The Gazette 1984

GAZETTE

JANUARY/ FEBRUARY 1984

at the same time as the abolition of the 'exempt private company' so that all private companies had to file annual accounts with the Companies Office in the U.K., many small private companies re-registered as unlimited so as to avoid these provisions. Given that personal guarantees were, and still are, required from proprietors of small limited companies from lenders or large suppliers, the benefits of limited liability were largely illusory. It remains to be seen whether or not any number of companies will make use of this provision in the face of the other provisions of this Act and of the (hopefully) imminent legislation implementing the Fourth Company Law Directive of the E.E.C. (which will introduce into this country a requirement for private companies to file annual accounts). Re-registration must be applied for on the appropriate form (Form 84) signed by a director or the secretary and accompanied by: (a) Memo r a ndum and Articles of Association, amended as appropriate, depending on whether the company has registered Articles previously (as opposed to simply having adopted, or relying upon the deemed application of, Table A) and is or is not to have a share capital; (b) Form 85, containing a form of assent to the re-regis- tration by or on behalf of all members; (c) a Statutory declaration made by the directors to the effect that the persons by whom or on whose behalf the Form 85 assent is subscribed constitute the whole of the membership, and, that the directors have taken all reasonable steps to satisfy themselves that any person subscribing on behalf of a member was legally empowered to do so.

Re-registration takes place when the Registrar issues a Certificate of Incorporation appropriate to the status being assumed by the company. Such certificate is, again, conclusive evidence that all requirements have been complied with. Past members of a company which has re-registered under Section 52 will not have to contribute, on a winding-up, more than they would have been liable to do so if the company had not re-registered, unless, of course, they become members again at some time after re- registration. Section 53 introduces a new procedure, replacing the provisions of Section 20 of the 1963 Act, whereby an unlimited company may re-register as a limited company. Section 53(7)(a) provides that, notwithstanding Section 207(I)(a) of the 1963 Act (which provides that a past member of a company shall not be liable to contribute any assets to a company in a winding-up if he has ceased to be a member for one year or more before the commencement of the winding-up) a past member of an unlimited company who was a member on re-registration of that company as limited, will be liable to contribute without limit to the assets of a company in respect of its debts and liabilities contracted before that time if the winding-up commences within three years of re-registration. Section 207(I)(c) of the 1963 Act provides that no past member is liable to contribute unless it appears to the Court, on an application in this regard by a liquidator, that the existing members are unable to satisfy the contributions required. Section 53(7)(b) of the 1983 Act, however, provides that notwithstanding that sub-section (but subject to Section 53(7)(a)) where no persons who were members of the company on re-registration are existing members at the commencement of a winding-up), any person who on re-registration was a present or past member is liable to contribute without limit despite the fact the existing members have fully contributed as required by law. Miscellaneous Part VI of the Act contains miscellaneous provisions. The most important is that in Section 56, which makes it an offence for a person who is not a public limited company (or an old public company after the end of the general transitional period) who carries on a trade, profession or business using a name having as its last part! either in full or abbreviated form, "p.I.e." or "c.p.t.". There are transitional provisions, however, whereby an old public company, having applied for re-registration under Section 12, may use either "limited" or "p.l.c." (in any of their forms) on its Common Seal and letterheads for a period of twelve months after re-registration and may, for a period of three years thereafter, use either form on its premises. The penal provisions do not apply to external companies to which Part XI of the 1963 Act applies and which would be entitled to register as a p.l.c. if registered in the State. Section 58 provides that a public limited company may no longer apply, under Section 24 of the 1963 Act, for a licence to dispense with 'limited' in its name. Any existing Section 14 licence shall cease to apply on re-registration. Careful reference should also be made to the First and Third Schedule to the Act which make amendments or modifications to the 1963 Act, only the most important of which have been referred to in these Articles. • 23

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