The Companies (Northern Ireland) Order 1986 (revoked) No. 1032 (NI. 6)

PART IF45 N.I. INTRODUCTORY AND INTERPRETATION

F45 Order repealed (prosp.) by Companies Act 2006 (c. 46), ss. 1284(2), 1295, 1300(2), Sch. 16 and the repeal being partly in force, as to which see individual Articles (with savings (with adaptations) by Companies Act 2006 (Commencement No. 6, Saving and Commencement Nos. 3 and 5 (Amendment)) Order 2008 (S.I. 2008/674), arts. 2(3), {4}, Sch. 2) and subject to amendments (6.4.2008) by Companies Act 2006 (Consequential Amendments etc) Order 2008 (S.I. 2008/948), arts. 2(2), 3(1)(b)(2), Sch. 1 paras. 135, 147, 148 {Sch. 2 Note 1} (with arts. 6, 11, 12) and subject to amendments (6.4.2008) by S.R. 2008/133, {regs. 2, 3}

Title and commencement N.I.

1.—(1) This Order may be cited as the Companies (Northern Ireland) Order 1986.

(2) F1 . . . this Order comes into operation on the expiration of three months from the day on which it is made.

F1 1990 NI 5

General interpretation N.I.

2.—(1) The [1954 c.33 (N.I.)] Interpretation Act (Northern Ireland) 1954 applies to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

Para. (2) rep. by 1990 NI 10

(3 )F2  In this Order—

• “the Act of 1960” means the [1960 c.22 (N.I.)] Companies Act (Northern Ireland) 1960;

• “agent” does not include a person's counsel acting as such;

• F3 “annual return” means the return to be made by a company under Article 371 or 372 (as the case may be);

• “articles” and “articles of association” mean, in relation to a company, its articles of association, as originally framed or as altered by resolution, including (so far as applicable to the company) regulations contained in or annexed to any statutory provision relating to companies passed or made before this Order, as altered by or under any such statutory provision;

• Definition rep. by 1990 NI 5

• F3 “authorised minimum” has the meaning given by Article 128;

• “bank holiday” means a day which is a bank holiday in Northern Ireland under the [1971 c.80] Banking and Financial Dealings Act 1971;

• Definition rep. by SI 2001/3649

• “books and papers” and “books or papers” include accounts, deeds, writings and documents;

• [F4 “communication” means the same as in the Electronic Communications Act (Northern Ireland) 2001;]

• “the Companies Orders” means this Order, the[F5 insider dealing legislation] and the consequential Provisions Order;

• F3 “company limited by guarantee” and “company limited by shares” have the meaning assigned to them respectively by Article 12(2);

• “the Consequential Provisions Order” means the [1986 NI 9] Companies Consolidation (Consequential Provisions) (Northern Ireland) Order 1986;

• F3 “contributory” has the meaning assigned to it by Article 473;

• “the court,” in relation to a company, means the court having jurisdiction to wind up the company;

• “debenture” includes debenture stock, bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;

• “the Department” means the Department of Economic Development;

• “document” includes summons, notice, order and other legal process, and registers;

• [F6 “EEA State” means a State which is a Contracting Party to the Agreement signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;]

• [F4 “electronic communication” means the same as in the Electronic Communications Act (Northern Ireland) 2001;]

• “equity share capital” means, in relation to a company, its issued share capital excluding any part of that capital which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in distribution;

• F3 “expert” has the meaning given by Article 72;

• “former Companies Acts” means the [1862 c.89] Joint Stock Companies Acts, the [1908 c.69] Companies Act 1862, the Companies (Consolidation) Act 1908, the [1932 c.7 (N.I.)] Companies Act (Northern Ireland) 1932 and the Companies Acts (Northern Ireland) 1960 to 1983;

• “hire purchase agreement” has the same meaning as in the [1974 c.39] Consumer Credit Act 1974;

• [F5 “the insider dealing legislation” means Part V of the Criminal Justice Act 1993 (insider dealing);]

• [F7 “insurance market activity” has the meaning given in section 316(3) of the Financial Services and Markets Act 2000;]

• “the Insolvency Account” means the account kept by the Department under[F8 Article 358 of the Insolvency Order];

• Definition rep. by SI 2001/3649

• F3 “joint stock company” has the meaning given by Article 632;

