Wednesday, August 23, 2017

“Delivery” of documents to Companies House

The vast majority of rules in the Insolvency (England and Wales) Rules 2016 (“the Rules”) relating to issuing notices and reports use the date of delivery as the key date, rather than as was the case under the 1986 Rules, the date of “sending” or issuing the document.  In this Blog Article we are just looking at delivery of documents to Companies House.  As you are aware, delivery can be done in any number of ways, as set out in Chapter 9 of the Rules (rules 1.40 to 1.50), including the use of websites and electronic delivery.  While Companies House are now accepting, and indeed encouraging, electronic filing for live companies they still require paper Forms for companies subject to insolvency proceedings.  Those paper Forms can be delivered to Companies House by hand, by DX, or by post. 

The Rules include provisions relating to “deemed delivery”, such that an IP can, for example, assume that a letter posted by 1st class post to a UK address is deemed delivered on the second business day after posting.  However, Companies House operate under the Companies Act 2006 and that contains specific provisions relating to what constitutes delivery of a document to Companies House.  Rule 1.36(2) of the Insolvency Rules says:

(2) However in respect of delivery of a document to the registrar of companies—

(a) subject to sub-paragraph (b) only the following rules in this Chapter apply: rules 1.42, 1.43 (delivery by document exchange), 1.44 and 1.52 (proof of delivery of documents);

(b) the registrar’s rules made under sections 1068 and 1117 of the Companies Act apply to determine the date when any document is received by the registrar of companies.

Companies House guidance rather helpfully says that a document is not delivered to the Registrar until the Registrar receives it, before going on to say that they treat a document as received when it has been successfully delivered (by hand, by post or by DX) to Companies House.  However, just ensuring that a document arrives at Companies House is not sufficient to constitute proper delivery of a document under section 1072 of the Companies Act 2006.  A properly delivered document is one that meets all the requirements of the Registrars’ rules and the legislation under which it is delivered, i.e. both the Insolvency legislation and the Companies Act.

So which provisions should you rely on to show when a document was delivered to Companies House?  We think that the safest approach is to use the Companies House provisions for delivery.  To show when the document was received, and therefore delivered, you should either send a copy letter with the document sent for filing, getting Companies House to stamp and return it to you, or use the “follow this company” option on the Companies House website so that you receive an email whenever a document is filed, using that as a trigger to check the date stamp on the document to see when it was received by Companies House.  The latter is the most reliable approach given that a document is only properly delivered once it has actually been accepted for filing.

We have already seen cases where documents have been delivered late, because, although sent on time, they were returned due to some fault in the document or the accompanying Form, so that by Companies House rules they were not received and therefore not properly delivered. In a perfect world you would submit every document correctly first time, but we recommend that you send documents well in advance of any deadline, just in case there is a defect and you have to re-submit them.