Companies (Amendment No. 3) (Jersey) Law 1997

Jersey Law 30/1997

 

COMPANIES (AMENDMENT No. 3) (JERSEY) LAW 1997

____________

A LAW     to amend further the Companies (Jersey) Law 1991, sanctioned by Order of the Counsellors of State in Council of the

 

26th day of june 1997

____________

 

(Registered on the 18th day of July 1997)

____________

 

STATES OF JERSEY

____________

 

The 18th day of March 1997

____________

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

ARTICLE 1

(1)           In paragraph (1) of Article 1 of the Companies (Jersey) Law 1991,1 as amended2 (hereinafter referred to as “the principal Law”), after the definition of “liabilities” there shall be inserted the following definition –

“ ‘limited life company’ has the meaning assigned to it by Article 5B;”.

(2)           After paragraph (2) of Article 1 of the principal Law there shall be inserted the following paragraph –

“(2A)    In Articles 5B, 144 and 144A, ‘a fixed period of time’ means a period of time that is ascertainable without reference to any event that is –

(a)     contingent; or

(b)     otherwise uncertain.”.

ARTICLE 2

Sub-paragraph (d) of paragraph (1) of Article 4 of the principal Law shall be deleted.

ARTICLE 3

After Article 5 of the principal Law there shall be inserted the following Articles –

“ARTICLE 5A

Companies of limited duration

Where a company is to be wound up and dissolved upon –

(a)     the expiration of a period of time; or

(b)     the happening of some other event,

that period or event shall be specified in the memorandum or the articles of the company.

ARTICLE 5B

Limited life company

(1)          A company whose memorandum includes or whose articles include a provision that the company shall be wound up and dissolved upon –

(a)     the bankruptcy, death, expulsion, insanity, resignation or retirement of any member of the company; or

(b)     the happening of some other event that is not the expiration of a fixed period of time,

is a limited life company.

(2)          A limited life company may include in its memorandum or articles a provision for its winding up and dissolution on the expiration of a fixed period of time.”.

ARTICLE 4

For Article 11 of the principal Law there shall be substituted the following Article –

“ARTICLE 11

Alteration of memorandum and articles

(1)          Subject to the provisions of this Law, a company may by special resolution alter its memorandum or articles.

(2)          An alteration in the memorandum or articles of a company –

(a)     may provide that upon –

(i)         the expiration of a period of time; or

(ii)        the happening of some other event,

the company is to be wound up and dissolved; or

(b)     may amend or delete any such provision.

(3)          Notwithstanding anything in the memorandum or articles, a member of a company is not bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration –

(a)     requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made; or

(b)     in any way increases his liability as at that date to contribute to the company’s share capital or otherwise to pay money to the company,

unless he agrees in writing, either before or after the alteration is made, to be bound by it.

(4)          The power to alter the memorandum or articles conferred by this Article shall not be exercisable by an existing company –

(a)     so as to shorten a period of time by which the company’s existence is limited, or to provide for its winding up and dissolution on the happening of an event other than the expiration of a period of time; or

(b)     so as to alter rights attached to a class of shares which cannot be altered under the Laws repealed by Article 223,

unless the alteration is agreed to by all of the members or approved by the court.”.

ARTICLE 5

For the heading of Chapter 1 of Part XXI of the principal Law and Article 144 of the principal Law there shall be substituted the following heading and Articles –

 

“Chapter 1 – Winding up of companies of limited duration

ARTICLE 144

Procedure – winding up of limited life companies

(1)          Where a limited life company is to be wound up and dissolved upon –

(a)     the expiration of a fixed period of time; or

(b)     the happening of some other event,

specified in its memorandum or articles, and the period expires or the other event happens, the company shall thereupon be deemed to pass a special resolution for its winding up summarily.

(2)          Within 21 days thereafter, a notice of the resolution so deemed to be passed shall be delivered to the registrar.

(3)          If a statement of solvency is made in accordance with paragraph (2) of Article 146 within 28 days after the event referred to in paragraph (1), and is delivered to the registrar within 21 days after it is made, the limited life company shall continue to be wound up summarily in accordance with Chapter 2 of this Part.

