TAKE NOTICE, of section 212, or is it 793?

Corporate Blawg promised that he would pay more attention to recent newbies from the Company Act 2006.  SO TAKE NOTICE!
                 The first newbie is the new provision that public companies can serve (what used to be) section 212 Notices by electronic communications.  These new provisions are set out in sections 791-810, 811(1)-(3), 813 and 815-828 (information about interests in a company's shares).  Most importantly a section 212 notice will now become a section 793 notice.  No room for confusion there.
          Besides some finer details of company procedure (how information is entered on the register when the name of the present holder of the shares is not known - section 808; the requirement for a company to keep information on the register in relation to notices issued more than 6 years previously - section 816, and removing the requirement on the company to verify third party information supplied in response to a section 793 notice before putting it on the register - section 817), this provisions allow for notices to be given in electronic form, (section 793 in conjunction with Part 37 on the sending or supplying of documents or information). 
          But why should such a notice be sent in the first place?
          The purpose of a section 793 notice will be to establish who has control over the votes represented by the shares.  Once control is established, the company may apply to the court for various restrictions over those shares, under section 454 of the Companies Act 1985, i.e. any direction in relation to:

• transfer of those shares
• restriction on voting rights in relation to those shares
• issued of further shares in pre-emption right of them.

In fact, section 454 can also be used to prevent the holder receiving any dividends, and enables a company to see who is "friendly" in advance of a bid! Now you see why its so important. 
               The key case which enhances, yes enhances, the statute is that of In re Lonrho plc (1988) Times, 16 November, where the court foud that one and a half working days was an unreasonable time for a foreign recipient to have to comply with a notice under section 212.  The court stated that two full working days would probably have been a reasonable, and that five days was two long.   
               Such detailed and subjective proselytising over tiny differences in time limits, seems like bolllocks to me.
               The case went on to rightly suggest that foreign investors on the London Sock Exchange had to be prepared to comply with both the Companies Acts and the Sock Exchange regulations.  It is interesting that Lord Irvine is recorded as being hesitant to state that one and a half days was unreasonable.  This must be because what had been deemed a non-working day had been a Jewish holiday, but working day for everybody else.  The danger is that religious holidays might have to be provided for as non-business days, which would turn all statutory timings upside down.  How would we cope?  However, you have to admire Lord Irvine's sensitivity in this matter, and he clearly felt that the serving party did or should have known that such a day would not be a working day for the recipient of the notice, and that the serving party should have taken that information into account before applying to the court for s.454 restrictions.
           So, in sum, now these notices can be served electronically.  If you've put a lien on your shares without authority, or given someone else any rights without telling the company, keep checking those emails...

Comments

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