Administering business remotely
As businesses adjust to operating with the current disruptions, complying with regulatory obligations and contracting remotely present particular challenges. In this article, we consider how Covid-19 has impacted Companies House, HMRC, the Land Registry, and the UK Intellectual Property Office (IPO), and the steps they are taking to assist businesses. In addition, we outline how contracts can be executed remotely and the particular challenge of witnessing documents while complying with social distancing rules.
Although coronavirus restrictions are disrupting business on a day to day basis, regulatory duties still apply and need to be complied with. With respect to filing requirements our clients still need us to file forms on their behalf with Companies House, HMRC, the Land Registry, and the IPO. These simple instructions are not without challenge because the relevant bodies have changed their procedures in response to the pandemic. Nonetheless, government agencies are taking steps to help companies continue to comply with their filing and registration obligations.
We set out below the current position of Companies House, the Land Registry, HMRC Stamp Duty, and the IPO.
Note: the positions stated are accurate at the time of writing, but the government’s response to the situation is evolving and so we advise you to check the up to date guidance of the relevant government agency before acting on it. We have provided links in the article.
Companies House has released guidance to help companies meet their filing obligations.
Recognising the problems that coronavirus may be causing companies, Companies House is providing the option to apply for a 3-month extension to file company accounts, if they are at risk of being late because the company is affected by coronavirus disruption. This application can be filed online and will require submission of the company number, an email address, and information about why the extension is needed. You may also submit documents to support the application for an extension.
The extension application must be filed before the accounts filing deadline otherwise late filing penalties will still apply. However, Companies House have indicated that they will treat appeals sympathetically when the delay is caused by the coronavirus. They are also offering payment plans in respect of any penalties due.
Payment of penalties must be completed via BACS, or possibly online if your penalty notice offers that option. Payment via credit card over the telephone has been suspended to protect Companies House staff.
In addition, Companies House has stated that they are easing strike off activity. This will give companies more time to file their accounts if they are overdue. Similarly, while voluntary strike off notices will be placed in the Gazette, Companies House will suspend any further action. This is intended to protect the ability of creditors and other interested parties who may want to object to a striking off. If you are affected by the changes or want to understand how they may apply to you, you should seek professional advice.
Most information can be filed with Companies House electronically using their existing online services. This requires a WebFiling account. Companies can register for an account on the Companies House website. Companies House will then send an authentication code by post to the company’s registered office. If you need to register for an account, consider whether you can access your registered office given the current restrictions. For instance, many companies have their registered office with their accountant and many accountants are working remotely.
If electronic filing is not an option, companies can still send hard copy filings to the Cardiff, Belfast or Edinburgh offices. This may be the case if the company does not have a WebFiling account, or if the form to be filed cannot be filed electronically because it is of a particular type such as a change of constitution forms, notices of resolutions, purchase of own shares, and allotment of new classes of shares among others. Companies House is working on a solution to allow documents of this type to be filed online, but as of publication it is not operational and the details remain unclear. If you are unsure of whether a form you intend to file can be filed online we encourage you speak to your accountant or other advisers.
Repurchase of shares and schemes of arrangement normally require the submission of a form (SH03) or court order which has been stamped by HMRC. HMRC are not currently stamping documents (see below). As a result, Companies House will accept unstamped SH03s if they are accompanied by a letter from HMRC confirming that the correct duty has been paid (or that none is due).
Companies House does not typically accept forms by email. However, it is currently making an exception for SR01s which remove your address from the public register. These should be emailed to DSR@companieshouse.gov.uk followed up with a paper form together with a cheque or postal order to one of the Companies House offices listed above.
In a similar vein, if you want to restrict the disclosure of your personal information on Companies House, you can apply online. This service is intended for use by directors and persons with significant control (PSCs) who are at serious risk.
Contacting Companies House
Other offices have been closed, as has the Companies House telephone contact centre. Questions however can be submitted to email@example.com. Limited operations mean that same-day services are not currently available.
Stamp Duty on shares
HMRC has changed its operations in response to the coronavirus.