(4)          If a statement of solvency is not delivered to the registrar in accordance with paragraph (3), the limited life company shall be wound up in a creditors’ winding up in accordance with Chapter 4 of this Part and for that purpose Article 151 shall apply as though the opinion referred to in that Article had been recorded at the expiration of 28 days after the happening of the event referred to in paragraph (1).

ARTICLE 144A

Procedure – winding up of other companies of limited duration

(1)          Where a company (other than a limited life company) is to be wound up and dissolved upon the expiration of a fixed period of time specified in its memorandum or articles, and the period expires, the company shall deliver to the registrar within 21 days after that period has expired a notice stating –

(a)     that the period has expired; and

(b)     the date of expiration.

(2)          If a company fails to comply with paragraph (1), any director, member or creditor of the company may, at any time after the expiration of the period of 21 days referred to in paragraph (1), deliver such a notice to the registrar.

(3)          Where a notice is delivered to the registrar in accordance with paragraph (2), the director, member or creditor shall at the same time deliver a copy of the notice to the company.

(4)          If a statement of solvency in accordance with paragraph (2) of Article 146 –

(a)     has been made within 28 days before and is delivered to the registrar with a notice delivered in accordance with paragraph (1); or

(b)     has been made and is delivered to the registrar within 28 days after a notice is delivered in accordance with paragraph (2),

the company shall be wound up summarily in accordance with Chapter 2 of this Part.

(5)          If, notice having been delivered in accordance with paragraph (1) or paragraph (2), a statement of solvency is not made and delivered to the registrar as provided in paragraph (4), the company shall be wound up in a creditors’ winding up in accordance with Chapter 4 of this Part and for that purpose the company shall be deemed to pass a resolution for a creditors’ winding up –

(a)     where notice is delivered in accordance with paragraph (1), upon delivery of the notice to the registrar; and

(b)     where notice is delivered in accordance with paragraph (2), upon the expiration of 28 days after the copy of the notice is delivered to the company.”.

ARTICLE 6

(1)           For paragraph (1) of Article 146 of the principal Law there shall be substituted the following paragraph –

“(1)        A company may be wound up under this Chapter –

(a)     in accordance with Article 144;

(b)     in accordance with Article 144A; or

(c)     in the following manner, namely –

(i)      by making a statement of solvency in accordance with paragraph (2);

(ii)     by passing, within 28 days after the statement has been signed by each of the directors of the company, a special resolution that the company be wound up summarily; and

(iii)    by delivering to the registrar, within 21 days after the resolution has been passed, a copy of it in accordance with Article 100 together with the statement.”.

(2)           Paragraph (3) of Article 146 of the principal Law shall be deleted.

ARTICLE 7

For Article 147 of the principal Law there shall be substituted the following Article –

“ARTICLE 147

Commencement of summary winding up

A summary winding up under which assets of a company are to be distributed commences –

(a)     where a limited life company has under paragraph (1) of Article 144 been deemed to pass a special resolution for winding up, upon its being deemed to have done so;

(b)     where a company (other than a limited life company) whose existence is limited by a period of time is wound up pursuant to Article 144A, upon the delivery to the registrar of a notice in accordance with either of paragraphs (1) and (2) of that Article and the statement of solvency under Article 146; and

(c)     in any other case, on the passing of the special resolution for summary winding up.”.

ARTICLE 8

In paragraph (1) of Article 149 of the principal Law, for the words “The company, at the meeting at which the resolution for summary winding up is passed, or at any subsequent meeting,” there shall be substituted the words “On or after the date of commencement of a summary winding up of a company, it”.

