Thursday, August 02, 2012

Form 4.72

As you are aware, Companies House have now revised the Form 4.72 to reflect the 2010 Rules. Rule 12A.47(1)(d) requires you to include in Form 4.72 “if the meeting took place, the outcome of the meeting (including any resolutions passed at the meeting)” and the revised Form includes a prompt to provide that information. But the eagle-eyed amongst you will have noted that there are two meetings, one for members and one for creditors, but the form only asks for the outcome of one. So, what information should you record as to the outcome of “the meeting”?

Before answering that question, a bit of background. Whilst Companies House have responsibility for the structure and format of most of the insolvency forms you have to file at Companies House, including the Form 4.72, the responsibility for prescribing the technical content still lies with the Insolvency Service who tell Companies House what the Forms should contain. In addition, Companies House are just a register and so do not actually check the content of the Forms that are lodged, just that they have been fully completed, leaving it for the regulators to check to ensure that IPs comply with the insolvency legislation as regards content.

As a result, Companies House do not monitor what information you record in the Form 4.72. All they require is for something to be recorded against each prompt in the Form, including the outcome of the meetings. So back to my original question; what information should you record as to the outcome of “the meeting”?

We think that common sense has to prevail and you have to report on both meetings, although it could be argued that because only the creditors’ meeting can vote against release you need only report on the outcome of the creditors’ meeting. If one or both of the meetings is quorate, we think that you should record the outcome of the meeting(s) as being that “the following resolutions were passed”, and then listing separately those passed at each meeting if both meetings were quorate. We suggest that you take a resolution at the final meeting of creditors as to the liquidator’s release in order to give creditors the opportunity to vote against release given that it is automatic, unless they specifically vote against it. If you take such a resolution, then you will deal with release when setting out the resolutions passed at the meeting of creditors. If, however, you do not take such a resolution then we think that you should also comment on release as part of the outcome of the final meeting of creditors in the Form 4.72, e.g. that the creditors did not vote against the liquidator’s release.

For inquorate meetings it does not matter whether you indicate in the Form that the meeting was “summoned” or “held” as long as you make it clear in the outcome that nobody voted against the liquidator’s release.