Company man

Dr Tom Courtney was central in the drafting of the 1,600-page Companies Act 2014. Now retired as a practising solicitor, he shares his thoughts with Áine O'Connor on the transition from life in a busy legal practice to his new focus on training, writing, podcasts, and as special advisor to an EU commissioner

After 32 years as a solicitor, the last 18 of which were as an equity partner at Arthur Cox LLP,  Dr Tom Courtney gave up practice two years early, on 30 June 2024.

The end of that phase of Tom's career has, however, cleared the way for a new one – from the pressures of practice to the pleasures of communication, as he focuses his expertise on company law in education, podcasts, and the corridors of the European Commission.

A life's work

Dr Courtney's relationship with Irish company law is, at this point, something close to a life's work. After a degree in law in his native Galway, he moved to Dublin to do his professional training at the Law Society of Ireland. He settled in the capital and began his career.

His interest in sharing information has run parallel with this career. He published the first edition of his book, The Law of Companies – the definitive Irish text on the subject – in 1994, when he was just 29 years of age.

"The only thing I wonder is how I ever managed to write earlier editions when I was holding down a very busy position in Arthur Cox," he reflects. "Every weekend that I wasn't doing client work, I was working on my book. It was evenings and weekends and holidays. I had no hobbies. Well, my wife and I have two daughters, and that was the extent of our hobbies!"

Tom is married to Aileen Hughes, who is a practising solicitor. Their daughters are also in law – Ally is a capital markets associate in A&O Shearman in London, while Sophie is a trainee solicitor in Arthur Cox. 

Since retiring from practice, however, he said that he has more time than ever to write, teach and train in company law, with palpable enthusiasm. 

Fifth edition

He is currently completing the fifth edition of The Law of Companies, which, he suggests, will be less of an update than a substantial reworking, as he reimagines better ways to explain company law. This latest edition is "well on the way," and is expected to be published in late 2026 or early 2027.

Company law is an ever-evolving field. "It's ten years since I wrote the last edition," he says. "If I printed off all the decisions of the High Court, Court of Appeal, and Supreme Court in those ten years, they would be at least as tall as myself, if not taller!"

Tom checks the Irish Courts Service daily, and monitors the superior courts of the UK (including the Supreme Court, the Privy Council, and the Court of Appeal) with the same regularity.

He notes that the oldest principle in company law, the doctrine of separate legal personality, established in Salomon v Salomon in 1897, continues to inspire judgments from Dublin to London.

"That decision is alive and well, forming the basis of judgments in our Supreme Court and High Court on a very regular basis," he says. "It is dynamic, constantly evolving – not just through case law interpreting the Companies Act, but through the legislation itself."

Busy area of law

Citing the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 and the Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024, he says, "It's a busy, busy area of law."

He agrees that it is a lot for a practitioner to keep on top of. "I think it's well accepted at this stage that there is a need for continuous legal education. You have to keep learning until you give up your practising certificate."

He says that the Law Society "plays an important role," in ongoing education for practitioners, issuing practice notes, guidance notes, standard documents, and similar.

"Every day is a school day," he says. "I know I don't know it all, and I'm at it all my life. I think that's a good approach to take to any subject. Never become complacent."

Dr Courtney has also established Courtney Governance Ltd, a training company providing bespoke company law and corporate-governance programmes. His clients include company directors and, to his surprise, an increasing number of law firms. "My focus had been on company directors and boards," he explains.

"I just didn't expect law firms to want it. But I was absolutely delighted to be approached."

The demand, it turns out, is straightforward: even firms with in-house knowledge managers benefit from a specialist whose sole focus is company law, and who has, as Courtney puts it, "their finger on the pulse as to what's happening."

The audiences, he says, make it worthwhile: "Nobody comes to these training sessions in law firms unless they really want to be there. It's a very engaged audience – and that makes it a pleasure to deliver."

Originality

He also curates an annual themed conference for Bloomsbury, designed around a principle he feels strongly about: originality.

"There are so many seminars," he says. "What I try to do to be different is to really encourage presenters to show originality of thought – so that people come away with more than just CPD. They come away with tangible new learning. Good training is all about the 'value add'," he comments.