ARTICLE 9

After Article 154 of the principal Law, but before Chapter 3 of Part XXI of the principal Law, there shall be inserted the following Article –

“ARTICLE 154A

Termination of summary winding up

(1)          Where –

(a)     the summary winding up of a company has commenced;

(b)     the company has not received any contribution from any present or past member pursuant to Article 192;

(c)     the company has not for the purposes of the winding up distributed any of its assets among its members;

(d)     the company is able to discharge its liabilities as they fall due; and

(e)     termination of the winding up has been approved by a special resolution of the company,

the documents described in paragraph (2) of this Article may be delivered to the registrar and thereupon the winding up shall forthwith terminate.

(2)          The documents to be delivered to the registrar pursuant to paragraph (1) are –

(a)     a certificate signed by all the directors of the company stating that the company –

(i)      has received no such contribution;

(ii)     has made no such distribution; and

(iii)    is able to discharge its liabilities as they fall due; and

(b)     a copy of the special resolution approving the termination of the winding up.

(3)          Upon the termination of a winding up pursuant to paragraph (1) –

(a)     any liquidator appointed for the purpose of the winding up shall cease to hold office; and

(b)     the company and all other persons shall be in the same position, subject to paragraph (4), as if the winding up had not commenced.

(4)          The termination of a winding up pursuant to paragraph (1) shall not affect the validity of anything duly done by any liquidator, director or other person, or by operation of law, before its termination.

(5)          A director who signs a certificate delivered to the registrar pursuant to paragraph (1) without having reasonable grounds for believing that the statements in it are true is guilty of an offence.”.

ARTICLE 10

For Article 202 of the principal Law there shall be substituted the following Articles –

“ARTICLE 201A

Keeping of records by registrar

(1)          The information that is contained in a document delivered to the registrar under this Law or to the Judicial Greffier under the Laws repealed by Article 223 and kept by the registrar may be recorded and kept by the registrar in any form –

(a)     which is approved by the Committee;

(b)     which is capable of being inspected; and

(c)     of which a copy can be produced in legible form.

(2)          The keeping by the registrar of a record of a document in accordance with paragraph (1) shall be sufficient compliance with any duty that he has to keep the document.

ARTICLE 202

Inspection and production of records kept by registrar

(1)          A person may inspect a record kept by the registrar.

(2)          A person may require –

(a)     a certificate of the incorporation of a company; or

(b)     a certified or uncertified copy of a record, kept by the registrar, which the person is entitled to inspect or of any part of such a record.

(3)          A certificate given under paragraph (2) shall be signed by the registrar and sealed with his seal.

(4)          A copy, certified in writing by the registrar in the manner described in paragraph (3) to be an accurate copy –

(a)     of a record kept by the registrar; or

(b)     of any part of such a record,

shall be admissible in evidence in all legal proceedings as of equal validity with the original record and as evidence of any fact stated in it of which direct oral evidence would be admissible.

(5)          Where a document purports on its face to be a copy of a record or part of a record, certified in either case in accordance with paragraphs (3) and (4), it shall be unnecessary for the purposes of paragraph (4) to prove the official position or handwriting of the registrar.

(6)          The rights conferred by paragraphs (1) and (2) are subject to the following limitations –

(a)     the right of inspection does not extend to an original document of which a record is kept in accordance with paragraph (1) of Article 201A;

(b)     in relation to documents delivered to the registrar with a prospectus pursuant to a requirement of an Order made under Article 29, the rights shall be exercisable only during the period or with the permission specified in the Order; and

(c)     the rights conferred by paragraph (2) are subject to paragraph (3) of Article 71.”.

ARTICLE 11

For Article 204 of the principal Law there shall be substituted the following Article –

“ARTICLE 204

Destruction of records

The registrar may destroy any record kept by him –

(a)     where it is an original document and the registrar has recorded and kept the information in it in accordance with paragraph (1) of Article 201A;

(b)     where it has been kept for over 10 years and is or was comprised in or annexed or attached to the accounts or annual returns of a company; or

(c)     where it relates only to a company that has been dissolved (whether under this Law or otherwise) more than 10 years previously.”.

