Leonora Malone: How a mistaken CRO filing can become a sensitive business issue

Leonora Malone: How a mistaken CRO filing can become a sensitive business issue

Leonora Malone

Leonora Malone, partner at Eugene F. Collins, highlights that the responsibility for filing accurate information to the CRO rests with the company and its officers.

All companies have obligations to file various statutory returns in the Companies Registration Office (CRO) from time to time but it is important to be careful when making a filing, particularly if it relates to financial statements.

Business obligations

It is the responsibility of a company and its officers to ensure that documents submitted to the CRO in accordance with the Companies Act 2014 are accurate and properly completed. The CRO may carry out some form of checks for certain types of documents, but this is not part of the CRO’s function.

Where a company files financial statements which do not comply with the 2014 Act, the Directors may prepare revised financial statements for that year under a provision introduced under Section 366 of the 2014 Act. However, this is not a way to correct a document that may have been filed in error but in itself does comply with the terms of the 2014 Act. Where a document filed is correct in itself there is no right to revise.

Mistaken Filing

In Wee Care Limited v Companies Registration Office [2020] IECA 266, the Court of Appeal recently addressed the question of whether the High Court can rectify incorrect filings made to the CRO.

In this case, a small company, had filed a set of full financial statements in error when it intended to file abridged financial statements. The company applied to the Court of Appeal and sought to reverse the High Court’s refusal to have the full financial statements replaced with abridged financial statements. The Court was asked to determine whether the High Court could order the Registrar to replace the full financial statements with abridged financial statements based on the provisions of 366 of the 2014 Act or because of an inherent jurisdiction which rested with the Court.

Key Points to note

  • Section 352 of the 2014 Act, which allows a company file abridged financial statements is a voluntary provision that permits a company to file a set of abridged financial statement instead of full financial statements.
  • As a small company has the option to file abridged financial statements or full financial statements, it is not an error to file full financial statements. In this case, the full financial statements that were filed were not defective so as to allow revision.
  • Section 366 allows directors to prepare revised statutory financial statements or a revised directors report as opposed to removing the incorrect financial information completely from the register.
  • As the company had the choice to file either full financial statements or abridged financial statements, then the filing of full financial statements which were filed in error did not make them “defective” and allow a revision within the provisions of section 366 of the 2014 Act.
  • When considering whether the courts have an inherent jurisdiction to rectify the register then, if there is such a jurisdiction to correct erroneous information, it is one to be used ‘sparingly’ and it is ‘limited to remedying manifest injustice’. But in this case, there was no error in the documents filed.
  • The Court found that the error in filing unnecessary additional information did not seriously or significantly prejudice the commercial interests of the company. There was no evidence that this information had been accessed and used to the competitive advantage of the company’s competitors. The company was unable to meet the threshold to justify intervention by the Court and it was unnecessary for the Court to rule definitively on the point of inherent jurisdiction.

Care required

  • This case confirms that the Court will only intervene in limited circumstances where inaccurate information has been filed in the CRO.
  • The responsibility for filing accurate information ultimately rests with the company and its agents.
  • Section 366 of the 2014 Act, is limited to defective issues in Financial Statements and does not rectify the filing of a document which is in itself correct, but filed in error.
  • A filing error of this nature can be a commercially sensitive issue for a business and in this case could not be rectified.
Leonora Malone: How a mistaken CRO filing can become a sensitive business issue

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