Rectification of the Register
RECTIFICATION OF THE CRO REGISTER
The onus is on a company and its officers when completing a statutory submission to ensure that documents submitted to the CRO pursuant to the Companies Acts are fully, accurately and properly completed. Most CRO forms contain a certificate that has to be signed by a current officer of the company, certifying that the content of the form is correct.
Not all errors made on statutory forms are detected or indeed capable of detection by CRO prior to registration. Statutory filings that are in order on their face are accepted in good faith by CRO and registered by the Office. Even where the filing is not in order on its face, this may not be detected prior to registration as the CRO carries out checks on statutory filings in accordance with the availability of resources and the priorities of the Office as determined from time to time by the Registrar.
The Registrar of Companies has no general power under the Companies Acts 1963-2009 to administratively amend the CRO register or to allow amendments to be made to registered documents. Neither does the Registrar have a statutory power to remove registered submissions from the register. The High Court, by virtue of its full original jurisdiction under the Constitution to deal with all justiciable matters, has power to direct rectification of the CRO register, including the removal of registered submissions in appropriate cases and their replacement by a different submission. In such cases, the CRO register will reflect what has happened as there will be a court order on the register explaining how a registered submission came to be removed and how a different submission has come to be placed on the register in its stead.
ADMINISTRATIVE RECTIFICATION
There is just one limited instance where the Companies Acts permit administrative rectification of the CRO register and that is where the company has itself rectified its own section 116 register of members, and the error or omission that the company rectified in its own register of members also having been contained in an earlier filing with the CRO. Section 122(5) CA 1963 provides that:
"A company may without application to the court, at any time rectify any error or omission in the [section 116] register but such a rectification shall not adversely affect any person unless he agrees to the rectification made. The company shall, within 21 days, give notice of the rectification to the registrar of companies if the error or omission also occurs in any document forwarded by the company to him".
Section 122(5) aside, the Companies Acts do not refer to administrative rectification of submissions that have been filed with CRO and which have been registered. The Registrar accordingly does not have such a power.
RECTIFICATION FALLING OUTSIDE SECTION 122(5)
CRO receives very many requests for correction of registered documents. The Office informs such requesters that CRO has no statutory power to allow removal of registered documents from the register and their replacement and/or no statutory basis to allow amendments to be made to registered documents.
There is, of course, a public interest in having correct company information available on the register. To this end, CRO generally accepts replacement submissions from companies, marked as such and expressed to be "in lieu of" a previous submission , but in these cases, the original submission will remain on the register, unless a High Court order directing its removal is obtained by the company concerned and filed with CRO.
EXCEPTIONS
There are a number of exceptions to the CRO’s policy of allowing companies to file replacement submissions, principally Form C1 (registration of a charge), Form B5 (allotment of shares), Form A1 (incorporation), re-registration applications, change of name applications and the filing of documents instituting a members' voluntary winding up (Form 12).
Form C1: the practice of accepting replacement submissions does not apply in relation to charges. Legal effectiveness is dependent upon delivery of certain prescribed particulars of the charge (Form C1) to CRO within 21 days from date of creation of the charge. Section 106 of the Companies Act 1963 provides that application may be made to the High Court where there was a misstatement or omission of any particular with respect to a registrable charge on a Form C1 to have the omission or misstatement rectified. Section 106 is accordingly the appropriate route to be availed of where a company or presenter or lending institution realises, after the 21-day period for delivery of Form C1 has elapsed, that there was an omission from or a misstatement in the Form C1 - no administrative solution is accordingly possible where there has been an error in the C1.
Form B5: the prohibition on the reduction of issued share capital that is imposed by section 72(1) of the Companies Act 1963 precludes the CRO from accepting and registering replacement Forms B5 where the replacement would result in a reduction in the company's issued share capital as recorded by the CRO.
Form A1: a conclusively binding certificate of incorporation has been issued by CRO on foot of the Form A1 that was filed by a company. A replacement A1 cannot therefore be filed "in lieu of" the A1 on foot of which the company was incorporated.
Form B74: with regard to the requirement that a director who is disqualified abroad disclose that disqualification on Form B74 when his appointment as director of an Irish-registered company is being notified to CRO on Form A1 or B10, the Companies Acts provide that where such disclosure does not accompany the Form A1 or B10, as applicable, or where the Form B74 is false or misleading in a material respect, the director concerned is deemed to be subject to a disqualification order in this jurisdiction for the remainder of the term of his/her foreign disqualification. It is not possible to reverse this deemed disqualification by the late delivery of a B74 to the CRO or, where the B74 contained false or misleading information, by filing an amended B74 with CRO.
Re-registrations: a conclusively binding certificate of incorporation has been issued by CRO on foot of a re-registration application that has been completed. A replacement re-registration cannot therefore be filed "in lieu" of the original re-registration application.
Change of Name: a conclusively binding certificate of incorporation reflecting the company’s name change is issued by CRO on conclusion of the change of name process. A replacement change of name application cannot accordingly be filed "in lieu" of the original change of name application.
Business Names: a certificate of registration is issued by CRO on foot of a business name application that has been completed. A replacement business name application cannot be filed "in lieu" of the original re-registration application. Pursuant to section 7 of the Registration of Business Names Act 1963, a notification of change of particulars may be filed whenever a change is made or occurs in any of the particulars registered in respect of any person under that Act - this method may be utilised to correct the register of business names where necessary. A fresh certificate is issued by CRO pursuant to section 8(1) of the RBNA 1963 on registration of a section 7 notification of change of particulars.
Form 12: if a declaration of solvency is not delivered to CRO in accordance with the requirements of section 256(1) and (2) of the Companies Act 1963, the declaration of solvency is ineffective under the Companies Acts and the winding up becomes a creditors' voluntary winding up, pursuant to section 256(11) - this cannot be cured by the filing of a replacement Form 12.
SUMMARY
Where a company files a submission, for example, an annual return, which is in order on its face and is registered by CRO, and subsequently realises that the return was factually incorrect in some way, CRO will generally accept an amended return from that company (the return initially filed remains on the register), on the basis that it is in the public interest that the CRO register contain the corrected, updated information. CRO cannot and does not guarantee that any particular submission takes precedence over another. As indicated above, certain forms cannot be replaced, including Forms C1, A1, 12 and re-registration applications. An amended Form B5 cannot be accepted for registration by CRO where the replacement would result in a reduction in the company's issued share capital as recorded by CRO. A High Court order directing rectification of the register is required in the foregoing cases if a company/presenter wishes to remove a registered submission from the register and replace it with another or to amend a registered submission. In relation to the Form 12 (declaration of solvency), the method that is most commonly availed of to correct the situation is for the company to seek a court order annulling the resolution to wind up pursuant to section 280 CA 1963. On receipt of such court order by CRO, the status of the company is reset from "Liquidation" to whatever it was prior to receipt by CRO of the winding up documentation.
CRO, March 2010
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