Under the current procedure at the time of writing, if you have to pay stamp duty on a share transfer you should pay by online banking to:
Sort code: 08-32-10
Account number 12001098
Account name: HMRC Birmingham Stamp Office
You cannot pay by cheque at the current time. Make sure to provide a payment reference so that HMRC can identify your payment. Use your name followed by the payment amount (no spaces), for example: JBrown/240.00.
[You check for any updates on the HMRC site (accessible via the link above) before making any payments.] After you have paid, email firstname.lastname@example.org. Make sure to include the payment reference, payment amount, date of payment, an electronic copy of the stock transfer form (and an electronic copy of the SH03 if the company is conducting a share buyback).
The Land Registry mainly receives applications through its online Business e-services portal which has been largely unaffected by the coronavirus pandemic.
They have flagged that moderate disruption may occur in the discharge of updates, and significant disruption is likely for finding a property, applications to create a new registration (e.g. first registration of freehold or registration of a new lease) and applications to update the register (e.g. transfer of a freehold or lease, registering a mortgage). However, most services will experience minimal disruption.
The Land Registry Customer Support Centre is however not answering telephone calls and offices are closed to the public. They can instead be contacted via an online form. In addition, you can apply to view property information by post or online.
Importantly, Land Charges applications may now be made by email attaching PDF copies of the application form and supporting evidence. However, this is only available to customers with variable Direct Debit accounts, and does not extend to applications which can already be made through the e-services portal or Business Gateway.
However, cancellation dates on current entries have been extended until further notice. Once the Land Registry resumes normal service they will send warnings of cancellation again, giving customers four weeks to reply.
Where they are not prevented by laws and regulations, the Land Registry has stated they will aim to grant any request to extend a notice period, or allow a further period for making an objection, for any reason related to coronavirus.
Where evidence of identity is required, the Land Registry is not currently rejecting applications that do include such evidence. Instead they will raise a request for information, which will allow the application to maintain its priority.
UK Intellectual Property Office (IPO)
The IPO has closed their offices due to the Coronavirus pandemic. However, the majority of the IPOs services remain unaffected and it continues to operate as normal. Nonetheless, there are some important changes. We set out the changes that affect all IPO services below. In addition, the IPO has further information for changes to specific services on their website:
alterations to patent processes.
alterations to trade marks and designs.
alterations to tribunals and hearings.
The IPO has declared 24 March, and subsequent days until further notice, interrupted days.
Any deadlines for patents, supplementary protection certificates, trade marks, designs, and applications for these rights, which fall on an interrupted day will be extended until the IPO notifies the end of the interrupted days period. This means that any deadline which would occur during that period instead occurs the day after that period ends. Note that this only applies to deadlines over which the IPO has control. The IPO is unable to extend certain deadlines such as priority applications for trademarks or may limit the IPOs discretion in regard to the length of the extension. If you are unsure whether a deadline has been extended, we encourage you to review the IPO website or contact your advisers.
The IPO will review this decision on 7 May and will either continue with the period of interruption or announce that the period will end after a further two weeks. So interrupted days will continue until at least 21 May.
For further information see the IPO’s formal notice and certificate of declaration.
Postal and paper services
Currently, the IPO is not processing paper forms, faxes and paper correspondence and clearly no documents can be filed by hand at IPO offices since they are closed.
Most IPO services can be accessed via existing websites. In addition, The IPO has a new email address for services that are not available online called email@example.com. This can be used for documents that would otherwise be faxed or posted. In addition, the IPO has confirmed that they accept electronic signatures on forms and other documents.
Executing contracts electronically and witnessing documents without breaking social distancing rules
Social distancing measures mean that more businesses are seeking to execute contracts remotely. This raises the question of how to execute documents via electronic means.
The solution that involves the most continuity is that each party prints a copy of the contract, signs it, scans it, and emails it to the other party or parties. If this solution is chosen, parties may wish to include a counterparts clause (which allows each party to sign different copies of the contract). However, with many people away from their offices, effective printing and scanning facilities may not be available. So electronic signatures may be desired.
Many contracts do not require a specified form. This means that technically they may not need a signature. However, a signature is to evidence of intention to enter into a contract, and on the terms set out in the document. So, a signature is always advisable, especially for detailed or important contracts.