He adds to this a bi-monthly podcast with his publishers Bloomsbury Professional, called 'In Company with Courtney', in which he interviews leading figures in Irish company law – from the chief executive of the Corporate Enforcement Authority to the Law Society's company-law experts.

He describes it as not just enjoyable, but instructive for him too. "The more you engage with people on a topic, the better you understand it yourself. And equally, you gain a better insight on their understanding of the law and, indeed, where there might be deficiencies in the law in terms of its structure."

Companies Act 2014

Tom was the inaugural chair of the Company Law Review Group, the statutory body tasked with keeping Irish company law under continuous review – a position he held for 18 years.

Looking back at the Companies Act 2014 with a decade's hindsight, Courtney is measured. "Broadly, we got it right," he says.

The consultative process that produced the legislation was, he believes, a model of its kind: "Every stakeholder, from IBEC to ICTU, to the banks, the Law Society, Bar Council, everybody who has a legitimate interest in company law, were able to participate. The Government accepted the vast majority of the review group's recommendations."

One significant structural change contained in the bill was the move away from 'Table A' – the schedule of internal governance rules that had governed companies since 1963 – in favour of approximately 150 optional provisions embedded within the act itself, applicable unless disapplied.

"It has become apparent to me that there isn't, perhaps, widespread familiarity among company-law users as to what those optional provisions are," he comments.

"If we were doing it all again, I would stick with the approach we took – but I would have pushed for the inclusion of a table of optional provisions set out in a schedule to the act, so that people could readily see what they are, rather than trawling through the act to find them."

This is a gap he has filled himself by compiling his own informal table of optional provisions, available freely on his website (www.courtney-governance.com) for anyone who needs it.

The act remains, he concedes, unwieldy by any measure: the largest piece of legislation in Irish history.

Its sheer volume is, perhaps, the one thing he cannot fully defend: "One of the biggest regrets I have is that it is so voluminous. Company law is inherently complex – simplifying it is something of an oxymoron. But the act is still too big! Perhaps now is the time to consider decoupling the content of financial statements from the core body of company law."

"Dreadful times"

Before the 2014 act, there was the financial collapse crisis, a time about which Tom says: "I think we will look back in years to come and marvel at how well we actually got out of that crisis."

From late 2007 through to 2013, Courtney was a central member of the Arthur Cox team advising the Department of Finance and working alongside the Attorney General's office on the suite of emergency legislation that would define Ireland's response to the financial collapse:

• The Anglo Irish Bank Corporation Act 2009,
• The National Asset Management Agency Act 2009,
• The Credit Institutions (Stabilisation) Act 2010,
• The Central Bank and Credit Institutions (Resolution) Act 2011, and
• The Irish Bank Resolution Corporation Act 2013.

"These were dreadful times for the country," he comments. "But without a shadow of a doubt, it was the most exciting, interesting, and personally rewarding time of my career as a solicitor," Tom says.

"To get up for work and go in and make a difference to the fate of your country and its financial institutions and its citizens – that was hugely rewarding. A great honour."

Legislative complexity

Each piece of legislation carried its own complexity. The Anglo Irish Bank Corporation Act, which nationalised Anglo, was, at its core, a company-law measure providing for the transfer of all shareholders' interests to the Minister for Finance, and governing what the board could and could not do.

NAMA was the creation of a statutory corporation, with carefully constructed provisions to ensure that, when NAMA acquired loans from banks, the associated security transferred intact.

"There are some very interesting provisions in NAMA," he says, "which turn off certain switches, company-law switches, which might otherwise have operated to invalidate the security for loans acquired by NAMA. The logic was clear: taxpayers' money was being used, and it was of national importance that NAMA had the full benefit of that security."

The Credit Institutions (Stabilisation) Act was more radical still, enabling the appointment of special managers to run institutions and empowering the minister to cut through existing company law to capitalise the banks.

"It was groundbreaking," Courtney says simply. "I met with the Troika when they came to Ireland, explaining how we were going to fix our banks. It was very clear to me that they were learning in that process too."

