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Company Law Reform Bill [HL] (620-626)


Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 2 — Specified persons, descriptions of disclosures etc for the purposes of section 915
Part 2 — Specified descriptions of disclosures

620

 

           

Until the coming into force of that Part, the references to section 1216 and

Part 42 are to be read as references to section 46 of the Companies Act 1989

(c. 40) and Part 2 of that Act respectively.

54         

A disclosure for the purpose of enabling or assisting a recognised

supervisory or qualifying body, within the meaning of Part 42 of this Act, to

5

exercise its functions as such.

           

Until the coming into force of that Part, the reference to it is to be read as a

reference to Part 2 of the Companies Act 1989.

55         

A disclosure for the purpose of enabling or assisting an official receiver

(including the Accountant in Bankruptcy in Scotland and the Official

10

Assignee in Northern Ireland) to exercise his functions under the enactments

relating to insolvency.

56         

A disclosure for the purpose of enabling or assisting the Insolvency

Practitioners Tribunal to exercise its functions under the Insolvency Act 1986

(c. 45).

15

57         

A disclosure for the purpose of enabling or assisting a body that is for the

time being a recognised professional body for the purposes of section 391 of

the Insolvency Act 1986 (recognised professional bodies) to exercise its

functions as such.

58         

A disclosure for the purpose of enabling or assisting an overseas regulatory

20

authority to exercise its regulatory functions.

           

“Overseas regulatory authority” and “regulatory functions” have the same

meaning as in section 82 of the Companies Act 1989.

59         

A disclosure for the purpose of enabling or assisting the Regulator of

Community Interest Companies to exercise functions under the Companies

25

(Audit, Investigations and Community Enterprise) Act 2004 (c. 27).

60         

A disclosure with a view to the institution of, or otherwise for the purposes

of, criminal proceedings.

61         

A disclosure for the purpose of enabling or assisting a person authorised by

the Secretary of State under Part 2, 3 or 4 of the Proceeds of Crime Act 2002

30

(c. 29) to exercise his functions.

62         

A disclosure with a view to the institution of, or otherwise for the purposes

of, proceedings on an application under section 6, 7 or 8 of the Company

Directors Disqualification Act 1986 (c. 46) (disqualification for unfitness).

63         

A disclosure with a view to the institution of, or otherwise for the purposes

35

of, proceedings before the Financial Services and Markets Tribunal.

64         

A disclosure for the purposes of proceedings before the Financial Services

Tribunal by virtue of the Financial Services and Markets Act 2000

(Transitional Provisions) (Partly Completed Procedures) Order 2001

(S.I. 2001/3592).

40

65         

A disclosure for the purposes of proceedings before the Pensions Regulator

Tribunal.

66         

A disclosure for the purpose of enabling or assisting a body appointed under

section 14 of the Companies (Audit, Investigations and Community

Enterprise) Act 2004 (supervision of periodic accounts and reports of issuers

45

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 2 — Specified persons, descriptions of disclosures etc for the purposes of section 915
Part 3 — Overseas regulatory bodies

621

 

of listed securities) to exercise functions mentioned in subsection (2) of that

section.

67         

A disclosure with a view to the institution of, or otherwise for the purposes

of, disciplinary proceedings relating to the performance by a solicitor,

barrister, advocate, foreign lawyer, auditor, accountant, valuer or actuary of

5

his professional duties.

           

“Foreign lawyer” has the meaning given by section 89(9) of the Courts and

Legal Services Act 1990 (c. 41).

68         

A disclosure with a view to the institution of, or otherwise for the purposes

of, disciplinary proceedings relating to the performance by a public servant

10

of his duties.

           

“Public servant” means an officer or employee of the Crown or of any public

or other authority for the time being designated for the purposes of this

paragraph by the Secretary of State by order subject to negative resolution

procedure.

15

69         

A disclosure for the purpose of the provision of a summary or collection of

information framed in such a way as not to enable the identity of any person

to whom the information relates to be ascertained.

70         

A disclosure in pursuance of any Community obligation.

Part 3

20

Overseas regulatory bodies

71         

A disclosure is made in accordance with this Part of this Schedule if—

(a)   

it is made to a person or body within paragraph 72, and

(b)   

it is made for the purpose of enabling or assisting that person or body

to exercise the functions mentioned in that paragraph.

25

72         

The persons or bodies that are within this paragraph are those exercising

functions of a public nature, under legislation in any country or territory

outside the United Kingdom, that appear to the Panel to be similar to its own

functions or those of the Financial Services Authority.

