Company Law Reform Bill [HL] (517-523)

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Company Law Reform Bill [HL] (517-523)

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 35 — The registrar of companies
517

1076
Transliteration of names and addresses: certification
(1)
The Secretary of State may make provision by regulations requiring the
certification of transliterations and prescribing the form of certification.
(2)
Different provision may be made for compulsory and voluntary
transliterations.
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(3)
Regulations under this section are subject to negative resolution procedure.
Supplementary provisions
1077
General false statement offence
(1)
It is an offence for a person knowingly or recklessly—
(a)
to deliver or cause to be delivered to the registrar, for any purpose of
10
the Companies Acts, a document, or
(b)
to make to the registrar, for any such purpose, a statement,

that is misleading, false or deceptive in a material particular.
(2)
A person guilty of an offence under this section is liable—
(a)
on conviction on indictment, to imprisonment for a term not exceeding
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two years or a fine (or both);
(b)
on summary conviction—
(i)
in England and Wales, to imprisonment for a term not
exceeding twelve months or to a fine not exceeding the
statutory maximum (or both);
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(ii)
in Scotland or Northern Ireland, to imprisonment for a term not
exceeding six months, or to a fine not exceeding the statutory
maximum (or both).
1078
Enforcement of company’s filing obligations
(1)
This section applies where a company has made default in complying with any
25
obligation under the Companies Acts—
(a)
to deliver a document to the registrar, or
(b)
to give notice to the registrar of any matter.
(2)
The registrar, or any member or creditor of the company, may give notice to
the company requiring it to comply with the obligation.
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(3)
If the company fails to make good the default within 14 days after service of the
notice, the registrar, or any member or creditor of the company, may apply to
the court for an order directing the company, and any specified officer of it, to
make good the default within a specified time.
(4)
The court’s order may provide that all costs (in Scotland, expenses) of or
35
incidental to the application are to be borne by the company or by any officers
of it responsible for the default.
(5)
This section does not affect the operation of any enactment making it an
offence, or imposing a civil penalty, for the default.

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 35 — The registrar of companies
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1079
Application of provisions about documents and delivery
(1)
In this Part—
(a)
“document” means information recorded in any form, and
(b)
references to delivering a document include forwarding, lodging,
registering, sending, producing or submitting it or (in the case of a
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notice) giving it.
(2)
Except as otherwise provided, this Part applies in relation to the supply to the
registrar of information otherwise than in documentary form as it applies in
relation to the delivery of a document.
1080
Provisions requiring copies of court orders to be delivered to the registrar
10
In the following provisions (which require an office copy of certain court
orders to be delivered to the registrar) for “an office copy” substitute “a
copy”—
section 425(3) of the Companies Act 1985 (c. 6) (order sanctioning
compromise or arrangement);
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section 427(5) of that Act (order sanctioning compromise or arrangement);
section 201(4) of the Insolvency Act 1986 (c. 45) and Article 166(4) of the
Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19))
(order deferring date at which dissolution of company after winding
up is to take effect).
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1081
Supplementary provisions relating to electronic communications
(1)
Registrar’s rules may require a company to give any necessary consents to the
use of electronic means for communications by the registrar to the company as
a condition of making use of any facility to deliver material to the registrar by
electronic means.
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(2)
A document that is required to be signed by the registrar or authenticated by
the registrar’s seal shall, if sent by electronic means, be authenticated in such
manner as may be specified by registrar’s rules.
1082
Alternative to publication in the Gazette
(1)
Notices that would otherwise need to be published by the registrar in the
30
Gazette may instead be published by such means as may from time to time be
approved by the registrar in accordance with regulations made by the
Secretary of State.
(2)
The Secretary of State may make provision by regulations as to what
alternative means may be approved.
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(3)
The regulations may, in particular—
(a)
require the use of electronic means;
(b)
require the same means to be used—
(i)
for all notices or for all notices of specified descriptions, and
(ii)
whether the company is registered in England and Wales,
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Scotland or Northern Ireland;
(c)
impose conditions as to the manner in which access to the notices is to
be made available.

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
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(4)
Regulations under this section are subject to negative resolution procedure.
(5)
Before starting to publish notices by means approved under this section the
registrar must publish at least one notice to that effect in the Gazette.
(6)
Nothing in this section prevents the registrar from giving public notice both in
the Gazette and by means approved under this section.
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In that case, the requirement of public notice is met when notice is first given
by either means.
1083
Registrar’s rules
(1)
Where any provision of this Part enables the registrar to make provision, or
impose requirements, as to any matter, the registrar may make such provision
10
or impose such requirements by means of rules under this section.

