177 / 462
GAZETTE
JUNE 1992
it cannot be effected. Such a letter is
a sufficient safeguard for any lender
who takes a charge in such
circumstances, and this letter should
be treated as is if were a Certificate
of Registration. Indeed, in that the
common parlance of the Irish CRO is
that delivery of such particulars have
been noted on the
"Slavenburg File",
in indicative of the "Hibernisation"
of this decision and its implications.
The Meaning of "Established Place
of Business"
It is vital to appreciate that unless a
company has an established place of
business in the State (Republic of
Ireland), full registration on the
ordinary Register of Charges, or
informal " no t a t i on" on the
"Slavenburg File"
is
not
required.
What then is meant by an
"established place of business"?
The definition of "established place
of business" has not fallen for
discussion in the Irish courts. Note
though that in
Donovan
-v-
North
German Lloyd Steamship Co
(1933)
IR 33 it was held that service of
proceedings on a foreign company
was not satisfied by serving the
summons on an address in Ireland,
because the defendant company,
while having an "office", did not
have a place of business in the Irish
State. Despite the facts that
"Apparently the defendant company is a
foreign corporation, whose ships from
time to time, make calls of port in this
country, particularly at Cobh. At Cobh
there is, and has been for some time, an
office bearing the name of the defendant
company in large letters, and this fact and
several others were relied upon for the
purpose of showing that the defendant
company resided in this country in the
sense in which a corporation can be said
to reside in any country. Reliance was also
placed on the fact that the name of the
defendant company appeared in the
telephone directory, and on the fact, as
alleged, that they were the rated occupiers
of the premises in which the aforesaid
office is situate."
However, the lease of the premises
was held by another company, which
acted as "agent" for not only the
defendant company, but also other
foreign companies. Here it was held
that the defendant company could not
have proceedings served upon it.
However, whether the facts of this
case would today justify an Irish
court to hold that it did not have an
established place of business in the
context under consideration is
debatable.
As such, we must confine our
consideration to those decisions of
the English courts which addressed
the issue. Regarded as " t he most
apposite case in the present
context"
10
is the decision of the
Court of Appeal in
Re Oriel Ltd.
[1985] 3 All ER 216 where the issue
of established place of business was
considered in the context of the
requirement that a foreign company
deliver particulars of the charges it
creates where it has
not
registered
under the English equivalent to our
Part XI Companies Act, 1963. Here,
the company concerned was
registered in the Isle of Man. Its
objects were the acquisition,
mortgaging and management of a
company which was controlled by a
husband and wife who lived in
England. Subsequently, the company
acquired three garage sites in
England and upon entering a solus
agreement, charged them to the
petrol supplier. Expansion turned to
boom and three more sites were
acquired, and charged. The
management of the company was
conducted by the husband-director,
who gave as an address the registered
office of the company and his own
personal address. However, the
company was never registered on the
UK companies external register. As
these things happen, the company
was wound up, and the question
arose were the charges valid in that
they had never been registered?
Essential to the argument of the
liquidator was that the company had
an
established place of business
in
England, and as such the charges
ought to have been registered, or, at
least, particulars delivered in that the
company had never registered on the
external register. Faced with these
facts, the Court of Appeal decided
two particularly contentious issues.
Firstly, it was decided that the
relevant date for determining
whether or not a company had an
established place of business was the
date when it actually created the
charge in question.
Secondly, as to what was meant by
" an established place of business",
was said by Oliver LJ to suggest
11
". . . that it is essential to an 'established
place of business' that there should be
some visible sign of physical indication
that the company has a connection with
particular premises. . .
Speaking for myself, I think also that
when the word 'established' is used
adjectively, as it is in [S.lll], it connotes
not only the setting-up of a place of
business at a specific location, but a
degree of permanence or recognisability
as being a location of the company's
business. If, for instance, agents of an
overseas company conduct business from
time to time by meeting clients or
potential customers in the public rooms
of an hotel in London, they have, no
doubt, 'carried on business' in England,
but I would for my part find it very
difficult to pursuade myself that the
hotel lounge was 'an established place of
business'. The concept, as it seems to
me, is of some more or less permanent
location,not necessarily owned or even
leased by the company, but at least
associated with the company and from
which habitually or with some degree of
regularity business is conducted."
On the facts of the present case, it
was held that in respect of the first
three charges, particulars of these
were
not
required to be delivered to
the CRO because the company
then
did not have an established place of
business. However, in respect of the
three further charges, particulars of
these ought to have been delivered to
the CRO because at
that time
the
company
had
an established place of
business.
The use of the word
"established"
connotes some ensconced or settled
place of business so, to be an
established place of business, that
place must have some degree of
permanence, and must not be merely
transitory or 'happenstantial' on,
say, a representative of the company
concerned meeting a person in a
particular place. Indeed, the very
words in S.lll support such a view,
in that it implicitly requires a
company to which it applies to have
a "principal place of business"
which is deemed to equate with an
Irish registered company's registered
office. Indeed, a further test for
153