Company law note: Bringing applications under s.859F locally
7th May 2019
Those practising in company law, and potentially those practising in conveyancing, may have come across the issues which arise when for one reason or another a charge created by a company has not been registered with Companies House within 21 days of its creation.
This brief note deals with the type of application which is required to extend the time limit for that registration, and, more specifically, where said application can be brought.
The initial time period of 21 days is specified in section 859A of the Companies Act 2006 as being the “period allowed for delivery” in respect of the relevant documents (i.e. the section 859D statement of particulars and any charge instrument).
Where the relevant documents have not been satisfactorily delivered to the registrar within 21 days, it is usually necessary to apply for an order extending said 21 day period pursuant to section 859F, which is helpfully titled ‘Extension of period allowed for delivery’.
The court may, on hearing such an application, extend the period allowed for delivery if it is satisfied that the relevant documents were not delivered on time, and that the section 859F(2) requirement is met. That requirement is as follows:
“(a) that the failure to deliver those documents –
(i) was accidental or due to inadvertence or to some other sufficient cause, or
(ii) is not of a nature to prejudice the position of creditors or shareholders of the company, or
(b) that on other grounds it is just and equitable to grant relief.”
In practice, such applications often feel like they ought to be more straightforward than they in fact are, and the process of ensuring that the various necessary parts of the application are present and correct can be rather painstaking.
One issue in particular which can arise is where to bring the relevant application, or to put it another way: must the application be brought in London, or can it be brought somewhere regional instead?
The question arises because of the historic reliance on London for similar applications and because there are mixed messages across the literature available (including, in my view, in the White Book) regarding whether one can, or cannot, make an application to extend time under 859F outside of London.
In that regard, the author of this note wishes to highlight that he recently, and successfully, brought a section 859F application to extend time in Bristol and further, that he has heard, anecdotally, of others doing the same. That being so, it would seem that it is acceptable to bring such applications outside of London, both in Bristol and (I assume) in other regional centres. Knowing this has the potential to save solicitors both costs and hassle, and, more generally, it speaks to the increasing march towards regionalisation in the courts.
20th April 2019
View profile: Adam Boyle