• “the Joint Stock Companies Acts” means the [1856 c.47] Joint Stock Companies Act 1856, the [20 & 21 VICT. c.14] Joint Stock Banking Companies Act 1856, 1857, the [1857 c.49] Joint Stock Banking Companies Act 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle [1858 c.91] of limited liability, or any one or more of those Acts (as the case may require), but does not include the [1844 c. 110] Joint Stock Companies Act 1844;

• “memorandum”, in relation to a company, means its memorandum of association, as originally framed or as altered in pursuance of any statutory provision;

• “number”, in relation to shares, includes amount, where the context admits of the reference to shares being construed to include stock;

• “officer” in relation to a body corporate, includes a director or secretary;

• F3 “the Official Assignee” means the officer appointed under Article 488 and, for the purposes of this Order, includes an Assistant Official Assignee;

• “the Order of 1978” means the [1978 NI 12] Companies (Northern Ireland) Order 1978;

• “the Order of 1981” means the [1981 NI 19] Companies (Northern Ireland) Order 1981;

• “the Order of 1982” means the [1982 NI 17] Companies (Northern Ireland) Order 1982;

• “the Order of 1983” means the [1983 NI 12] Companies (Beneficial Interests) (Northern Ireland) Order 1983;

• “Part XXIII company” has the meaning given by Article 640;

• “place of business” includes a share transfer or share registration office;

• “prescribed” meansF8 . . . , prescribed by regulations made under Article 681;

• “prospectus” means any prospectus, notice, circular, advertisement or other invitation, offering to the public for subscription or purchase any shares in or debentures of a company;

• [F9 “prospectus issued generally” means a prospectus issued to persons who are not existing members of the company or holders of its debentures;]

• Definition rep. by 1987 c. 22

• Definition rep. by 1986 c. 60

• [F7 regulated activity has the meaning given in section 22 of the Financial Services and Markets Act 2000;]

• “the registrar” means the registrar of companies appointed under Article 653, and, for the purposes of this Order, includes an assistant registrar;

• F3 “a resolution for reducing share capital” has the meaning assigned to it by Article 145(3);

• Definition rep. by 1989 NI 19

• “share” means share in the share capital of a company and includes stock (except where a distinction between shares and stock is express or implied);

• “statutory provision” has the meaning assigned to it by section 1(f) of the [1954 c.33 (N.I.)] Interpretation Act (Northern Ireland) 1954;

• “undischarged bankrupt” includes—

  (a)

  a bankrupt who has not obtained the certificate of conformity mentioned in section 56 of the [1872 c.58] Bankruptcy (Ireland) Amendment Act 1872;

  (b)

  a bankrupt who has not been discharged from his bankruptcy by an absolute order of discharge under Article 28 or 30 of the [1980 NI 4] Bankruptcy Amendment (Northern Ireland) Order 1980 [F8 or Article 254 of the Insolvency Order], or by virtue of the expiration of the period or the satisfaction of any requirement specified in a suspended or conditional order of discharge under[F8 any] of those Articles, or by virtue of Article 29(2) or (4) (automatic discharge) of that Order[F8 of 1980 or of Article 253 (duration of discharge) of the Insolvency Order];

  (c)

  a person who is an undischarged bankrupt under the law of England or Scotland;

• F3 “undistributable reserves” has the meaning given by Article 272;

• F3 “unlimited company” has the meaning assigned to it by Article 12(2)(c).

(4) For the purposes of section 42 of the [1973 c.36] Northern Ireland Constitution Act 1973 (validity of Acts of Parliament of Northern Ireland), provisions of this Order which re-enact provisions of an Act of the Parliament of Northern Ireland are deemed to be provisions of such an Act.

F2 mod. by SR 2004/307

F3 prosp. repeal by 1990 NI 10

F4 SR 2003/3

F5 1993 c.36

F6 SR 2004/263

F7 SI 2001/3649

F8 1989 NI 19

F9 Art 2: definition of "prospectus issued generally" repealed (29.4.1988 for certain purposes, otherwise prosp.) by Financial Services Act 1986 (c. 60), s. 212(3), Sch. 17 Pt. II; S.I. 1988/740, art. 2, Sch. (N.B. 1986 c. 60 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 3(1)(c) (with art. 292))

{prosp. insertion of 2nd art. 2A by 1990 NI10} N.I.

F10 Art. 2A (new) prosp. insertion by 1990 NI10

F11 SI 2001/3649 amending art. 2A which was inserted prosp. by 1990 NI 10

F12 SR 2003/3 amending art. 2A which was inserted prosp. by 1990 NI 10

F13 SR 2004/263 amending Art. 2A which was inserted prosp. by 1990 NI 10

F14 SR 2004/496 5 amendments to be made amending Art. 2A which was inserted prosp. by 1990 NI 10

F15 mod. by SR 2004/307

[F16 Relationship of this Order to Insolvency Order N.I.

