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GAZETTE
MAY 1992
be
authenticated,
a procedure usually
involving the Irish Embassy in the
company's country of origin. If
necessary, documentation must be
translated.
Where a registered company creates
a registrable charge, then the
requisite particulars must be
registered with the Registrar of
Companies on a Form No. 8E. Such
charges are then noted on the regular
Companies Registration Office
(CRO) register of charges, by
reference to the number assigned to
it on its registration as an external
company.
The "Slavenburg File": Unregistered
Foreign Companies
A foreign company which has an
established place of business in the
State, but does not register as it is
required to do under S.352 (1)
Companies Act, 1963 is
obliged
to
forward particulars of the charge
which it creates to the CRO in the
same way (by using a Form No. 8E)
as a company which has registered.
This was first decided in England in
NV Slavenburg's Bank
-v-
Intercontinental Natural Resources
Ltd. et al
[19801. 1 All ER 955. Here
a company which was incorporated
in Bermuda had an established place
of business in England and created
charges over its assets which were
subsequently came to be reposited in
England. The company was not
registered in England nor were the
particulars of the charges registered
with the CRO. The property in
England was later sold, and the
proceeds of sale paid into a joint
account in the names of the parties'
solicitors. Sometime after, a
Bermudian court wound up the
company. Inter alia, it was argued
that the charges over the property
situated in England were void for
non-registration. It was held by
Lloyd J that although there was no
formal
method for registering such
charges, because the foreign
company did not have a company
number which it would have were it
registered on the external register,
particulars
of such charges were
required to be delivered to the
Companies Registration Office and
where such were not delivered, they
would be void as against a liquidator
or creditor. Because they could not
be formally
registered
was not a
sufficient reason for failing to deliver
particulars to the Registrar. In the
words of Lloyd J:
"The fallacy in the argument lies in
regarding registration of the charge under
[Part IV] as a condition precedent to its
validity. It is clear both from the
language of [S.99] . . . that it is delivery
of particulars of the charge, together
with the instrument (if any) by which it
is created or evidenced that saves that
charge, and not its registration. In the
National Provincial Bank
[(1924) 1 KB
431 at 447] case Scrutton LJ said, after
referring to the language of the section:
"That makes the avoidance dependant
on the neglect to send in the particulars.
The neglect to register the charge will
not make it void". . . So far as I am
concerned, it seems to follow that the
bank could have preserved the validity of
its charges by delivering particulars
within 21 days, despite the unwillingness
of the registrar to register the charge
without prior registration by the
company under [Part IV]. In those
circumstances. . . . [t]here is nothing
certainly in [S.lll] to suggest that the
operation of that section is dependent in
any way on the company having
registered under [Part XI i.e. as an
external company], and I am unwilling to
imply any such limitation."
So, it was thus the law in England,
and continues to be the accepted
practice in Ireland, that where a
foreign company which has an
established place of business in the
State, but which has not registered as
an external company under Part XI
of the Companies Act, 1963 creates
a charge over property, real or
personal, situate in Ireland, the
company, or the holder of that
charge, must deliver particulars of
that charge of the Irish Registrar of
Companies. Failure to do so will
render that charge invalid.
6
Slavenburg Reversed in England
Ironically, it should be noted that
the decision in
Slavenburg
has now
been reversed by the British
parliament enacting Schedule 15 to
the Companies Act, 1989, which
inserted new Sections 703A to 703N
into the Companies Act, 1985. The
effect of these changes is that a
foreign company which has
not
applied to be a "registered overseas
company" is not obliged to register
charges on its property in Great
Britain, notwithstanding that it may
have established a place of business
there.
7
. . . No tw i t h s t and i ng that the
par l i ament of the coun t ry wh i ch
gave birth to
Slavenburg
has
s e en fit to reverse its
imp l i ca t i ons, they wou ld appear
to c on t i nue to be law . . . in
Ireland.
Companies Registration Office
Practice in Ireland
Notwithstanding that the parliament
of the country which gave birth to
Slavenburg
has seen fit to reverse its
implications, they would appear to
continue to be the law, and certainly
the practice, in Ireland. Thus,
charges created in such circumstances
must still be delivered to the Irish
CRO.
8
However, what is the
Registrar and his staff to do in such
circumstances? After all, the
Registrar does not have any way of
registering
such charges in that he
does not have an Irish reference
number for the company. The
plight of the Registrar was addressed
in
Slavenburg
where Lloyd J said:
"Before leaving the point, I should say
that counsel for the defendants expressly
disclaimed any criticism of the registrar's
current practice. Nor would I, myself,
wish to criticise it in any way. His
reasons for insisting on the company
first registering under [Part XI] are clear
enough. But they cannot affect the
outcome of this case."
So what is the Registrar to do? The
answer is that following the lead set
by the English Registrar, the Irish
Registrar has opened, a so-called,
"Slavenburg File",
in which he notes
that he has received delivery of the
required particulars.
9
As was the case
in England, a letter will issue to the
effect that delivery of the particulars
has been received, but because the
company has not been registered as
having an established place of
business in the State and is thus not
registered as an external company,
registration of any charge created by
152