This article is for Irish company directors, founders, and business owners who've discovered errors in their company's incorporation documents or setup.
If you're worried about missing appointments, wrong share structures, constitutional errors, or other defects in your company formation, this guide covers how to assess the severity of the problem, what can be fixed through simple CRO filings, and when you might need court rectification or professional legal help.
Key Takeaways
• Minor errors like misspelled director names can be fixed by filing corrected forms with the CRO and a covering letter. • Section 173 allows court-ordered rectification of the register of members when share allocations were recorded incorrectly at incorporation. • Acts by directors or secretaries remain valid despite defective appointments, protecting third parties who dealt with the company in good faith. • Constitutional errors require a special resolution passed by 75% of voting members and filed with Form B5. • Reincorporation becomes necessary when defects are too fundamental to cure, requiring a new company and transferring all assets and contracts.
Laura Ryan is a practising Barrister at the Bar of Ireland. She graduated from the Honourable Society of King’s Inns in 2024, having previously qualified and practised as a Chartered Accountant in a big four accounting firm.
What are the most common incorporation defects I should watch out for?
The most common defects include incorrect director details (wrong addresses or misspelled names), invalid share capital structures, missing required appointments like company secretaries, and constitutional errors with contradictory provisions. Wrong company type selection, such as incorporating as LTD when DAC was required, is also a frequent issue.
Can I fix minor errors like spelling mistakes in director names?
Yes, minor administrative errors can be corrected by filing amended forms with the CRO along with a covering letter explaining the error. These corrections update the public register and don't affect your company's legal validity or existing contracts.
What happens if I discover my company secretary was never properly appointed?
Hold a board meeting immediately to formally appoint a company secretary and file Form B10 with the CRO showing the appointment from the current date. While you cannot backdate appointments for CRO filing purposes, the Companies Act 2014 protects past actions taken by officers with defective appointments, so your previous decisions remain valid.
Do my existing contracts remain valid if there were defects in director appointments?
Yes, Irish legislation specifically protects the validity of acts done by directors or secretaries even if their appointments were technically defective. This protection extends to third parties who dealt with your company in good faith, though it doesn't apply if parties knew about the defect when contracting.
How do I fix errors in my company's constitution?
You need to pass a special resolution (requiring 75% of members voting) to correct the constitutional error and file it with Form B5. The amendment takes effect when the special resolution is passed, not when filed with the CRO, though some constitutional defects may require professional legal advice.
What is Section 173 rectification and when would I use it?
Section 173 allows the court to order rectification of the register of members when names are wrongly entered or omitted due to errors at incorporation or later. Any member or person claiming to be a member can apply to court, which can order rectification and award damages where appropriate—particularly useful when share allocations were recorded incorrectly.
When would I need to reincorporate rather than fix the defects?
Reincorporation becomes necessary when defects are so fundamental they cannot be cured retrospectively, such as when constitutional provisions are fundamentally incompatible with your business needs, multiple compounding errors make rectification more expensive than starting fresh, or regulatory approvals require a properly structured entity from inception. This involves forming a new company and transferring all assets, contracts, and operations from the defective entity.
What should I do immediately if I discover incorporation defects?
Take prompt action to assess the defect's severity, get professional advice from solicitors experienced in company law, and document what defect exists and its impact. Stop any activities that might be affected by the defect until rectification is complete, notify relevant stakeholders if their rights are affected, and file corrected forms with the CRO as soon as possible.
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