73         

In determining whether to disclose information to a person or body in

30

accordance with this Part of this Schedule, the Panel must have regard to the

following considerations—

(a)   

whether the use that the person or body is likely to make of the

information is sufficiently important to justify making the

disclosure;

35

(b)   

whether the person or body has adequate arrangements to prevent

the information from being used or further disclosed otherwise than

for the purposes of carrying out the functions mentioned in

paragraph 72 or any other purposes substantially similar to those for

which information disclosed to the Panel could be used or further

40

disclosed.

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 3 — Amendments of remaining provisions of the Companies Act 1985 relating to offences

622

 

Schedule 3

Section 1090

 

Amendments of remaining provisions of the Companies Act 1985 relating to

offences

Misleading, false or deceptive statement in connection with valuation of non-cash

consideration etc

5

1          

In section 110 of the Companies Act 1985 (entitlement of valuer to full

disclosure), for subsections (2) and (3) substitute—

“(2)   

A person who knowingly or recklessly makes a statement to which

this subsection applies that is misleading, false or deceptive in a

material particular commits an offence.

10

(3)   

Subsection (2) applies to a statement—

(a)   

made (whether orally or in writing) to a person carrying out

a valuation or making a report under section 108 or 109, and

(b)   

conveying or purporting to convey any information or

explanation which that person requires, or is entitled to

15

require, under subsection (1) above.

(4)   

A person guilty of an offence under subsection (2) is liable—

(a)   

on conviction on indictment, to imprisonment for a term not

exceeding two years or a fine (or both);

(b)   

on summary conviction—

20

(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);

(ii)   

in Scotland or Northern Ireland, to imprisonment for

a term not exceeding six months, or to a fine not

25

exceeding the statutory maximum (or both).”.

Valuation procedures: matters to be communicated to registrar

2          

For section 111 of the Companies Act 1985 (matters to be communicated to

the registrar) substitute—

“111ZA  

Matters to be communicated to registrar: asset valuation report

30

(1)   

A company to which a report is made under section 108 as to the

value of any consideration for which, or partly for which, it proposes

to allot shares must deliver a copy of the report to the registrar for

registration.

(2)   

The copy must be delivered at the same time that the company files

35

the return of the allotment of those shares under section 569 of the

Company Law Reform Act 2006 (return of allotment by limited

company).

(3)   

If default is made in complying with subsection (1) or (2), an offence

is committed by every officer of the company who is in default.

40

(4)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to a fine;

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 3 — Amendments of remaining provisions of the Companies Act 1985 relating to offences

623

 

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum and, for continued contravention, a daily default

fine not exceeding one-tenth of the statutory maximum.

(5)   

In the case of default in delivering to the registrar any document as

required by this section, the company, or any person liable for the

5

default, may apply to the court for relief.

(6)   

The court, if satisfied—

(a)   

that the omission to deliver the document was accidental or

due to inadvertence, or

(b)   

that it is just and equitable to grant relief,

10

   

may make an order extending the time for delivery of the document

for such period as the court thinks proper.

111ZB   

Matters to be communicated to registrar: copy of resolution as to

transfer of asset etc

(1)   

A company that has passed a resolution under section 104 with

15

respect to the transfer of an asset must, within 15 days of doing so,

deliver to the registrar a copy of the resolution together with the

valuer’s report required by that section.

(2)   

If a company fails to comply with subsection (1), an offence is

committed by—

20

(a)   

the company, and

(b)   

every officer of the company who is in default.

(3)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 3 on the standard scale and,

for continued contravention, a daily default fine not exceeding one-

25

tenth of level 3 on the standard scale.”.

Contravention of certain provisions relating to the amount to be paid for shares and means of

payment

3          

For section 114 of the Companies Act 1985 substitute—

“114    

Penalty for contravention of ss.99 to 104 and 106

30

(1)   

If a company contravenes any of the provisions of sections 99 to 104

and 106, an offence is committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

(2)   

A person guilty of an offence under this section is liable—

35

(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”.

Failure to give notice to registrar of reorganisation of share capital

4          

For section 122(2) (failure to give notice to registrar of reorganisation of

40

share capital) of the Companies Act 1985 substitute—

“(2)   

If default is made in complying with this section, an offence is

committed by—

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 3 — Amendments of remaining provisions of the Companies Act 1985 relating to offences

624

 

(a)   

the company, and

(b)   

every officer of the company who is in default.

(3)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 3 on the standard scale and,

for continued contravention, a daily default fine not exceeding one-

5

tenth of level 3 on the standard scale.”.

