The Gazette 1981

GAZETTE

SEPTEMBER 1981

Companies

Registration Office

The Society has been discussing with the Registrar of

Companies problems which have arisen in practice and

which could, with the co-operation of the profession, be

substantially reduced or eliminated, to the general good of

all concerned.

The Registrar has been good enough to submit to the

Society some observations on present difficulties,

attention to which would certainly avoid a great many

unnecessary delays and frustrations.

The more important of the Registrar's comments are

as follows:—

1. Memoranda and Articles of Proposed New

Companies:

These documents, on incorporation of the Company,

become permanent records and, by law, are required to be

held by the Registrar for examination by the public. They

are subject to extensive handling and photocopying. In

the circumstances, the paper used should be of good

quality and the characters should be clear and durable in

accordance with the definition of "printed" in Section

2(1) of the Companies Act, 1963. In practice,

Memoranda and Articles very often fall short of these

requirements.

(a) Paper too flimsy — typing post (normally used for

carbon copies of letters) and even printers' proofs have

been submitted.

(b) Photostat Memoranda and Articles are received in

which words, and, indeed, occasionally entire

paragraphs are smudged or illegible, for one reason

or another.

(c) It would appear that the characters produced by, at

least some, electric typewriters are not durable —

certainly they are easily erased.

(d) Although there is no objection to a reasonable

amount of amendment or smplification of a

paragraph in manuscript, some Memoranda and

Articles are received with entire paragraphs written in

manuscript: indeed, in a recent example, an entire

paragraph was written on the top margin of the

paper, with a footnote to indicate its sequence in

relation to the other paragraphs of the document.

(e) The Companies Act, 1977, provides that that Act and

the 1963 Act may be cited together as the

Companies Acts, 1963 to 1977. Although the 1977

Act came into operation on 1st April 1978,

Memoranda and Articles are still being received with

the legislation stated simply as Companies Act, 1963.

In some cases the omission persists, notwithstanding

that the attention of the practitioners concerned has

been drawn to it on several occasions. Amplification

in manuscript is acceptable in this regard.

(0 It is not unusual for the Office to receive the Articles

prescribed by the Companies Act, 1963, for a limited

company, whereas an unlimited company is what is

proposed and vice versa. Recently such a case took

four weeks of correspondence and phone calls to

clear.

(g) Sometimes the Articles received are taken from the

U.K. Companies Act, 1948, or, indeed the

Companies Act, 1908.

(h) The recital at the end of the Memorandum frequently

is faulty in the subscribers' area. Either the names of

the subscribers and/or witness are omitted or the

number of shares taken by each subscriber is not

stated, or is stated in figures instead of words. A

delicate situation in this regard arises where the

number of shares taken by each subscriber is written

in the same hand. This generally happens where the

Companies Registration Office has previously

returned the document because the information

originally was omitted and some difficulty is

experienced in convincing practitioners that

amendment is essential.

Form 41 — Statutory Declaration of

Compliance

The Declaration is to the effect that all requirements of

the Companies Act, 1963, in matters precedent and

incidental to the incorporation of a company have been

met: it may be made either by a Solicitor engaged in the

formation of the company or by a person named in the

articles as a director or secretary. Where a person other

than the Solicitor makes the Declaration — say where the

Solicitor has handed over the case before the Declaration

is executed — the Companies Registration Office is often

left with the task of helping with the procedure —

amendment of Regulation 75 of Part I of Table A of the

Companies Act, 1963, for instance.

Post-Incorporation Requirements

When issuing the Certificate of Incorporation of a

company, the Registrar includes, with the Certificate,

information leaflets about the legal responsibilities of a

company after incorporation, with particular regard to

the various returns to be made to the Registrar. It is most

important, from the Registrar's viewpoint, that the leaflets

are passed on to the company, as companies often plead,

as an excuse for failing to make statutory returns, that

they were never notified that any returns were required.

Another point in this connection is that Solicitors who

have acted in the incorporation of a company are

subsequently unable to assist the Companies Registration

Office in efforts to obtain notification of the location

of the registered office of the company or the names

of its directors. Practitioners could greatly assist by

encouraging their clients to furnish the information

without delay. In many cases, indeed, the solicitor's office

is notified to the Companies Registration Office as the

registered office of the company. Later, however, efforts

of the Companies Registration Office to obtain the names

of the directors are to no avail. In cases where threats of

prosecution are forwarded to such registered addresses, it

is found that practitioners allowed the registration simply

to facilitate their clients and are unable to assist in having

the returns furnished.

4. Delays in Incorporation

(a) The Companies Registration Office is still receiving

enquiries from members of the public as to delay in

incorporating companies. Often it is claimed that the

Office had the case for Five or six weeks. In some of

these cases it is found that, in fact, no papers

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