2A.— (1 )F17  In this Order “the Insolvency Order” means the Insolvency (Northern Ireland) Order 1989.

(2) In Articles 383(1)(b), 418(5)(a),F18 . . . 453(2), 625, 626, 627 and 676 and paragraph 6(1) of Schedule 20 the words “this Order” are to be read as including Parts II to VII and Articles 359 to 362 of the Insolvency Order[F19 and the Company Directors Disqualification (Northern Ireland) Order 2002]

.

(3) In Articles[F20 653(4) and (5)], 655(1),[F21 656B],[F18 656A(1),] 657(1)(a) and (3),[F18 658(1) and (3),][F18 659A], 662(1), 677 and 680(3) references to the Companies Orders include Parts II to VII and Articles 359 to 362 of the Insolvency Order[F19 and the Company Directors Disqualification (Northern Ireland) Order 2002].]

F16 1989 NI 19

F17 mod. by SR 2004/307

F18 1990 NI 10

F19 2002 NI 4

F20 1996 NI 11

F21 SR 2003/3

[F22 Relationship of this Order to Parts IV and V of the Financial Services Act 1986 N.I.

2B.   In Articles[F23 653(4) and (5)], 655(1), 656(1), 656A(1), 657(1)(a) and (3), 658(1) and (3), 659A and 662(1) references to the Companies Orders include[F24 Part 6 of the Financial Services and Markets Act 2000].]

F22 1990 NI 10, art. 61(6)

F23 1996 NI 11

F24 SI 2001/3649

“Company”, etc. N.I.

3.—(1) In this Order—

(a) “company” means a company formed and registered under this Order, or an existing company;

(b) “existing company” means a company formed and registered, or deemed to have been registered, in Northern Ireland under the former Companies Acts;

(2) “Public company” and “private company” have the meanings given by Article 12.

[F25 “ Subsidiary ”, “ holding company ” and “ wholly-owned subsidiary ” N.I.

4.— (1 )F26  A company is a “subsidiary” of another company, its “holding company”, if that other company—

(a) holds a majority of the voting rights in it, or

(b) is a member of it and has the right to appoint or remove a majority of its board of directors, or

(c) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it,

• or if it is a subsidiary of a company which is itself a subsidiary of that other company.

F26 (2 )F26  A company is a “wholly-owned subsidiary” of another company if it has no members except that other and that other's wholly-owned subsidiaries or persons acting on behalf of that other or its wholly-owned subsidiaries.

(3) In this Article “company” includes any body corporate.]

F25 1990 NI 10, art. 62(1)

F26 mod. by SR 2004/307

[F27 Provisions supplementing Article 4 N.I.

4A.— (1) The provisions of this Article explain expressions used in Article 4 and otherwise supplement that Article.

F28 (2) In Article 4(1)(a) and (c) the references to the voting rights in a company are to the rights conferred on shareholders in respect of their shares or, in the case of a company not having a share capital, on members, to vote at general meetings of the company on all, or substantially all, matters.

F28 (3) In Article 4(1)(b) the reference to the right to appoint or remove a majority of the board of directors is to the right to appoint or remove directors holding a majority of the voting rights at meetings of the board on all, or substantially all, matters; and for the purposes of that provision—

(a) a company shall be treated as having the right to appoint to a directorship if—

(i) a person's appointment to it follows necessarily from his appointment as director of the company, or

(ii) the directorship is held by the company itself; and

(b) a right to appoint or remove which is exercisable only with the consent or concurrence of another person shall be left out of account unless no other person has a right to appoint or, as the case may be, remove in relation to that directorship.

(4) Rights which are exercisable only in certain circumstances shall be taken into account only—

(a) when the circumstances have arisen, and for so long as they continue to obtain, or

(b) when the circumstances are within the control of the person having the rights;

and rights which are normally exercisable but are temporarily incapable of exercise shall continue to be taken into account.

(5) Rights held by a person in a fiduciary capacity shall be treated as not held by him.

(6) Rights held by a person as nominee for another shall be treated as held by the other; and rights shall be regarded as held as nominee for another if they are exercisable only on his instructions or with his consent or concurrence.

