As we all know, mistakes happen, and a common one is the filing of documents that contain errors or give more information than was intended. If this happens, what can a company do – and what can it expect Companies House to do?
To answer the second question first: Companies House will usually advise any company in this position that it accepts filings at face value and will only reject filings where there is a clear and obvious error to be corrected (for example, if there is a mismatch between the company’s name and number). Given the number of documents filed at Companies House daily, this is hardly surprising, if not particularly reassuring. Anyone believing that at this point Companies House will, or can, actively check, investigate and rectify any errors beyond the obvious ones may be disappointed.
Filing correction procedures
From the company’s perspective, the main point to keep in mind is that the directors are under a duty to keep the company’s information accurate and up to date; as such, any errors should be corrected as soon as possible after they come to light. How can this be done?
There are two possible options:
- To use the Companies House procedures to correct the information submitted. There are two such procedures. The first is the “Registrar’s Powers” procedure, by which the forms RP01 to RP07 can be used to vary or correct information. This applies to a variety of company procedures, but not to company accounts. However, the second applies exclusively to accounts, and is the replacement regime contained in the Companies (Revision of Defective Accounts and Reports) Regulations 2008.
- The other option is to obtain a court order, under the provisions of sections 1096 and 1097 of the Companies Act 2006.
The Companies House procedures tend to be straightforward to follow, although it would be sensible for the directors of the company to minute any discussions they may have about the error before they move to rectify it, as that will ensure a record is kept of what happened and why, and how it was rectified. It should also be noted that these procedures will only permit the company to file amending documents; these will not replace the incorrect document. This will remain on the public file, regardless of the error.
Removing documents from Companies House – court order
The court order can remove any erroneous document, accounts or otherwise, from the public file. The order will itself remain on file, detailing exactly which document has been removed – although not necessarily why. It can be possible for the order to be removed (or rather, not made public) but only with the consent of Companies House; this is unlikely to be granted save in the most exceptional cases. Rightly or wrongly, the view is taken that a company’s public record should be as complete as possible, errors, rectification of errors and all.
When can a court order be granted?
There are two tests: firstly (under sections 1096(1) and (3) of the Act), that the document has been filed without the company’s authority, and that the damage that the document’s presence on the Register will cause the company outweighs the interest that any other person may have in the document remaining there.
The first test is relatively straightforward: if a document is filed with an error, it could be argued that automatically it does not have the company’s authority; after all, why would any company or any director knowingly authorise the filing of an incorrect document?
The second test is rather more difficult to establish; given that there are Companies House procedures for correcting the public file, as noted above, the preference is for the ‘warts and all’ filing approach. As such, the expectation is that the directors should be able to show to the court that the error has caused or will cause damage to the company. In matters in which I have assisted, the harm shown or envisaged has typically been that the information has been personal to a director or has been sensitive financial information. These were supported by further disclosures, and the court was able to decide in the company’s favour.
The court order process is one which can be made on paper – that is, that the application can be made and granted (or indeed, refused) without a formal hearing. This in turn means that it is not necessary to instruct counsel to represent the company in court. However, it may be wise to seek counsel’s opinion on the likely success of the application, and particularly on meeting the requirements of the second test.
It is also wise to seek the guidance of Companies House on the application, as it has been known for their legal team to confirm if the Registrar will seek to oppose the application or not. If not, this will speed up the court’s decision, and will minimise the likelihood of needing either counsel’s involvement or hearing (it will not remove that completely, as the court may still have questions on the application).
If you would like to discuss the legal aspects of removing documents from the public file or require any assistance, please contact Adam Wadsley or his colleagues in Jordans Corporate Law.
0117 918 1339