PRACTICE DIRECTION 49A – APPLICATIONS UNDER THE COMPANIES ACTS AND RELATED LEGISLATION
This Practice Direction supplements CPR Part 49
Contents of this Practice Direction
Section I – General
Definitions
1 In this practice direction –
‘the 1985 Act’ means the Companies Act 19851;
‘the 2006 Act’ means the Companies Act 20062;
‘the CJPA’ means the Criminal Justice and Police Act 20013;
‘Part VII FSMA’ means Part VII of the Financial Services and Markets Act 20005;
Application of this practice direction
2 This practice direction applies to proceedings under –
(b) the 2006 Act (except proceedings under Chapter 1 of Part 11 or Part 30 of that Act);
(f) Omitted
(Part 19 and Practice Direction 19C contain provisions about proceedings under Chapter 1 of Part 11 of the 2006 Act (derivative claims).
Application of this practice direction to certain proceedings in relation to limited liability partnerships
3 This practice direction applies to proceedings under the 1985 Act and 2006 Act as applied to limited liability partnerships by regulations made under the Limited Liability Partnerships Act 2000.
Title of documents
(1) The claim form in proceedings under the 1985 Act, the 2006 Act, Part VII FSA and any application, affidavit, witness statement, notice or other document in such proceedings, must be entitled ‘In the matter of [the name of the company in question] and in the matter of [the relevant law]’, where ‘[the relevant law]’ means ‘the Companies Act 1985’, ‘the Companies Act 2006’, ‘Part VII of the Financial Services and Markets Act 2000’, as the case may be.
(2) Where a company changes its name in the course of proceedings, the title must be altered by –
(a) substituting the new name for the old; and
(b) inserting the old name in brackets at the end of the title.
Starting proceedings and notification of application made
(1) Proceedings to which this practice direction applies may be started by a Part 7 or a Part 8 claim form, as appropriate –
(a) unless a provision of this or another practice direction provides otherwise, but
(b) subject to any modification of that procedure by this or any other practice direction.
(a) will, where issued in the High Court, be issued out of the Companies Court or a Chancery district registry; or
(b) will, where issued in a County Court hearing centre, be issued out of a county court office.
(3) Where this practice direction requires a party to proceedings to notify another person of an application, such notification must, unless the court orders otherwise, be given by sending to that other person a copy of the claim form as soon as reasonably practicable after the claim form has been issued.
Section II – Particular applications under the 2006 Act
References to provisions of the 2006 Act in this Section
6 In this Section, a reference to a section by number, not otherwise identified, is to the section so numbered in the 2006 Act.
Company generally to be made a party to a claim under the 2006 Act
(1) Where in a claim under the 2006 Act the company concerned is not the claimant, the company is to be made a defendant to the claim unless –
(a) any other enactment, the CPR or this or another practice direction makes a different provision; or
(b) the court orders otherwise.
(2) Where an application is made in the course of proceedings to which the company is or is required to be a defendant, the company must be made a respondent to the application unless –
(a) any other enactment, the CPR or this or another practice direction makes a different provision; or
(b) the court orders otherwise.
Applications under section 169 (Director’s right to protest against removal)
(1) This paragraph applies to an application for an order under section 169(5).
(2) The claimant must notify the director concerned of the application.
Applications under section 244 (Disclosure under court order of protected information)
(1) This paragraph applies to an application for an order under section 244.
(2) The claimant must notify the director concerned of the application.
Applications under section 295 (Application not to circulate members’ statement) or section 317 (Application not to circulate members’ statement)
(1) This paragraph applies to an application for an order under section 295 or 317.
(2) The claimant must notify each member who requested the circulation of the relevant statement of the application.
Proceedings under section 370 (Unauthorised donations – enforcement of directors’ liabilities by shareholder action)
11 Proceedings to enforce a director’s liability under section 370 must be started by a Part 7 claim form.
Proceedings under section 456 (Application in respect of defective accounts or directors’ report)
(1) This paragraph applies to an application for a declaration under section 456(1).
(2) The claimant must notify any former director who was a director at the time of the approval of the annual accounts or directors’ report of the application.
