UK Offence Report

Takeover offers

article 26(1) of The Companies (Northern Ireland) Order 1989 (revoked)

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

6 If the offeror fails to comply with paragraph (3) he and, if the offeror is

a company, every officer of the company who is in default or to whose neglect the failure is attributable, shall be liable to

a fine and, for continued contravention, to

a daily default fine.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a company
Conduct
failing to do something the instrument requires
Fault element
Mixed — some elements strict, some not
Burden of proof
Legal burden on the defendant

The prosecution must prove the conduct, and - for those elements the provision qualifies (knowing it to be) - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no fault word in the offence-creating words, but the surrounding provision uses knowing it to be - which element it governs was not determined.

The defence, as drafted

ing to send a copy of a notice as required by paragraph (4) it is a defence for him to prove that he took reasonable steps for securing compliance with that paragraph. 8 Where during the period within which a takeover offer can be accepted the offeror acquires or contracts to acquire any of the shares to which the offer relates but otherwise than by

What would breach article 26(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Not doing what the provision requires under the Companies (Northern Ireland) Order 1989, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Not determined
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

'to a fine' with no stated maximum.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
19 December 1989
In force from
Not determined
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order— a in Part II re-enacts provisions of the Companies (Northern Ireland) Order 1986 relating to the disqualification of company directors and imposes a duty on the High Court to disqualify a company director if he is found to be unfit to be concerned in the management of a company; b in Part III makes miscellaneous amendments to the Companies (Northern Ireland) Order 1986 and the Company Securities (Insider Dealing) (Northern Ireland) Order 1986. The main amendments are— i to make new provision with repspect to takeover offers in respect of companies; ii to make provision for the investigation of insider dealing; iii to restrict the disclosure of information obtained as the result of an investigation of insider dealing; iv to provide a power of entry and inspection for the purpose of investigating insider dealing; v to increase the term of imprisonment on conviction of the offence of insider dealing from 2 years to 7 years; and vi to make minor corrections in the consolidated Companies (Northern Ireland) Order 1986.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.68.

Basis
the provision states a penalty in older drafting
Confidence
0.68 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source