(7 )F28  Rights attached to shares held by way of security shall be treated as held by the person providing the security—

(a) where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with his instructions;

(b) where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in his interests.

(8 )F28  Rights shall be treated as held by a company if they are held by any of its subsidiaries; and nothing in paragraph (6) or (7) shall be construed as requiring rights held by a company to be treated as held by any of its subsidiaries.

(9 )F28  For the purposes of paragraph (7) rights shall be treated as being exercisable in accordance with the instructions or in the interests of a company if they are exercisable in accordance with the instructions of or, as the case may be, in the interests of—

(a) any subsidiary or holding company of that company, or

(b) any subsidiary of a holding company of that company.

(10 )F28  The voting rights in a company shall be reduced by any rights held by the company itself.

(11) References in any provision of paragraphs (5) to (10) to rights held by a person include rights falling to be treated as held by him by virtue of any other provision of those paragraphs but not rights which by virtue of any such provision are to be treated as not held by him.

(12 )F28  In this Article “company” includes any body corporate.]

F27 1990 NI 10, art. 62(2)

F28 mod. by SR 2004/307

[F29 Power to amend Articles 4 and 4A N.I.

4B.— (1) The Department may by regulations amend Articles 4 and 4A so as to alter the meaning of the expressions “holding company”, “subsidiary” or “wholly-owned subsidiary”.

(2) Any amendment made by regulations under this Article does not apply for the purposes of statutory provisions outside the Companies Orders unless the regulations so provide.

(3) So much of section 29(1) of the Interpretation Act (Northern Ireland) 1954 (effect of repeal and re-enactment) as relates to statutory documents shall not apply in relation to any repeal and re-enactment effected by regulations made under this Article.]

F29 1990 NI 10, art. 62(3)

“Called-up share capital” N.I.

5.—(1) In this Order, “called-up share capital”, in relation to a company, means so much of its share capital as equals the aggregate amount of the calls made on its shares (whether or not those calls have been paid), together with any share capital paid up without being called and any share capital to be paid on a specified future date under its articles, the terms of allotment of the relevant shares or any other arrangements for payment of those shares.

(2) “Uncalled share capital” is to be construed accordingly.

“Allotment” and “paid up” N.I.

6.—(1) In relation to an allotment of shares in a company, the shares are to be taken for the purposes of this Order to be allotted when a person acquires the unconditional right to be included in the company's register of members in respect of those shares.

(2) For the purposes of this Order, a share in a company is deemed paid up (as to its nominal value or any premium on it) in cash, or allotted for cash, if the consideration for the allotment or payment up is cash received by the company, or is a cheque received by it in good faith which the directors have no reason for suspecting will not be paid, or is a release of a liability of the company for a liquidated sum, or is an undertaking to pay cash to the company at a future date.

(3) In relation to the allotment or payment up of any shares in a company, references in this Order (except Articles 99 to 104) to consideration other than cash and to the payment up of shares and premiums on shares otherwise than in cash include the payment of, or any undertaking to pay, cash to any person other than the company.

(4) For the purpose of determining whether a share is or is to be allotted for cash, or paid up in cash, “cash” includes foreign currency.

“Non-cash asset” N.I.

7 .F30 —(1) In this Order “non-cash asset” means any property or interest in property other than cash; and for this purpose “cash” includes foreign currency.

(2) A reference to the transfer or acquisition of a non-cash asset includes the creation or extinction of an estate or interest in, or a right over, any property and also the discharge of any person's liability, other than a liability for a liquidated sum.

F30 mod. by SR 2004/307

“Body corporate” and “corporation” N.I.

8 .F31   References in this Order to a body corporate or to a corporation do not include a corporation sole, but include a company incorporated elsewhere than in Northern Ireland.

Such references to a body corporate do not include a Scottish firm.

F31 mod. by SR 2004/307

“Director” and “shadow director” N.I.

9.—(1) In this Order, “director” includes any person occupying the position of director, by whatever [F32 name] called.

(2) In relation to a company, “shadow director” means a person in accordance with whose directions or instructions the directors of the company are accustomed to act.

However, a person is not deemed a shadow director by reason only that the directors act on advice given by him in a professional capacity.

(3 )F33  For the purposes of the following provisions, namely—

• Article 317 (directors' duty to have regard to interests of employees);

• Article 327 (directors' long-term contracts of employment);

• Article 328 to 330 (substantial property transactions involving directors);F34 . . .

