40.— (1) The Assessor shall determine the fair and reasonable amount of compensation, if any, payable to each creditor who applies for compensation.

(2) The Assessor shall, in determining the amount of compensation referred to in subsection (1), have regard to—

(a) the financial obligation of the transferor to the creditor,

(b) the dividend that the creditor received on the winding-up of the transferor,

(c) the dividend that it is likely that the creditor would have received had a winding-up order been made instead of the transfer order,

(d) whether a financial incentive was provided under section 46,

(e) whether financial support (within the meaning of the Act of 2008) or any other financial assistance, investment or guarantee was provided to the transferor by the State at any time,

(f) whether it was reasonable in all the circumstances for the creditor to have undertaken the financial obligation with the transferor, having regard to the financial position of the transferor at that time,

(g) whether the financial obligation of the creditor was undertaken before or after the passing of this Act,

(h) whether the creditor took steps to secure the satisfaction of the financial obligation before the transfer order was made,

(i) any relevant evidence that the Assessor obtains in the performance of his or her functions,

(j) any submissions made to the Assessor, and

(k) any other relevant matter.

(3) The Assessor shall make the determination required by subsection (1) on the basis of the information and evidence available to him or her at the time he or she makes it.

(4) A conclusion drawn or finding made by the Assessor in making the determination required by subsection (1) does not amount to a finding of fact for any purpose other than the purposes of this Act.

(5) The fair and reasonable amount of compensation, if any, payable to a creditor—

(a) shall not exceed the actual loss incurred by the creditor that has been proved, to the satisfaction of the Assessor, to have arisen directly from the making of the transfer order, and

(b) may be determined to be—

(i) less than the actual loss so incurred, or

(ii) nil.

(6) Whenever the Bank so requests, the Assessor shall report to the Bank as to his or her progress in making the determination required by this section.

(7) The liquidator of a transferor shall cooperate with the Assessor and shall deliver to the Assessor the books and records of the transferor and of the liquidator which, notwithstanding section 305(1) of the Companies Act 1963, shall not be disposed of.