Further, some contracts are required by statute to be signed. These include deeds, guarantees, contracts for the sale of land, transfers of registered securities, powers of attorney, and more. A small number of contracts cannot be signed electronically, the most important of which are wills and dispositions of registered land. Some of these also require the signature to be witnessed (on which more below). If you are unsure as to whether a contract requires special signing formalities, we encourage you to contact us to discuss.
Contracts signed using an electronic signature may take many different forms. These include:
- The signatory typing their name or initials at the bottom of an electronic document, such as an email, or in the signature block of a Word document.
- A scanned handwritten signature that is incorporated into an electronic document, or pasting an image of a manuscript signature into an electronic document.
- Clicking an “I accept” or “I agree” button on a website.
- Using a stylus or finger to sign an electronic document via a touchscreen or digital pad.
- Using a web-based e-signing platform such as Adobe Sign or DocuSign to generate:
- an electronic representation of a handwritten signature; or
- a digital signature using PKI cryptography which is backed by a digital certificate from the platform (or a TSP) to verify the signatory’s identity and link the signatory to their public key.
Any of these will constitute a valid signature. In one court case, an automatic email signature was held to constitute a valid signature to a contract.
However, while all electronic signatures can be valid, they can also be challenged as forgeries. Thus, it is important to consider how trustworthy, secure and reliable the technology is. For example, a typed name at the end of a document is very easy to forge. Similarly, anyone with access to a scanned manuscript signature may affix it to any document. The easier a signature is to forge the more likely it is to be successfully challenged in court. So, for important contracts, be cautious of electronic signatures and seek to use more secure forms of electronic signatures.
Two options which can be more secure are e-signing platforms such as DocuSign and Adobe Sign, and digital signatures.
E-signing platforms allow a document to be uploaded, signature boxes attached, and then the document sent to the parties. The main form of verification is each party’s email address, and two-factor authentication is an option on many platforms for extra security. In addition, the platform creates a digital audit trail which records who signed the document, the email address of the signer, their IP address, additional authentication, and sometimes the location where the document was signed. The audit trail is admissible in court and will carry evidential weight in proving the authenticity or integrity of the disputed document. One issue to consider with e-signing platforms is that the party who uploads the document will be a data controller under GDPR and so have obligations involving the security of all parties’ data. For this reason, it is important to ensure that any e-signing platform has adequate security measures in place.
Digital signatures are a more advanced type of electronic signatures. They are more common in civil law countries, and are prevalent in highly regulated industries, such as banking and pharma.
To obtain a digital signature you must apply to a TSP and provide proof of identity (such as a passport or driving license). The digital signature can then be used with e-signing platforms such as Adobe Sign. This might be advisable in high risk, high value transactions to provide an enhanced level of assurance that the signatory is who they claim to be, and that the signed document is authentic.
Some contracts, for example deeds, require a witness to be present at the signing, and attest that the signatory signed the document. The current view is that requirement for the witness to be present means physical presence of a witness is necessary. The witness must also sign the document as a witness. Physical presence means the witness must be in the same room as the signatory (or otherwise able to see the signatory sign the deed). To help our clients, we have been witnessing documents from the garden gate to comply with witnessing requirements while adhering to social distancing measures.
Therefore electronic signatures are acceptable for deeds. The challenge however is to get them witnessed. Some e-signing platforms have the ability to send a document to be signed with witnesses. The signatory signs the document and specifies the name and email address of the witness. The witness will then receive an email enabling them to fill in certain details (e.g. address and occupation) and sign as a witness.
However there has not been a court case on this matter, or legislation explicitly allowing electronic execution of deeds. The Law Commission has published a report in which they explicitly consider the electronic execution of deeds, including by e-signing platforms. They were clear that most deeds could be executed electronically. The exceptions are that wills, certain transactions related to land, and some share transfers must be on paper. There was some uncertainty as to whether a deed could be witnessed via video link, though the consensus is that a witness must be in the same room as the signatory.
We will keep you updated when we hear more.
If you would like to discuss any of the decisions you are making in these challenging times, or have any other questions, you can contact us via 020 3709 9670 or firstname.lastname@example.org
See the links below to our COVID-19 related articles which may be a useful read in these challenging times