Filed or not filed: which articles are the true articles?
Sean Kelly Partner
If a company amends its articles of association by special resolution but subsequently files an incorrect version of the amended articles at Companies House, such failure on the part of the company does not affect the validity of the amended articles adopted by special resolution. This was the conclusion the High Court reached in Gunewardena v Conran Holdings Ltd [2016] EWHC 2983 (Ch).
Although this case involved the consideration of the provisions of the Companies Act 1985, it is believed that the principles are likely to be equally applicable to the equivalent provisions in the Companies Act 2006.
Under the relevant statutory provisions, namely section 21 of the Companies Act 2006, a company’s articles of association can be amended by special resolution. If the members of a company adopt new amended articles by special resolution, those articles become the new articles of the company and take effect immediately. Their status as articles does not depend on their registration at Companies House.
A company who has amended its articles must send to the registrar a copy of the articles as amended not later than 15 days after the amendment takes effect. Failure to do so amounts to a criminal offence committed by the company and every officer in default, punishable by a fine. It does not however affect their status as articles.