Failure to send registrar statement or notice of particulars of shares carrying special rights

5          

For section 128(5) of the Companies Act 1985 (c. 6) (failure to register

allotment etc of shares carrying special rights) substitute—

“(5)   

If a company fails to comply with this section, an offence is

10

committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

(6)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 3 on the standard scale and,

15

for continued contravention, a daily default fine not exceeding one-

tenth of level 3 on the standard scale.”.

Failure to deliver to registrar statement or notice of newly created class rights

6          

For section 129(4) of the Companies Act 1985 (failure to register newly

created class rights) substitute—

20

“(4)   

If a company fails to comply with this section, an offence is

committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

(5)   

A person guilty of an offence under this section is liable on summary

25

conviction to a fine not exceeding level 3 on the standard scale and,

for continued contravention, a daily default fine not exceeding one-

tenth of level 3 on the standard scale.”.

Concealment of name of creditor entitled to object to reduction of capital, or wilful

misrepresentation of nature or amount of claim, etc

30

7     (1)  

Section 141 of the Companies Act 1985 (penalty for concealment or

misrepresentation of details of creditor in connection with reduction of

capital) is amended as follows.

      (2)  

Make the existing provision subsection (1).

      (3)  

Omit “and liable to a fine”.

35

      (4)  

At the end add—

“(2)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”.

40

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 3 — Amendments of remaining provisions of the Companies Act 1985 relating to offences

625

 

Director authorising or permitting non-compliance with requirement to convene company

meeting to consider serious loss of capital

8     (1)  

In section 142(2) of the Companies Act 1985 (c. 6) (failure to convene meeting

to consider serious loss of capital) for “is liable to a fine” substitute “commits

an offence”.

5

      (2)  

After that provision insert—

“(2A)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”.

10

Unlawful acquisition by company of its own shares

9     (1)  

In subsection (2) of section 143 of the Companies Act 1985 (prohibition

against acquisition by company of its own shares) omit “the company is

liable to a fine, and every officer of the company who is in default is liable to

imprisonment or a fine, or both; and,”.

15

      (2)  

At the end of that section add—

“(4)   

If a company purports to act in contravention of this section an

offence is committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

20

(5)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to imprisonment for a term not

exceeding two years or a fine (or both);

(b)   

on summary conviction—

(i)   

in England and Wales, to imprisonment for a term not

25

exceeding twelve months or to a fine not exceeding

the statutory maximum (or both);

(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).”.

30

Failure to cancel own shares acquired by company or to apply for re-registration as private

company

10    (1)  

In subsection (2) of section 149 of the Companies Act 1985 (penalty for

failure to cancel own shares or to re-register as private company when

required to do so) for the words “the company” to the end substitute “an

35

offence is committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.”.

      (2)  

At the end of that section add—

“(3)   

A person guilty of an offence under this section is liable on summary

40

conviction to a fine not exceeding level 3 on the standard scale and,

for continued contravention, a daily default fine not exceeding one-

tenth of level 3 on the standard scale.”.

 

 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Schedule 3 — Amendments of remaining provisions of the Companies Act 1985 relating to offences

626

 

Contravention of provisions dealing with treasury shares

11         

For section 162G of the Companies Act 1985 (c. 6) (failure to comply with

requirements in relation to treasury shares) substitute—

“162G   

Treasury shares: penalty for contravention

(1)   

If a company contravenes any of the provisions of sections 162A to

5

162F, an offence is committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

(2)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to a fine;

10

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”.

Failure to comply with disclosure obligations in connection with purchase of own shares

12         

For section 169(6) of the Companies Act 1985 (failure to comply with

disclosure requirements in connection with purchase of own shares)

15

substitute—

“(6)   

If default is made in delivering to the registrar any return or

statement required by this section, an offence is committed by every

officer of the company who is in default.

(6A)   

A person guilty of an offence under subsection (6) is liable—

20

(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum and, for continued contravention, a daily default

fine not exceeding one-tenth of the statutory maximum.”.

Failure to deliver to registrar return of cancellation or disposal of treasury shares

25

13         

For section 169A(4) of the Companies Act 1985 (failure to deliver to registrar

return in connection with cancellation or disposal of treasury shares)

substitute—

“(4)   

If default is made in delivering to the registrar any return or

statement required by this section, an offence is committed by every

30

officer of the company who is in default.

(5)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum and, for continued contravention, a daily default

35

fine not exceeding one-tenth of the statutory maximum.”.

Refusal of inspection of directors’ statement and auditors’ report relating to payment out of

capital

14         

For section 175(7) of the Companies Act 1985 (refusal of inspection of

directors’ statement and auditors’ report relating to payment out of capital)

40

 

 

 
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