Disputes Between Company Directors

The Companies Registration Office (CRO), in the course of receiving/processing statutory filings in relation to Irish-registered companies, is occasionally made aware of the existence of a dispute between the directors/members of a company, for instance as to the identity of the directors of the company. This generally takes the form of a written objection to the registration of a Form B10 (notice of appointment of or change in director/secretary) on the basis that the content of the form is untrue or inaccurate.

In a typical case, the Office receives conflicting Forms B10s in respect of the company from the disputants, whereby one faction notifies CRO of officer appointments and/or terminations to which the other faction objects, resulting in the lodgment of a contradictory B10 from the opposing faction seeking to reverse the officer information that was notified to CRO in respect of the company on the previous B10. Typically, each set of disputants demands that CRO should abide by their version as to the identity of the company’s officers and should reject the version as notified by their opponents.

There appears to be an underlying assumption in all of these cases that the parties believe that the CRO register is determinative as to the identity of a company’s officers. This leads to factions filing conflicting B10s for the purpose of ensuring that the CRO register will record the company’s officers as notified by the faction concerned. The CRO register is not so determinative, however.

The CRO is, pursuant to the Companies Act 2014, a repository of information that has been submitted to it by or on behalf of companies on statutory forms. CRO has neither the authority nor the capacity to verify the content of those statutory forms. The onus is on a company to submit to CRO accurate information reflecting the contents of its own internal registers. It should be noted in this regard that it is a criminal offence pursuant to section 876 Companies Act 2014 knowingly or recklessly to notify false information to CRO on statutory forms, which offence is prosecutable summarily by the Office of Director of Corporate Enforcement (ODCE). Information is also required to be notified to CRO by companies on a timely basis.

While the public generally, and business in particular, place substantial reliance on the contents of the CRO register as to directorships of companies, it should be noted that the information that is held by CRO in this regard is only as reliable and as accurate as the information which has been provided to CRO by or on behalf of the company concerned on the statutory forms. The CRO register is not determinative as to the identity of the directors of a company. The question of whether an individual is or is no longer a director of a company is, ultimately, a matter of fact. If a company does not keep the CRO register up-to-date with regard to its officers or if inaccurate information as to company officers is supplied to CRO by or on behalf of a company, the CRO register will in those cases not reflect the factual position.

CRO’s task is to receive statutory filings in relation to companies and to register them - registration follows as a matter of course where a Form B10 is fully completed, has been signed on behalf of the company and certified as being correct by a current officer of the company and the information notified on the B10 is internally consistent and is not contradicted either by information previously submitted to the Office on statutory forms or by information received in the course of an objection by a third party to the registration of an unregistered B10. A registered submission cannot be administratively removed from the CRO register post-registration.

If CRO is made aware of a dispute between members/officers of a company and/or that contradictory or conflicting filings have been made to the Office in respect of a company’s officers in consequence of such dispute, which filings have not yet been registered, CRO is not in a position to adjudicate on the issues that are in dispute or rule on which filing is registrable. In order to avoid the registration of potentially misleading and inaccurate submissions, CRO’s general practice is to hold such unregistered submission/s in "Received" status for a maximum period of six months to enable the factions to resolve the issues in dispute, either by mutual agreement or, in the absence of such agreement, by recourse to the High Court for declaratory relief. After the six month period has expired, the temporary holding of submissions in "Received" status will automatically cease and CRO will continue to process these documents. If the parties resolve the dispute within this period of time, CRO should be notified and will accordingly remove the temporary hold on registration. Alternatively if legal proceedings have been initiated by either party in an attempt to resolve the issues within this period of time, on receipt of a certified copy of such, CRO will maintain the temporary hold on registration of the documents until the outcome of the court is known.

The application of this general practice is dependent on notice of the dispute being submitted in writing to the CRO and permission given to CRO to share a copy of it with the Company and its officers.

NB. It should be noted that the CRO is prescribed under the Freedom of Information Acts 1997 and 2003 ("the Acts"). Where requests for information are received under the Acts, there is a presumption of release of documents unless specific exemptions apply. Therefore parties submitting non-statutory submissions to the CRO should be aware that any records could be released by the CRO.

Responsibility for resolving such disputes lies with the directors themselves. CRO has no role in dispute resolution. Furthermore, it is a matter for disputing officers/members to obtain their own independent legal advice as to the dispute, and it is not appropriate to seek advice from this Office in relation to such disputes.

The CRO implements any High Court order that is received in respect of disputed filings, including rectification of the CRO register, where applicable. Clearly, it is desirable that parties act without delay to agree their differences or, in default, to institute legal proceedings, in order that registration of legitimate company information can be proceeded with by CRO.

Where filings received by CRO have been registered, being in order on their face and signed and certified as correct by a current officer, but CRO is subsequently put on notice of a dispute as to the accuracy of the contents of those submission/s, CRO has no legal power to remove the registered submission from the register. If a company wishes to have such registered submission removed from the register, the onus is on the company to apply to the High Court to have the register rectified and thereafter to lodge an office copy of the High Court order with CRO so that we can give effect to the Judge’s determination.

In summary, company directors and agents should be aware that CRO cannot and does not adjudicate on disputes as to who are the valid directors/secretary of a company and should further note that the "freezing", for a period of six months, by the Office of disputed submissions in "Received" status may prevent the Office from accepting submissions such as annual returns, with the attendant risk of the imposition of late filing penalties on the company concerned and other enforcement measures, such as prosecution or involuntary strike-off.