12 March 2013

Company Secretarial Focus – March 2013

Changes to registration of charges from 6 April 2013*

The Companies Act (Amendment of Part 25) Regulations 2013 are expected to come into force on 6 April 2013.  The regulations will allow for a more accessible registration process.

  • Electronic registration is now possible at a cost of £10 (certified copy of instrument can be submitted in pdf format with a size at 10MB), whereas paper filing is £13;
  • Certified copy of the instrument creating the charge is sufficient (Companies House say do not send the original, because it will not be returned);
  • Once submitted, the instrument creating the charge will be available for others to view;
  • It will be possible to redact the following sensitive information:
    o        Personal information (other than the name) of an individual;
    o        Number / ID of a bank or securities account.
  • To file electronically, any person not representing the company, including lenders, will have to apply for a lender authentication code, to use for future registration of charge documents.  Lender authentication codes (LACs) can be applied for from February 2013.
  • The 21 days limit for filing the particulars of a property acquired which is subject to a charge will be removed.
  • Any charge created on or after 6 April will be given a 12 digit Unique Reference Code on the certificate of registration.  This code will need to be provided when recording any subsequent amendment or satisfaction of the charge.
  • There are new forms, requiring less information (there are similar forms for LLPs)
    o        MR01 – Particulars of charge
    o        MR02 – Particulars of charge subject to which property or undertaking has been acquired
    o        MR03 – Particulars of the registration of a charge to secure a series of debentures
    o        MR04 – Statement of satisfaction in full or part of a charge
    o        MR05 – Statement that part or whole of the property charged (a) has been released from the charge (b) no longer forms part of the company’s property
    o        MR06 – Statement of company acting as a trustee
    o        MR07 – Particulars of alteration of a charge (particulars of a negative pledge)
    o        MR08 – Particulars of a charge where there is no instrument
    o        MR09 – Particulars of a charge subject to which property or undertaking has been acquired where there is no instrument
    o        MR10 – Particulars for registration of a charge in a series of debentures where there is no instrument
    o        RM01 – Notice of appointment of administrative receiver, receiver or manager
    o        RM02 – Notice of Ceasing to act as administrative receiver, receiver or manager

ICSA issues guidance on liability of non-executive directors (NEDs)

In January 2013, the ICSA issued a guidance note on “liability of non-executive directors: care, skill and diligence”.  The note provides some guidance on considerations of individuals before joining a board and on appointment.  The ICSA recommend that individuals focus not only on technical skills but also on the ethos of the company; they should take some time “developing and refreshing their knowledge and skills” to ensure that they have the particular skills required to join the board and to seek information from the company about the “culture, values and behaviours associated with the board”.
Upon their appointment, the ICSA recommends that the company provide a “comprehensive, tailored induction programme” and that the NED be given the opportunity to input into this.  As with all directors, the ICSA recommends that they ensure that they make decisions objectively, in the best interest of the company and follow the procedures in relation to conflicts of interests.

Embracing Technology

Companies House recently launched a mobile app!  For the discerning businessman on the go, this application provides access to company status, filings, registered office and appointments, and statistics on how many companies have been formed or dissolved.  Go tohttp://www.companieshouse.gov.uk/mobile-app/ to get this free app!

Audit Exemptions for Small Companies and Dormant Subsidiaries

The Companies and Limited Liability Partnerships (Accounts and Audit Exemptions and Change of Accounting Framework) Regulations 2012 introduced a new regime for companies’ accounting periods starting on or after 1 October 2012.

1. Audit exemption for small companies

In order to qualify for this exemption, the company must meet at least two of the three criteria:
(a) No more than 50 employees;
(b) A balance sheet total of no more than £3.26m;
(c) Turnover below £6.5m.
This also applies to small companies within a group.
Small and subsidiary LLPs may also be able to rely on exemption from audit by meeting similar criteria.

2. Dormant subsidiary exemptions

A dormant subsidiary which has been dormant for the entirety of the year and has a parent undertaking established under the law of an EEA state, may be exempt from having to prepare and file individual accounts and may be exempt from audit for financial years ending on or after 1 October 2012.
In order to qualify for either of these exemptions, the following conditions must be met:
(a)  All members of the company must agree to the exemption for that financial year and must deliver written notice of this agreement to the Registrar on or before the date that they file the accounts for that year,
(b)  The parent undertaking must give a guarantee under section 479C in respect of that year and deliver a statement of this guarantee to the Registrar on or before the date that they file the accounts for that year,
(c) The company must be included in the consolidated accounts drawn up for that year or to an earlier date in that year by the parent undertaking in accordance with—
(i) the provisions of the Seventh Directive (83/349/EEC)(1), or
(ii) international accounting standards,
The parent undertaking must disclose in the notes to the consolidated accounts that the company is relying on the relevant exemption.  The directors of the company must deliver a copy of the consolidated accounts, a copy of the auditor’s report and consolidated annual report to the Registrar on or before the date that they file the accounts for that year.

Form AA06 (statement of guarantee by a parent undertaking of a subsidiary company) will need to be filed each year in which an exemption is being sought.

Dormant subsidiary LLPs can also rely on the exemption on the need to prepare and file accounts if they meet the above requirements.

Watch this space!

There are currently ongoing consultations on:

  • Introducing a new category of company called “Micro-Entities”
  • Company and Business Names Regulations
  • Costs and benefits to companies transferring their registered offices abroad

The consultations are due to close later this month/April.

Q & A

“Does my company need a Company Secretary?”

Public limited companies are required to have a Company Secretary, but the Companies Act 2006 has removed the statutory obligation for private limited companies to have a Secretary.  However, your articles of association may require your private company to have a Secretary.  The role of the Secretary is to provide procedural advice, practical support and ensure compliance, and you may find it useful to appoint an individual/agent as Secretary to avoid the directors having to absorb these duties.  If you choose to appoint a Secretary, remember to update your register of secretaries and file either form AP03 and AP04 as appropriate.

* Information taken from Companies House website –http://www.companieshouse.gov.uk/pressDesk/news/part25CompaniesAct.shtml

Please note, this article was published by Rickerbys LLP before merging with Harrison Clark Ltd on 29 April 2013.

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About the Author
Helen Higginbotham, Senior Associate Solicitor
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