Proceedings under section 511, 514, 515 or 518 (Representations or statements made by the auditor)
(1) This paragraph applies to an application for an order under section 511(6), 514(7), 515(7) or 518(9).
(2) The claimant must notify the auditor of the application.
Proceedings under section 527 (Members’ powers to require website publication of audit concerns)
(1) This paragraph applies to an application for an order under section 527(5)
(2) The claimant must, unless the court orders otherwise, notify each member who requested a statement to be placed on the website of the application.
Proceedings under Parts 26 and 27 of the 2006 Act (Applications to sanction a compromise or arrangement)
(1) This paragraph applies to an application for an order under Parts 26 and 27 of the 2006 Act to sanction a compromise or arrangement.
(2) Where the application is made by the company concerned, or by a liquidator or administrator of the company, there need be no defendant to the claim unless the court so orders.
(3) The claim form must be supported by written evidence, including –
(a) statutory information about the company; and
(b) the terms of the proposed compromise or arrangement.
(4) The claim form must seek –
(a) directions for convening a meeting of creditors or members or both, as the case requires;
(b) the sanction of the court to the compromise or arrangement, if it is approved at the meeting or meetings, and a direction for a further hearing for that purpose; and
(c) a direction that the claimant files a copy of a report to the court by the chairman of the meeting or of each meeting.
Proceedings under section 955 (Takeovers – enforcement by the court)
16 Proceedings for an order under section 955 must be started by a Part 7 claim form.
Proceedings under section 968 (Takeovers – effect on contractual restrictions)
17 Proceedings to recover compensation under section 968(6) must be started by a Part 7 claim form.
Applications under section 1132 (Production and inspection of documents where offence suspected)
(a) This paragraph applies to an application for an order under section 1132.
(b) No notice need be given to any person against whom the order is sought.
Section III – Other applications
Applications under section 59 of the CJPA
26.
(1) In sub-paragraphs (2) to (8) –
(a) a reference to a section by number, not otherwise identified, is a reference to the section so numbered in the CJPA; and
(b) references to a relevant interest in property have the same meaning as in section 59 of the CJPA.
(2) This paragraph applies to applications under section 59 in respect of property seized in exercise of the power conferred by section 448(3) of the 1985 Act (including any additional powers of seizure conferred by section 50 that are exercisable by reference to that power).
(3) The application must be supported by evidence –
(a) that the claimant has a relevant interest in the property to which the application relates; and
(b) in the case of an application under section 59(2), that one or more of the grounds set out in section 59(3) is satisfied in relation to the property.
(4) Where the claimant has a relevant interest in the property, the defendants to the claim are to be –
(a) the person in possession of the property; and
(b) any other person who appears to have a relevant interest in the property.
(5) Where the claimant is in possession of the property, the defendants are to be –
(a) the person from whom the property was seized; and
(b) any other person who appears to have a relevant interest in the property.
(6) In the case of an application for the return of seized property, the claimant must serve a copy of the claim form and the claimant’s evidence in support of it on the person specified, by the notice given under section 52 when the property was seized, as the person to whom notice of such an application should be given.
(7) If the claimant knows the identity of the person who seized the property, the claimant must also notify that person of the application.
(8) When the court issues the claim form it will fix a date for the hearing.
Section IV – Conduct of proceedings
Reduction of capital – evidence
27.
In the case of an application to confirm a reduction in capital, if any shares were issued otherwise than for cash –
(a) for any shares so issued on or after 1st January 1901, it is sufficient to set out in the application the extent to which the shares are, or are treated as being, paid up; and
(b) for any shares so issued between 1st September 1867 and 31st December 1900, the application must also show that the requirement as to the filing of the relevant contract with the Registrar of Joint Stock Companies in section 25 of the Companies Act 1867 was complied with.
Section V – Miscellaneous
Service of documents
28.
The parties are responsible for service of documents in proceedings to which this practice direction applies.
Transitional provisions
29.
A claim started, or an application made, before 1st October 2007 may be continued in accordance with the practice direction in force on 30th September 2007 as if it had not been revoked.
Footnotes
1. 1985 c. 6
2. 2006 c. 46
3. 2001 c. 16
4. OJ No. L294, 10.11.2001, p.1
5. 2000 c. 8
6. S.I. 2007/2974
