The Gazette 1992

GAZETTE

JUNE

1992

foreign company has an established

place of business in Ireland, will the

Irish Registrar of Companies

register

(in the case of foreign companies

registered on the external register),

and

file

on the

Slavenburg

file, (in

the case of unregistered foreign

companies) particulars of a charge

created. It is thought that while this

is the present law and practice in

Ireland, that it should at least be

asked, ought reform be

contemplated? At least two possible

alternative reforms are open to be

adopted by the Oireachtas.

On the one hand, reform could

follow the lead set by Britain as

mentioned above. This, it is

submitted, has the effect of

narrowing the possible scope of the

system for the registration of

charges, by turning its face to the

reality of many foreign companies

being in breach of their obligation to

S.352 (1) Companies Act, 1963. Such

is a curious development in that the

same statute which reversed

Slavenburg

also extended those

charges which require to be

registered in Britain, thus making the

British Register of Charges more

informative in another respect.

On the other hand, reform could be

achieved by the introduction of a

new requirement for registration of

all charges (at present registrable

under S.99 (2) Companies Act, 1963

in the case of Irish registered

companies) created over property

situate in Ireland,

whether or not

the

foreign company creating that charge

has an established place of business

in Ireland. This would have the

effect of accepting the realities seen

in the

Slavenburg

decision, and

putting them on a formal footing.

Such a requirement would only

enhance the usefulness of the

more complete. Indeed, as with the

Slavenburg

file itself, such would

also cater for the elusive solicitor's

letter of undertaking in respect of

title documents, which if given in

respect of an unregistered foreign

company, could not otherwise be

discovered by searching any of the

other registration systems, such as

the Land Registry or the Registry of

Deeds. It is submitted that if and

when the Irish legislature embarks

upon a further reform of Company

Law, that the latter reform option

would be the most desirable.

The above article is an extract from

the forthcoming book

"The Law of

Private Companies (& Other

Business Associations)"

by Thomas

B. Courtney and Prof. Liam

O'Malley which is scheduled for

publication by Butterworth (Ireland)

Ltd in November 1992.

and Butterworth (Ireland) Ltd.)

NOTES

1. For registration of company charges

generally, see Keane,

"Company Law in

the Republic of Ireland",

(1991)

Butterworths, Chapter 23, Ussher,

"Company Law in Ireland",

(1986) Sweet

& Maxwell 451-471, Forde,

"Company

Law"

(1985), Mercier 445-449,

McCormack,

"Registration of Company

Charges",

(1984) ILT 67 and Gough,

"Company Charges",

Butterworths.

2. See S.102 (1) and (2) which provides that

judgement mortgages should be registered

in the CRO. It has been suggested by

Judge Keane,

op. cit.

that non-registration

ought to render the judgement mortgage

void, but it is respectfully submitted that

in that since a judgement mortgage is not

"created" by the company concerned, it

ought not to be void in that the S.99 (1)

consequence of being void is dependent

upon a company "creating" a charge.

3. S. 352 (2) Companies Act 1963 provides

that various particulars should be included

in the list referred to in S. 352 (1) (b), for

example, names, address, nationality,

business occupation, particulars of other

directorships of Irish companies of

directors, etc.

4. Form No. IE, 2E, and 3E. See the

Companies Registration Office Information

Manual.

5. [1980] 1 All ER 955.

6. cf the case of a judgement mortgage

registered against a foreign company which

has an established place of business in

Ireland and which is not registered on the

external register. It is submitted that the

comments referred to above in the case of

judgement mortgages against Irish

registered companies applies here, and that

the only sanction is a fine, the charge

itself remaining valid.

7. See generally, Dine,

"Registration of

Company Charges",

(1991) Business Law

Review 31 and Ferran & Mayo,

"Registration of Company Charges - The

New Regime",

(1990) Journal of Business

Law 152.

8. See also

Re Oriel Ltd

[1985] BCLC 343

per Oliver LJ at 346 and see

Re Alton

Corporation

[1985] BCLC 27.

9. See S.103 (1) (a) and (b) for those particulars

which the Registrar of Companies is obliged

to enter in the register.

10. per Hirst J. in

Cleveland Museum of Art

-v-

Capricorn Art International SA

[1990]

BCLC 546 at 550i.

11. On the authority of

Derverall

-v-

Grant

Advertising Inc

[1954] 3 All ER 389.

12. See also

Re F.G. (Films) Ltd

[1953] 1 All

ER 615 and

The WorldHarmony

[1965] 2

All ER 139;

13. See, for example, the "new" S.395 (2)

Companies Act, 1985 (UK).

•

CLASP Concert

CLASP (Concerned Lawyers

Association for the Alleviation of

Social Problems) are having a

charity concert at the Gaiety

Theatre, Dublin on Sunday 24 May,

1992.

Music will be provided by "Chris

Meehan and his Red Neck Friends".

Special guest appearance, Mary

Black.

Tickets are £8.00, £10.00, £12.00,

£15.00 available from Box Office,

Gaiety Theatre, Dublin 2 or CLASP

members, Law Library, Four Courts,

Dublin 7, Telephone 720622.

All welcome - please support this

worthy event.

•

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VISIT OUR MUSEUM IN THE VAULTS

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