim has not yet been quantified they can ordinarily be treated as a creditor for the purpose of seeking restoration. The application can be made at any time within the twenty-year window, without waiting for the twelve-month administrative period to expire, and it is heard by the High Court, with the Circuit Court available as a concurrent option for an application by a creditor (or the Registrar) under section 743. Under section 739 the application is made on notice to the Registrar of Companies, the Minister for Public Expenditure and Reform and the Revenue Commissioners, each of whom has requirements to be met before issuing a letter of no objection. Once the court makes the order and a certified copy is delivered to the CRO within twenty-eight days of its perfection, the company is deemed to have continued in existence as if it had never been struck off, and the proceedings can go ahead.

A separate provision, section 708, deals with a company dissolved following a liquidation rather than a strike-off; there the court can restore the company within two years of dissolution, returning it to the status of a company in liquidation. The route therefore depends on the precise corporate history, which is why the CRO search comes first.

Restoration also interacts with the Injuries Resolution Board stage. Most personal injury claims in Ireland must go through the Board before court proceedings can begin, and a Board application cannot be completed without naming the respondent and giving its address. A company that has been dissolved has no legal existence to be named or served, so where the intended respondent is a dissolved company, restoring it to the register is usually a necessary step before or alongside the Board application. This can add months to the overall timeline, which is why the corporate status of the intended defendant is checked at the very start rather than after an application has been prepared.

Occupational disease and the long-gone employer

The hardest version of this problem arises in occupational disease, where the illness appears decades after the exposure that caused it. Conditions such as asbestos-related disease, silicosis and noise-induced hearing loss have long latency periods, so by the time symptoms emerge the employer responsible may have been dissolved for many years. Two features of Irish law keep these claims alive. The date-of-knowledge rules under the Statute of Limitations (Amendment) Act 1991 can mean that time does not begin to run until the injured person knew, or ought to have known, that their condition was significant and connected to the exposure, which we explain in detail on our date of knowledge page. And the recovery routes above still apply: if a historic employers' liability policy can be traced, section 62 ring-fences it even though the employer is long dissolved.

Tracing that historic insurer is often the real work of the claim. Policies from the 1980s or 1990s may be recorded only in old company files, broker records or the insurer's own archives, and identifying the correct insurer for the relevant exposure period can determine whether the claim is worth pursuing. Restoration under section 738 may still be needed to provide a defendant against whom liability can be established, even where the insurance ultimately answers the claim. This intersection of dissolution, historic insurance and date of knowledge is where an experienced occupational illness practitioner adds the most value.

One practical point is worth stating plainly, because guidance written for the United Kingdom gets it wrong for Ireland. In the United Kingdom, an injured person can search the Employers' Liability Tracing Office to identify a former employer's insurer, even where the business is long gone. Ireland has no equivalent tracing office. The bodies that exist here deal with motor insurance or with claims data, not with tracing historic employers' or public liability policies. In practice this means tracing an old Irish policy depends on the surviving records of the company, its brokers and the insurer, and on documents that a restoration can help bring to light, rather than on a central register. It is one of the reasons these claims reward early investigation.

Other routes when the company is gone

The insolvent company is not always the only party who can be pursued. Where more than one party is responsible for the same injury, the Civil Liability Act 1961 treats them as concurrent wrongdoers under section 11, and under section 12 each is liable for the whole of the damage, so the injured person may recover the whole of the loss from any one of them. If a main contractor, an occupier or another party shares responsibility with the insolvent company, that solvent party can be sued for the full amount, leaving questions of contribution between the wrongdoers to be resolved separately. This can make the insolvency of one defendant irrelevant to recovery.

The same logic applies to defective products. Where an insolvent manufacturer supplied a product that caused injury, the Liability for Defective Products Act 1991 allows a claim against other parties in the supply chain, including an importer into the European Union or a business that put its own name on the product as the producer. A dead manufacturer does not necessarily end a product-liability claim if another liable party remains in existence.

The corporate state can also be a temporary one that does not end the company at all. A company in examinership, the Irish court-supervised rescue process, continues to exist as a legal person while it is under the protection of the court, as does a company in receivership. A claim against such a company is not defeated by its financial difficulty, although proceeding during the protection period may require the permission of the court or engagement with the examiner or receiver. The claim, and the insurance behind it, remain in place; what changes is the procedure for pursuing them.

It also matters whether the business was a company at all. A sole trader or a partnership is not a company and is not struck off or dissolved through the Companies Registration Office in the way a company is, so restoration does not arise. The claim is against the individual or the partners, and their personal insurance and assets are in question rather than a corporate shell. Section 62 reflects this directly, treating an individual insured who becomes bankrupt or dies differently from a company that is wound up and a partnership that is dissolved. Establishing the exact legal form of the former employer or occupier is therefore part of the same first step as the company search.

How Ireland differs from the UK

Because so much online guidance on this topic is written for the United Kingdom, it is worth setting out plainly where Irish law diverges. The mechanisms, statutes, time limits and institutions are different, and applying the UK position to an Irish claim leads to the wrong answer. The table below contrasts the two.

The single most important point is that Ireland has no Third Parties (Rights Against Insurers) Act. A claimant who reads that they can simply sue the insurer directly in one step, as under the UK 2010 Act, may be relying on law that does not apply in this jurisdiction.

When there is genuinely no insurance

Honesty requires acknowledging that some claims against insolvent companies cannot realistically be recovered. If the company held no liability policy that answers the claim, if no solvent concurrent wrongdoer exists, and if the company has no assets, then restoring it to the register achieves little beyond producing a defendant who cannot pay. Section 62 can only ring-fence insurance that exists, and the direct-action route under the 2019 Act depends on there being an insurer to sue. In those cases the practical advice is to say so plainly rather than to incur the cost of restoration for a judgment that cannot be enforced. Whether a claim falls into this category is a question of investigation, not assumption, and a company search and insurance enquiry usually answer it early.

One further situation is worth noting. Where a liability insurer did exist but the insurer itself has since become insolvent, the Insurance Compensation Fund may provide a route to recovery. The Fund does not apply to every policy or every claim, so whether it is available in a given case needs to be checked against its current rules, but it means that the insolvency of the insurer, as opposed to the company, is not automatically the end of the matter.

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