Jennifer Adams considers the legal position should mistakes be made in documents submitted to Companies House, and looks at how such mistakes may be rectified.
Companies House is essentially a recording department and if mistakes are made on submission then their role is reactive rather than proactive. This means it cannot correct an error over the phone or amend without signed authority from either the person who originally submitted the incorrect material or the company itself. It has no legal authority to reject a properly delivered document.
Of all government departments, Companies House is known to make few mistakes (although no statistics are given in their Annual Report), which is why the mistake that befell the company in Sebry v Companies House 2015 was thought to be unprecedented.
In brief, a High Court judge ruled that a spelling error caused the 124-year-old Welsh family business to fail after it was wrongly recorded by Companies House as being wound up in 2009 – for more details see 'Companies House blamed for collapse of firm'. One point to note from the article is AccountingWEB member Caber Feidh's interesting comment detailing the Companies House procedures which lead to the mistake.
However the error was made, the case confirms that Companies House owes a common law duty of care to companies in respect of the information held on the Register. Following this case Companies House appears to be more vigilant, stepping up their rejection rate of submissions, (as detailed in this article, pointing out errors in submission and requesting amended documents.
This is exactly the situation AccountingWEB member scracey found himself in with reference to an inconsistency in a client's accounts that had been picked up by Companies House (in this Any Answers post). Companies House had written pointing out an inconsistency with information already on record and was demanding an amendment. The responses of members listing their experiences of similar situations make for interesting reading.
The process of amendment
Companies Act 2006 permits amendment in certain circumstances, either by submission of the corrected material together with the submission of a specific numbered form or by Court order. The relevant sections are to be found in s1072 – s 1076 'Requirements for Proper Delivery' and s1093 – s1098 'Correction or Removal of Material on the Register'.
The following is an overview of the more usual situations that members may meet:
- Unnecessary material s1074
This section covers the situation where material has been filed which is either not required or not authorised to be so e.g. where a company or LLP submits tax computations with the annual accounts, such pages neither being required or authorised to be delivered under any Act or Regulations.
If the material has been submitted on paper, then the unnecessary pages can easily be separated from the rest of the document. However, as most submissions are now online this is no longer so straightforward. Hence the submission is usually rejected with an amended version being requested using the s1076 'Replacement of document' route.
- 'Replacement of document' s 1076
This section applies if the original document does not meet with filing requirements (e.g. it was not signed if paper, or does not include the company or LLP name and number where required), or contains unnecessary material. The replacement document must be filed on paper with form RP01/LLPRP01 by the person who delivered the original or by the company to which it relates. It is then up to the Registrar to decide whether to remove the original document from the records - but they are under no legal obligation to do so. If not then both documents will remain on the register. Documents having legal consequences (e.g. change of name) cannot be removed.
- Inconsistencies s1093
Companies House cannot reject a form or submission just because the information appears to contradict material that has already been submitted; they must accept whatever is sent and load the material onto the Register. However, if their computer flags up inconsistencies with other previously submitted documents they can write to the company/LLP and request resubmission to correct. Should no response be forthcoming then they will issue a formal notice requiring delivery and it is an offence not to comply. On conviction, the penalty is £5,000.
Until the matter is resolved the Register will be annotated to show that there is an inconsistency.
Examples of the type of inconsistencies and the procedure for dealing with them can be found at this link.
Depending upon the error there are different forms that are required to be submitted (e.g. RP02b/LLRP02b for a change in registered office address.
- Informal correction s 1075
This section refers to charges and mortgages only. This is because there are legal time constraints on the delivery of such documents (21 days, beginning with the day after the day the charge was created.) If an error is found on the document submitted, then without this section the charge may miss the deadline date, rendering the charge invalid. Under the section Companies House will informally correct a document. However, they still require formal instructions from the person who authenticated the document (or the person who submitted it). For more details see this link.
- Second Filing
The filing of a second form (RP04 'Second filing of a document previously delivered') will correct a previously submitted incorrect one. The disadvantage of this route of rectification is that the original remains onsite although the newly corrected information will be headed 'Second Filing' so searchers can see what is correct.
Errors on only certain forms can be corrected, details of which can be found here.
Note: Correction of a confirmation statement
If a confirmation statement has been filed which is then subsequently found to be wrong then a form RP04 under 'Second Filing' must be submitted, together with replacement form. Despite the advice given in this 'Any Answers' posting, a second CS01 should not be submitted. Page one of form RP04 lists the documents that must use the 'second filing' route and the CS01 is shown.
- Court Order
There is no process by which documents that have been authorised, are correct, are consistent and which have met the filing requirements can be removed from the Register. Should material be required to be removed then the only way is via Court Order under s 1096. On application the Court looks at whether the material is invalid or effective, or has been done without the authority of the company, is factually inaccurate, or is derived from something factually inaccurate, or forged and if found proven only then will the material be removed.
S 1112 Companies Act 2006 makes it a criminal offence for a person to 'knowingly or recklessly deliver or cause to be delivered' a document that is 'misleading, false or deceptive'. On conviction, the sentence is up to two years in prison, or a fine, or both.
The Companies House document covering this area and detailing the process undertaken by Companies House can be found in this document 'Registrars Rules and Powers'.
About Jennifer Adams
Jennifer Adams is Consulting Editor of AccountingWEB and is a professional business author specialising in corporate governance and taxation. She runs her own accounting and consultancy business with offices based in Surrey and Dorset.