Central Bank Reform Act 2010

45.

Application to Court to confirm prohibition notice.

45.— (1) The Bank may apply to the Court in accordance with this section for an order confirming a prohibition notice. Where such an application is made with the consent of the prohibited person concerned, the Court may make an order under this section ex parte.

(2) Without limiting the exercise of the judicial function with respect to a particular case, it shall be the duty of the High Court, in so far as it is practicable, to hear and determine an application under this section within 3 months after the date on which the application is made to it.

(3) If when hearing an application under subsection (1) the Court is satisfied that, for reasons of confidentiality or commercial sensitivity or in order to avoid the disclosure of information of the kind referred to in section 33AK(1A) of the Act of 1942, the hearing of the Court should be held otherwise than in public, the Court may so order.

(4) The Court may, on the hearing of an application under subsection (1), consider evidence not adduced or hear an argument not made to the Bank or the Governor, if the Court is satisfied that—

( a) there are cogent reasons justifying the failure to adduce the evidence or make the argument to the Governor or the Bank, and

( b) it is just and equitable for the Court to consider the evidence or hear the argument, as the case may be.

(5) On an application under this section—

( a) if the Court is satisfied that there is a reasonable basis (as set out in subsection (6)) for the opinion of the Bank or the Governor, as the case may be, that the prohibited person concerned is not of such fitness and probity as is appropriate to perform the relevant controlled function or part of a controlled function, or any controlled function (as the case may be), the Court may make—

(i) an order confirming the relevant prohibition notice,

(ii) if the Court considers that it is necessary in the interests of justice, or for any other good reason, to vary the prohibition notice, an order varying or limiting it (including by imposing a condition or conditions on the prohibited person or a regulated financial institution concerned), and

(iii) any other additional or ancillary order it thinks fit,

and

( b) if the Court is not satisfied as provided for in paragraph (a), the Court may make—

(i) an order setting aside the notice,

(ii) an order remitting the matter to the Bank or the Governor for reconsideration in accordance with any directions by the Court (whether or not the Court also sets aside the notice), or

(iii) any other order it thinks fit.

(6) For the purposes of subsection (5)(a), there is a reasonable basis for an opinion if, taking into account the expertise and specialist knowledge possessed by the Bank or the Governor, as the case requires, the opinion (and the process that led to its formation) was not vitiated by—

( a) any significant and serious error or series of such errors,

( b) a mistake of law, or

( c) the evidence, taken as a whole, not supporting the finding.

(7) When considering whether to make an order under subsection (5), the Court shall have particular regard to—

( a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

( b) the need to protect users of financial services.

(8) An order under subsection (5) may be expressed to have effect—

( a) indefinitely, or for a particular period that the Court thinks appropriate, or

( b) until further order of the Court.

(9) A prohibition notice that has been confirmed by the Court (whether or not also varied by the Court) has effect as an order of the Court and may be enforced accordingly.

(10) Section 43 applies to any prohibition notice made by the Bank after reconsideration in accordance with an order referred to in subsection (5)(b)(ii).

(11) The setting aside by the Court of a prohibition notice does not of itself prevent the further exercise of the powers of the Bank, the Governor or the Head of Financial Regulation under this Part.