Section 859(a) Companies Act 2006 provides that a charge created by a Company is required to be to be registered within 21 days (or section 873 if the charge was created prior to 6 April 2013), although this has temporarily been extended to within 31 days as per part 2 of section 18(1) of The Companies etc. (Filing Requirements) (Temporary Modifications) Regulations 2020, to secure the lender’s interests and to ensure that it is binding.
While the limit is a statutory one, it is not an absolute limit which brings to fruition the end of all things as one may presume from the fact that it comes from written statute. The legislation does provide for eventualities when this registration does not occur and has, in it, incorporated mechanisms to correct it. If the court is satisfied, on application, that the failure to submit within the timeline was accidental or due to inadvertence or to some other sufficient cause or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief then, an extension will be granted. (S859F of Companies Act 2006).
In the time between the expiry of the allowed period and the granting of the extension upon application, there are consequences that cannot be overlooked as per their severity as they bring with it possible fallout to the lender, the client and the solicitor.
The biggest consequence to the lender is effective exposure, as the charge is now void against any liquidator, administrator, and any creditor of the company.
For the mortgagor, the problem posed is that according to s859H of the Companies House Act 2006, when this security has become void, then the money secured by it immediately becomes payable. If the mortgage was given in exchange for funds, these are not likely to be readily available which will inevitably impact on the company’s cashflow if not its liquidity and therefore possibly impact its survival.
The consequences above will surely take a more serious tone if the company becomes insolvent. The lender will not have potential but effective and real exposure and would doubtlessly now look to reclaim the totality of the loan on a void charge with its accompanying enforceability issues.
Lastly, the possible consequences on the solicitor, especially if some form of rectification is not possible or there is an issue with the solvency of the company, become a very serious outcome of a seemingly simple procedure faux pas. There is nothing commonplace about this failure, as in acting for the lender, the solicitor has failed to not only represent their client’s best interests and potentially be in breach of the SRA regulatory principles but the solicitor has effectively failed to secure their assets which is an demonstrable regulatory conduct violation with the potential result to the solicitor being one of a catastrophic nature.