Court action - Howard Cohen

[apocalypsedreams]

On behalf of Companies House. POC:

1. The defendant is required pursuant to S441 (1) of the Companies Act 2006 (the Act) to deliver to the claimant a copy of its annual accounts for each financial year. Further, unless the defendant falls within the exemptions laid down in section 480(1) a director's report and auditor's report is required.

2. The defendant failed to deliver the documents specified in paragraph 1 hereof in accordance with the provisions of Section 442 of the Act and is therefore liable to a civil penalty pursuant to section 453 of the act as set out in SI 2008/497. Particulars of the penalties levied against the defendant are as follows:

Accts Date 30 SEP 10
Due Date 30 JUN 10
Filing Date 01 JUL 10
Penalty 150.00

3. There remains a balance of 150.00 due and owing and the claimant claims that sum.

S441 Duty to file accounts and reports with the registrarhttp://www.legislation.gov.uk/ukpga/2006/46/section/441
S442 Period allowed for filing accounts
Companies Act 2006
S453 Civil penalty for failure to file accounts and reports
Companies Act 2006
SI 2008/497 The Companies (Late Filing Penalties) and Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations 2008
The Companies (Late Filing Penalties) and Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations 2008

The company is small enough to be eligible for the small companies' exemption and abbreviated accounts. On point 1, the second sentence refers to dormant companies which is irrelevant in this case.

The company is very small, providing a very modest income for me. The penalty represents a week's wages for me. I just think that £150 for a day late is excessive. I accept that, having posted the documents (it cannot be done online) 2 days before the deadline by recorded 1st class post, there was always a risk of the mail service not delivering it on time. Next year I will send it a couple of weeks before the deadline.

[labman]

Re: Court action - Howard Cohen

Does the LoPA 1925 not state that a letter is deemed served or delivered two days after being posted first class? I'm sure it is stated somewhere.

[apocalypsedreams]

Re: Court action - Howard Cohen

Thanks for the pointer, anyone know which section of the LoPA?

Should note that claim form was from the NCC Bulk Centre.

[labman]

Re: Court action - Howard Cohen

Section 196

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.


Notice will be sufficiently served if served by hand (this includes putting the notice through the letter box to the property – a communal letterbox or hallway will not be sufficient.), or sent by first-class post deemed to be delivered two working days later.

[apocalypsedreams]

Re: Court action - Howard Cohen

Thanks Labman.

[postggj]

Re: Court action - Howard Cohen

interpretations act comes into play on this me thinks

considered delivered 2 days after posting

end game as sent recorded delivery it seems

[postggj]

Re: Court action - Howard Cohen

s.7 Interpretation Act 1978

'Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post'

royal mail is 2 days for posting a first class letter
you have proof by way of recorded delivery confirmation on when it entered the postal system

s.7 Interpretation Act 1978 applies, anything placed in the care of the Royal Mail is deemed delivered. You only need to continue to maintain that you posted it, date and place

bye, bye, cohen

[Gorang]

Re: Court action - Howard Cohen

As long as it is 2 working days from when you posted it
Bank hols and weekends come into it also

So if you posted on a friday then it would not be deemed delivered until the wednesday morning or the thursday morning if the monday was a bank hol

Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post.

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.
"Working days" are Monday to Friday, excluding any bank holiday

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

[apocalypsedreams]

Re: Court action - Howard Cohen

It was posted on Tuesday June 28 and arrived 3 days later on Friday July 1.

[apocalypsedreams]

Re: Court action - Howard Cohen

From Companies House Late Filing Appeal manual:

The requirement in section 441(1) of the Companies Act 2006 to
“deliver to the registrar” means that the accounts must be received by
the Registrar within the time allowed for filing. Delivery therefore means
the actual handing over (which is legally defined in rule 7 volume 2 of
Registrar’s rules, further detail can be found at the following address:
http://www.companieshouse.gov.uk/abo...gistrarsRules/
registrarsRules.pdf ) of a document at Companies House, not the posting
or handing of a package to a courier. Delivery is defined in the Act in
s.1071(1), which states that: “A document is not delivered to the registrar
until it is received by the registrar.”

I am interested in how they define their rules as "legally defined" and, thus, trumping an Act of Parliament???

[apocalypsedreams]

Re: Court action - Howard Cohen

I have decided to defend and would appreciate any wording that forum users might advise.

[Don Quixote]

Re: Court action - Howard Cohen

Hi

As you know from ‘another place’, successful defences against Companies House are as rare as rocking horse poo (or Man Utd wins). Which level of delivery did you use? Did it include insurance for consequential loss?

[apocalypsedreams]

Re: Court action - Howard Cohen

I used recorded without additional insurance.

[apocalypsedreams]

Re: Court action - Howard Cohen

I agreed a payment plan WITHOUT PREJUDICE on the phone with CH and they agreed to withdraw the debt from Lewis and cancel the court action. From the CH letter: "I also withdrew the debt from Lewis Group on the same day [that we agreed a payment plan]."

However, I have just checked MCOL (at about 1am, 14/12/11) and the claim is still open. I now have 2 days to file a defence or lose by default, forcing me to pay an amount I cannot afford in one go.

The POC states that "There remains a balance...and the Claimant claims that sum." I am thinking that I file a defence on the grounds that I have a written agreement with CH to resolve the situation. Ideas gratefully received!

[apocalypsedreams]

Re: Court action - Howard Cohen

I filed a defence based on the above post and have claimed £164 in costs!