ARTICLE 12

After Article 205 of the principal Law, but before Part XXIV of the principal Law, there shall be inserted the following Article –

“ARTICLE 205A

Registrar may strike company off register at end of duration

(1)          Where in the case of a company (other than a limited life company) –

(a)     its memorandum specifies or its articles specify a period of time for the duration of the company;

(b)     that period has expired; and

(c)     a notice in accordance with either of paragraphs (1) and (2) of Article 144A has not been delivered to the registrar,

the registrar may proceed in accordance with paragraph (2).

(2)          Where the registrar is entitled to proceed in accordance with this paragraph, he may publish in the Jersey Gazette, and send to the company by post, a notice that at the end of three months from the date of that notice the name of the company mentioned in it will, unless reason is shown to the contrary, be struck off the register and the company will be dissolved.

(3)          At the end of the period mentioned in the notice the registrar may, unless reason to the contrary is previously shown by the company or a member, creditor or liquidator of it, strike its name off the register, and shall publish notice of this in the Jersey Gazette; and on the striking off the company is dissolved; but the liability (if any) of every director and member of the company continues and may be enforced as if the company had not been dissolved.”.

ARTICLE 13

For Article 215 of the principal Law there shall be substituted the following Article –

“ARTICLE 215

Punishment of offences

(1)          The First Schedule has effect with respect to the way in which offences under this Law are punishable on conviction.

(2)          In relation to an offence under a provision of this Law specified in the first column of the First Schedule (the general nature of the offence being described in the second column) –

(a)     the corresponding entry in the third column shows the maximum punishment by way of fine or imprisonment under this Law that may be imposed on a person convicted of the offence;

(b)     the corresponding entry (if any) in the fourth column shows that a person convicted of the offence is also liable to a daily default fine;

(c)     a reference in the third column to a period of years or months is a reference to a term of imprisonment of that duration; and

(d)     a reference in the third or fourth column to a level is a reference to a fine of that level on the standard scale.3

(3)          In sub-paragraph (b) of paragraph (2), liability to a daily default fine means that if –

(a)     a person has been convicted of the offence;

(b)     he is convicted of having again committed that offence; and

(c)     on that subsequent occasion the contravention has continued for more than one day,

then in addition to his liability to a fine under sub-paragraph (a) of paragraph (2) on conviction in respect of that subsequent offence, he is liable to the fine specified in the fourth column of the First Schedule for each day (other than the first day) on which the subsequent offence is proved to have continued.

(4)          For the purposes of any Article of this Law where under or pursuant to this Law an officer of a company or other body corporate who is in default is guilty of an offence, the expression ‘officer in default’ means any officer of the company or body corporate who knowingly and wilfully authorizes or permits the default, refusal or contravention mentioned in the Article.”.

ARTICLE 14

For the First Schedule to the principal Law there shall be substituted the Schedule so numbered and set forth in the Schedule to this Law.

ARTICLE 15

This Law may be cited as the Companies (Amendment No. 3) (Jersey) Law 1997 and shall come into force on the fourteenth day following its registration.

 

C.M. NEWCOMBE

 

Deputy Greffier of the States.


SCHEDULE

(Article 14)

“FIRST SCHEDULE

(Article 215)

Punishment of offences

 

Article of Law creating offence

General nature of offence

 

Punish-ment

Daily default fine (where applic-able)

12(2)

Company failing to send to one of its members a copy of its memorandum or articles, when so required by the member

 

Level 3

 

14(4)

Company failing to deliver to Judicial Greffier copy of altered certificate of incorporation following change of name

 

Level 3

Level 2

15(5)

Company failing to change name on direction of registrar

 

Level 3

Level 2

17(4)

Private company failing to deliver to registrar Act of the court relieving company from consequences of increasing the number of its members beyond 30

 

Level 3

Level 2

17(4)

Company failing to deliver to registrar copy of direction by Committee modifying Article 17(1) in its application to the company

 

Level 3

Level 2

17(5)

Private company issuing a prospectus

 

2 years or a fine; or both

 

22(1)

Company failing to have its name engraved on company seal

 

Level 3

 

22(2)

Officer of company etc. using company seal without name engraved on it

 

Level 3

 

29(3)

