Changes Under The Bill
The Companies Bill 2012 (the "Bill") proposes to amend existing company law provisions that stipulate that a certificate of registration of a charge issued by the Companies Registration Office ("CRO") constitutes conclusive evidence that compliance has been made with statutory requirements to deliver particulars of that charge to the CRO.
The effect of the amendment will be that the certificate will not constitute conclusive evidence of compliance for any property or properties secured by the charge where the particulars delivered to the CRO will have omitted the particulars required to be delivered in respect of that property or properties. In this regard, the section stipulates that "property" includes an interest in, or a right over, property. The Bill does not give significant guidance on what particulars of property must be delivered except for stipulating in Section 414 (1) (f) that the particulars required to be registered by the CRO include "short particulars of the property charged".
The current position is that a certificate of registration of a charge constitutes conclusive evidence of compliance with the charge registration requirements in the Companies Acts 1963 to 2012. The courts have been asked to decide on what "conclusive evidence" means in this context on a significant number of occasions. As a result, the courts have decided that, because of the conclusiveness of the certificate, the mortgage or charge to which that certificate relates is effective against all interested persons according to the terms of that mortgage or charge, even if the particulars of it submitted to the CRO are inaccurate as to the amount secured, or the property secured by the mortgage or charge, or the name or identity of the company which has created the mortgage or charge, or the date on which it was created.
As a result of Section 415 (3) of the Bill, if the required particulars of a property secured by a charge are omitted from the particulars of that charge submitted to the CRO, then the certificate of registration of the charge will not be conclusive evidence that compliance has been made with the registration requirements with respect to the charge as it extends to that property. More fundamentally, Section 409 (2) of the Bill stipulates that if charge particulars received by the CRO omit required particulars in respect of one or more properties to which the charge relates, the charge as it extends to that property or properties will be rendered void (as against the liquidator and any creditor of the company) but not otherwise.
It is the practice of solicitors at present to deliver comprehensive particulars of charged property to the CRO with a view to discharging the obligation to ensure that the CRO receives "short particulars of the property charged". Solicitors may well attempt to be even more comprehensive as a result of the changes proposed under the Bill. It is conceivable, however, that the courts will interpret these changes in a restrictive manner given the large body of case law that exists in relation to the conclusiveness of certificates of registration at present. For example, it may well be that inaccurate particulars of property will not result in the charge being rendered void with respect to the relevant property given that there has not been an omission to provide particulars but inaccuracies in the particulars provided. Arguably, this would be a sensible approach for a court to take in circumstances where the property secured by the charge is clearly identifiable from the particulars provided. Equally, if the property cannot be identified by the particulars provided, the court should conclude that there has been an omission to provide the required particulars of it. It remains possible that a zero tolerance approach will be taken by the courts and solicitors should take care to ensure that particulars delivered by them to the CRO describe properly every property secured by the charge. Given that Section 415 (4) stipulates that property includes an interest in, or right over, property, a prudent solicitor will likely describe the extent of the interest held by the charging company in the relevant property when preparing the particulars of the charge to be delivered to the CRO.