This is without prejudice to the making of such provision or the imposing of
such requirements by other means.
(2)
Registrar’s rules—
(a)
may make different provision for different cases, and
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(b)
may allow the registrar to disapply or modify any of the rules.
(3)
The registrar must—
(a)
publicise the rules in a manner appropriate to bring them to the notice
of persons affected by them, and
(b)
make copies of the rules available to the public (in hard copy or
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electronic form).
1084
Payments into the Consolidated Fund

Nothing in the Companies Acts or any other enactment as to the payment of
receipts into the Consolidated Fund shall be read as affecting the operation in
relation to the registrar of section 3(1) of the Government Trading Funds Act
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1973 (c. 63).
1085
Contracting out of registrar’s functions
(1)
Where by virtue of an order made under section 69 of the Deregulation and
Contracting Out Act 1994 (c. 40) a person is authorised by the registrar to
accept delivery of any class of documents that are under any enactment to be
30
delivered to the registrar, the registrar may direct that documents of that class
shall be delivered to a specified address of the authorised person.

Any such direction must be printed and made available to the public (with or
without payment).
(2)
A document of that class that is delivered to an address other than the specified
35
address is treated as not having been delivered.
(3)
Registrar’s rules are not subordinate legislation for the purposes of section 71
of the Deregulation and Contracting Out Act 1994 (functions excluded from
contracting out).

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 36 — Offences under the Companies Acts
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1086
Application of Part to overseas companies

Unless the context otherwise requires, the provisions of this Part apply to an
overseas company as they apply to a company registered under the Companies
Acts.
Part 36
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Offences under the Companies Acts
Liability of officer in default
1087
Liability of officer in default
(1)
This section has effect for the purposes of any provision of the Companies Acts
to the effect that, in the event of contravention of an enactment in relation to a
10
company, an offence is committed by every officer of the company who is in
default.
(2)
For this purpose “officer” includes—
(a)
any director, manager or secretary, and
(b)
any person who is to be treated as an officer of the company for the
15
purposes of the provision in question.
(3)
An officer is “in default” for the purposes of the provision if he authorises or
permits, participates in, or fails to take all reasonable steps to prevent, the
contravention.
1088
Liability of company as officer in default
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(1)
Where a company is an officer of another company, it does not commit an
offence as an officer in default unless one of its officers is in default.
(2)
Where any such offence is committed by a company the officer in question also
commits the offence and is liable to be proceeded against and punished
accordingly.
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(3)
In this section “officer” and “in default” have the meanings given by section
1087.
1089
Application to bodies other than companies
(1)
Section 1087 (liability of officers in default) applies to a body other than a
company as it applies to a company.
30
(2)
As it applies in relation to a body corporate other than a company—
(a)
the reference to a director of the company shall be read as referring—
(i)
where the body’s affairs are managed by its members, to a
member of the body,
(ii)
in any other case, to any corresponding officer of the body, and
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(b)
the reference to a manager or secretary of the company shall be read as
referring to any manager, secretary or similar officer of the body.
(3)
As it applies in relation to a partnership—

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
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(a)
the reference to a director of the company shall be read as referring to a
member of the partnership, and
(b)
the reference to a manager or secretary of the company shall be read as
referring to any manager, secretary or similar officer of the partnership.
(4)
As it applies in relation to an unincorporated body other than a partnership—
5
(a)
the reference to a director of the company shall be read as referring—
(i)
where the body’s affairs are managed by its members, to a
member of the body,
(ii)
in any other case, to a member of the governing body, and
(b)
the reference to a manager or secretary of the company shall be read as
10
referring to any manager, secretary or similar officer of the body.
Offences under the Companies Act 1985
1090
Amendments of the Companies Act 1985

Schedule 3 contains amendments of the Companies Act 1985 (c. 6) relating to
offences.
15
General provisions
1091
Meaning of “daily default fine”
(1)
This section defines what is meant in the Companies Acts where it is provided
that a person guilty of an offence is liable on summary conviction to a fine not
exceeding a specified amount “and in the case of continued contravention to a
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daily default fine” not exceeding a specified amount.
(2)
This means that the person is liable on a second or subsequent summary
conviction of the offence to a fine not exceeding the latter amount for each day
on which the contravention is continued (instead of being liable to a fine not
exceeding the former amount).
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1092
Consents required for certain prosecutions
(1)
This section applies to proceedings for an offence under any of the following
provisions—
section 466, 468 or 916 of this Act (offences of unauthorised disclosure of
information);
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section 920 of this Act (failure to comply with rules about takeover bid
documents);
section 448, 449, 450, 451 or 453A of the Companies Act 1985 (offences in
connection with company investigations);
section 455 of that Act (offence of attempting to evade restrictions on
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shares).
(2)
No such proceedings are to be brought in England and Wales except by or with
the consent of—
(a)
in the case of an offence under—
(i)
section 466, 468 or 916 of this Act,
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(ii)
section 920 of this Act, or