He worked alongside Paul Gallagher SC, the attorney general at the time, of whom he says: "His commitment, knowledge and drive to get all of that legislation passed – it was a privilege to work with him. He was one of the smartest people I have ever worked with."

Over-regulation

Regarding the lessons to be learned from those years, Courtney is direct: "Banks shouldn't overextend, but we were in the situation we were in because of a whole combination of events – over-lending in the Irish market, and then the collapse of Lehman's. It was almost a perfect storm."

Regulation, he acknowledges, has since tightened dramatically, perhaps, he suggests, too dramatically.

"You might even question whether there is over-regulation. When a bank's board is constantly focused on financial regulation and compliance, important as it is, it cannot be the only thing they focus on. That does stifle innovation and creativity."

What Ireland does have now, he argues, is a legislative toolbox that did not exist before: special resolution provisions, examinership legislation, and the Small Company Administrative Rescue Process (SCARP), introduced as part of the Companies Act 2014.

"The toolbox has never been more full of remedial procedures," he says. "Of course, the best procedures in the world won't magic up money. If a company is insolvent, all the legislation in the world isn't going to make it solvent. But I think we are in a stronger position now than we were 20 years ago."

EU Inc

Last year, Dr Courtney was appointed special advisor to the EU Commissioner for Justice, Democracy and Rule of Law, Michael McGrath – a pro bono position, he is careful to note – with a specific brief: to provide strategic and political advice on the development of the '28th Regime', formally known as the EU Inc.

The proposal, published on 18 March this year, represents the EU's most serious attempt yet to create a pan-European private company type – a single legal form that businesses across all 27 member states could adopt, regardless of where they are incorporated.

"It's bigger than just a company type," Tom explains. "It also seeks to promote digitisation, one-stop shops for companies – the ambition is significant."

Particularly because previous attempts have foundered: the 'Societas Europaea', introduced 25 years ago as an EU public-limited-company equivalent, gained almost no traction.

Creating a pan-European company type is, Tom notes, "a notoriously difficult nut to crack". However, the current geopolitical climate, although challenging, may help work towards the success of the 28th Regime.

EU jersey

"There has never been a better time to think strategically and to perhaps put some national interests – I won't quite say, 'push them aside', but to wear the EU jersey with a greater sense of pride and urgency," he says. "The EU is, if not quite under attack, very much having to look after its own interests in the world today."

His advice to Commissioner McGrath (for whom Courtney has great praise for his vision and grasp of the issues) has been strategic rather than draft-focused, identifying what must and must not be included in the new regime.

On one point, he feels particularly strongly: the need for a uniform template set of articles of association.

"For every 'EU Inc' to potentially have the same constitution – looking the same, feeling the same, broadly containing the same provisions – will go a long way towards making a very useful new legal form with which to do business across the EU."

He is pleased to report that the recommendation has been taken up. The proposed regulation makes provision for a template constitution to be developed under delegated authority by the commission.

"I have stressed the importance of that being available from the get-go, as soon as the regulation comes into effect," he says. He adds that existing companies could either set up new EU Incs or it might be possible to convert existing companies into EU Incs.

Asked whether he felt he had influence in the process, he said: "I'm under no illusions that Tom Courtney in Ireland is going to turn the EU Commission on its head. But where I feel strongly on things – and I do feel very strongly on the template articles – I'd like to think I was influential in ensuring that that approach has been taken."

Change of gear

Retirement from practice, then, has not meant slowing down for Dr Tom Courtney. He has squeezed in some hobbies, notably walking his beloved chocolate labrador Howie, but has no intention of taking his foot off the work pedal.

"I don't think it's healthy for anybody to stop thinking or working," he says. "I think it can be very dangerous in terms of one's mental decline. It's healthier if you're thinking and you're working."

And there lies the one big, and appreciated difference in his life since retiring from being a practising solicitor. "No one rings me at five o'clock on a Friday looking for urgent training to be delivered over the weekend. It's far more relaxed."

Áine O'Connor is a freelance journalist for the Law Society Gazette.