Failure to comply with Order of the Committee prohibiting the circulation of a prospectus in the Island or the circulation of a prospectus in the Island or elsewhere by a company

 

2 years or a fine; or both

 

33

Circulation of a prospectus with a material statement in it which is untrue or misleading or with the omission from it of the statement of a material fact

 

10 years or a fine; or both

 

36(2)

Public company failing to deliver to registrar statement disclosing the amount or rate per cent of share commission

 

Level 3

Level 2

41(3)

Company failing to keep a register of members

 

Level 4

Level 2

44(4)

Company failing to give notice to registrar as to place where register of members is kept

 

Level 4

Level 2

45(3)

Refusal of inspection of members’ register; failure to send copy on requisition

 

Level 4

 

46(3)

Misuse of information obtained from members’ register

 

A fine

 

47(4)

Company failing to deliver to registrar Act of court ordering rectification of register of members

 

Level 3

Level 2

50(5)

Company default in compliance with Article 50(1) (certificates to be made ready following allotment or transfer of shares)

 

Level 3

Level 2

53(5)

Company failing to deliver to registrar Act of court when application made to cancel resolution varying shareholders rights

 

Level 3

Level 2

54(5)

Company failing to deliver to registrar statement or notice required by Article 54 (particulars of shares carrying special rights)

 

Level 3

Level 2

58(5)

Company giving financial assistance towards acquisition of its own shares in contravention of Article 58

 

A fine

 

58(5)

Officer of company contravening Article 58

 

2 years or a fine; or both

 

66

Officer of company concealing name of creditor entitled to object to reduction of capital, or wilfully misrepresenting nature or amount of debt or claim, etc.

 

2 years or a fine; or both

 

68(2)

Company failing to display name outside registered office

 

Level 3

Level 2

69(2)

Company failing to have name on business correspondence, invoices, etc.

 

Level 3

 

70(3)

Company failing to comply with Article 70(1) or (2) (matters to be stated on business correspondence, etc.)

 

Level 3

 

78(4)

Person acting in contravention of disqualification order

 

2 years or a fine; or both

 

83(4)

Default in complying with Article 83 (keeping register of directors and secretaries; refusal of inspection)

 

Level 3

Level 2

87(8)

Company default in holding annual general meeting

 

Level 4

 

88(3)

Company default in complying with Committee’s direction to hold company meeting

 

A fine

 

88(5)

Company failing to register resolution that meeting held under Article 88 is to be its annual general meeting

 

Level 3

Level 2

96(3)

Failure to give notice, to member entitled to vote at company meeting, that he may do so by proxy

 

Level 3

 

96(5)

Officer of company authorizing or permitting issue of irregular invitations to appoint proxies

 

A fine

 

98(4)

Company failing to keep minutes of proceedings at company and board meetings, etc.

 

Level 3

Level 2

99(3)

Refusal of inspection of minutes of general meeting; failure to send copy of minutes on member’s request

 

Level 3

 

100(5)

Company failing to include copy of resolution to which Article 100 applies with memorandum or articles; failing to forward copy to member on request

 

Level 3

 

105(2)

Company failing to supply copy of accounts to member on demand

 

Level 4

Level 2

107

Company failing to comply with Article 102 (keeping accounting records), 103 (retaining accounting records), 104 (preparing and laying accounts) or 106 (failing to deliver copy of accounts to registrar)

 

 

 

Level 4

For contra-vention of Article 106, Level 2

107

Officer of public company failing to comply with Article 102, 103, 104 or 106

 

2 years or a fine; or both

 

109(9)

Company failing to appoint auditors when required to do so

 

A fine

 

111(9)

Auditor ceasing to hold office failing to deposit statement as required by Article 111(7)

 

A fine

 

111(10)

Company failing to send notice of auditor’s resignation to members and to other persons entitled to receive notice of general meetings

 

A fine

 

112

Company officer or secretary making misleading, false or deceptive statement to auditors

 

5 years or a fine; or both

 

113(6)

Person acting as company auditor knowing himself to be disqualified; failing to give notice vacating office when he becomes disqualified