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(iii)
section 448, 449, 450, 451 or 453A of the Companies Act 1985
(c. 6),

the Secretary of State or the Director of Public Prosecutions;
(b)
in the case of an offence under section 455 of the Companies Act 1985,
the Secretary of State.
5
(3)
No such proceedings are to be brought in Northern Ireland except by or with
the consent of—
(a)
in the case of an offence under—
(i)
section 466, 468 or 916 of this Act,
(ii)
section 920 of this Act, or
10
(iii)
section 448, 449, 450, 451 or 453A of the Companies Act 1985,

the Secretary of State or the Director of Public Prosecutions for
Northern Ireland;
(b)
in the case of an offence under section 455 of the Companies Act 1985,
the Secretary of State.
15
1093
Summary proceedings: venue
(1)
Summary proceedings for any offence under the Companies Acts may be
taken—
(a)
against a body corporate, at any place at which the body has a place of
business, and
20
(b)
against any other person, at any place at which he is for the time being.
(2)
This is without prejudice to any jurisdiction exercisable apart from this section.
1094
Summary proceedings: time limit for proceedings
(1)
An information relating to an offence under the Companies Acts that is triable
by a magistrates’ court in England and Wales may be so tried if it is laid—
25
(a)
at any time within three years after the commission of the offence, and
(b)
within twelve months after the date on which evidence sufficient in the
opinion of the Director of Public Prosecutions or the Secretary of State
(as the case may be) to justify the proceedings comes to his knowledge.
(2)
Summary proceedings in Scotland for an offence under the Companies Acts—
30
(a)
must not be commenced after the expiration of three years from the
commission of the offence;
(b)
subject to that, may be commenced at any time—
(i)
within twelve months after the date on which evidence
sufficient in the Lord Advocate’s opinion to justify the
35
proceedings came to his knowledge, or
(ii)
where such evidence was reported to him by the Secretary of
State, within twelve months after the date on which it came to
the knowledge of the latter.

Section 136(3) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date when
40
proceedings deemed to be commenced) applies for the purposes of this
subsection as for the purposes of that section.
(3)
A magistrates’ court in Northern Ireland has jurisdiction to hear and determine
a complaint charging the commission of a summary offence under the
Companies Acts provided that the complaint is made—
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Company Law Reform Bill [HL] (changed to Companies Bill [HL])
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(a)
within three years from the time when the offence was committed, and
(b)
within twelve months from the date on which evidence sufficient in the
opinion of the Director of Public Prosecutions for Northern Ireland or
the Secretary of State (as the case may be) to justify the proceedings
comes to his knowledge.
5
(4)
For the purposes of this section a certificate of the Director of Public
Prosecutions, the Lord Advocate, the Director of Public Prosecutions for
Northern Ireland or the Secretary of State (as the case may be) as to the date on
which such evidence as is referred to above came to his notice is conclusive
evidence.
10
1095
Legal professional privilege

In proceedings against a person for an offence under the Companies Acts,
nothing in those Acts is to be taken to require any person to disclose any
information that he is entitled to refuse to disclose on grounds of legal
professional privilege (in Scotland, confidentiality of communications).
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1096
Proceedings against unincorporated bodies
(1)
Proceedings for an offence under the Companies Acts alleged to have been
committed by an unincorporated body must be brought in the name of the
body (and not in that of any of its members).
(2)
For the purposes of such proceedings—
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(a)
any rules of court relating to the service of documents have effect as if
the body were a body corporate, and
(b)
the following provisions apply as they apply in relation to a body
corporate—
(i)
in England and Wales, section 33 of the Criminal Justice Act
25
1925 (c. 86) and Schedule 3 to the Magistrates’ Courts Act 1980
(c. 43),
(ii)
in Scotland, sections 70 and 143 of the Criminal Procedure
(Scotland) Act 1995 (c. 46),
(iii)
in Northern Ireland, section 18 of the Criminal Justice Act
30
(Northern Ireland) 1945 (c. 15 (N.I.)) and Article 166 of and
Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order
1981 (S.I. 1981/1675 (N.I. 26)).
(3)
A fine imposed on an unincorporated body on its conviction of an offence
under the Companies Acts must be paid out of the funds of the body.
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1097
Imprisonment on summary conviction in England and Wales: transitory
provision
(1)
This section applies to any provision of the Companies Acts that provides that
a person guilty of an offence is liable on summary conviction in England and
Wales to imprisonment for a term not exceeding twelve months.
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(2)
In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003 (c. 44), for “twelve months” substitute “six
months”.