 

2 years or a fine; or both

 

117(6)

Offeror failing to send to company whose shares are the subject of the offer notice and declaration required by Article 117(4); making false declaration for purposes of Article 117(4)

 

2 years or a fine; or both

 

119(6)

Offeror failing to give minority shareholder notice of rights exercisable under Article 119(1) or (2)

 

A fine

 

125(4)

Company failing to annex Act of court to memorandum

 

Level 3

 

126(6)

Company failing to comply with requirements of Article 126 (information to members and creditors about compromise or arrangement)

 

Level 3

 

126(7)

Director or trustee for debenture holders failing to give notice to company of such matters relating to himself as are necessary for purposes of

 

A fine

 

127(4)

Company failing to deliver to registrar Act of court sanctioning compromise or arrangement

 

Level 3

Level 2

133

Obstruction of person acting in execution of search warrant issued under Article 132

 

2 years or a fine; or both

 

143(5)

Company failing to deliver to registrar Act of court altering, or giving leave to alter, company’s memorandum or articles following application by member or by Committee

 

Level 3

Level 2

151(7)

Director or liquidator failing to comply with obligations under Article 151 (company to discharge liabilities in full within six months of commencement of summary winding up); director or liquidator failing to preside at creditors’ meeting

 

A fine

 

151(8)

Director or liquidator of company in summary winding up making statement of solvency without having reasonable grounds for that opinion

 

2 years or a fine; or both

 

154A(5)

Director signing certificate for termination of summary winding up without having reasonable grounds for believing contents true

 

2 years or a fine; or both

 

155(5)

Company failing to deliver to registrar Act of court ordering company to be wound up on just and equitable grounds

 

Level 3

Level 2

158(2)

Company failing to advertise resolution for creditors’ winding up

 

Level 3

Level 2

160(3)

Company or director failing to comply with Article 160 in respect of calling or giving notice of creditors’ meeting; directors failing to attend and lay statement before creditors’ meeting

 

A fine

 

161(6)

Liquidator failing to give notice of appointment

 

Level 3

Level 2

164(3)

Directors exercising powers in breach of Article 164, where no liquidator

 

6 months or a fine; or both

 

168(2)

Liquidator failing to call company general meeting and creditors’ meeting at end of each year

 

Level 3

 

169(4)

Liquidator failing to give registrar notice of final meeting

 

Level 2

Level 1

169(7)

Failure to deliver to registrar Act of court deferring dissolution of company

 

Level 3

Level 2

169(8)

Liquidator failing to call final meeting of company or creditors

 

Level 3

 

174(4)

Failure to deliver to registrar Act of court staying proceedings in creditors’ winding up

 

Level 3

Level 2

183(4)

Failure to co-operate with liquidator

 

6 months or a fine; or both

 

188(3)

Person acting as liquidator when not qualified to do so

 

2 years or a fine; or both

 

189

Giving, offering, etc. corrupt inducement affecting appointment as liquidator

 

2 years or a fine; or both

 

190(2)

Liquidator failing to give notice of resignation, etc.

 

A fine

 

191(2)

Failing to state on correspondence, etc. that company is in liquidation

 

A fine

 

194(4)

Contravening a direction regarding destruction of records of company which has been wound up

 

Level 4

 

195(4)

Person passing off or representing external company as incorporated in the Island

 

A fine

 

206(2)

Company failing to take reasonable precautions to prevent loss or falsification of company records

 

Level 3

 

213(4)

Failing to deliver to registrar Act of the court declaring dissolution of company void

 

Level 3

Level 2

Second Schedule, paragraph 8(2)

Failure of existing company to notify registrar that it has more than 30 members

 

Level 3

Level 2

Second Schedule, paragraph 9(3)

Failure of existing company to notify registrar of address of registered office

 

Level 3

Level 2”.

 



1        Volume 1990–1991, page 888.

2        Volume 1992–1993, page 63, and Volume 1994–1995, page 351.

3        See Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993, Volume 1992-1993, page 437.


Page Last Updated: 27 Apr 2016