• [F34 Article 330B (contracts with sole members who are directors); and]

• Articles 338 to 354 (general restrictions on power of companies to make loans, etc. to directors and others connected with them),

• (being provisions under which shadow directors are treated as directors), a body corporate is not to be treated as a shadow director of any of its subsidiary companies by reason only that the directors of the subsidiary are accustomed to act in accordance with its directions or instructions.

F32 1989 NI 18

F33 mod. by SR 2004/307

F34 SR 1992/405

[F35 Expressions used in connection with accounts N.I.

10 .F36 — (1) In this Order the following expressions have the same meaning as in Part VIII (accounts)—

• “annual accounts”,

• “accounting reference date” and “accounting reference period”,

• “balance sheet” and “balance sheet date”,

• [F37 “Companies Order accounts”]

• [F37 “Companies Order individual accounts”]

• “current assets”,

• “financial year”, in relation to a company,

• “fixed assets”,

• [F37 “IAS accounts”]

• [F37 “IAS individual accounts”]

• “parent company” and “parent undertaking”,

• “profit and loss account”, and

• “subsidiary undertaking”.

(2) References in this Order to “realised profits” and “realised losses”, in relation to a company's accounts, shall be construed in accordance with Article 270(3).

[F38 (3) References in this Order to sending or sending out copies of any of the documents referred to in Article 246(1) include sending or sending out such copies in accordance with Article 246(4A) or (4B).]]

F35 1990 NI 5, art. 25

F36 mod. by SR 2004/307

F37 SR 2004/496

F38 SR 2003/3

[F39 Meaning of “offer to the public” N.I.

10A.— (1) Any reference in[F40 Article 2(3) (interpretation),] Part V (allotment of shares and debentures) or Part VIII (accounts) to offering shares or debentures to the public is to be read as including a reference to offering them to any section of the public, however selected.

(2) This Article does not require an offer to be treated as made to the public if it can properly be regarded, in all the circumstances—

(a) as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer; or

(b) as being a domestic concern of the persons receiving and making it.

(3) An offer of shares in or debentures of a private company (other than an offer to which paragraph (5) applies) is to be regarded (unless the contrary is proved) as being a domestic concern of the persons making and receiving it if—

(a) it is made to—

(i) an existing member of the company making the offer;

(ii) an existing employee of that company;

(iii) the[F41 surviving spouse or surviving civil partner] of a person who was a member or employee of that company;

(iv) a member of the family of a person who is or was a member or employee of that company; or

(v) an existing debenture holder; or

(b) it is an offer to subscribe for shares or debentures to be held under an employee's share scheme.

(4) Paragraph (5) applies to an offer—

(a) which falls within sub-paragraph (a) or (b) of paragraph (3); but

(b) which is made on terms which permit the person to whom it is made to renounce his right to the allotment of shares or issue of debentures.

(5) The offer is to be regarded (unless the contrary is proved) as being a domestic concern of the persons making and receiving it if the terms are such that the right may be renounced only in favour—

(a) of any person mentioned in paragraph (3)(a); or

(b) in the case of an employee's share scheme, of a person entitled to hold shares or debentures under the scheme.

(6) For the purposes of paragraph (3)(a)(iv), the members of a person's family are—

(a) the person's spouse[F41 or civil partner] and children (including step-children) and their descendants, and

(b) any trustee (acting in his capacity as such) of a trust the principal beneficiary of which is the person him or herself or of any of those relatives.

(7) Where an application has been made to the competent authority in any EEA State for the admission of any securities to official listing, then an offer of those securities for subscription or sale to a person whose ordinary business it is to buy or sell shares or debentures (whether as principal or agent) is not to be regarded as an offer to the public for the purposes of this Part.

(8) For the purposes of paragraph (7)—

(a) “competent authority” means a competent authority appointed for the purposes of the Council Directive of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities; and

(b) “official listing” means official listing pursuant to that directive.]

F39 Arts. 10A-10C inserted by S.I. 2001/3649, art. 43

F40 SI 2004/355

F41 2004 c.33

F42 Meaning of “banking company” N.I.

10B—(1) Subject to paragraph (2), "banking company" means a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits.

(2) A banking company does not include—

(a) a person who is not a company, and

(b) a person who has permission to accept deposits only for the purpose of carrying on another regulated activity in accordance with that permission.

(3) This Article must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

(c) Schedule 2 to that Act.

F42 Arts. 10A-10C inserted by S.I. 2001/3649, art. 43

F43 Meaning of “insurance company” and “authorised insurance company” N.I.

10C—(1) For the purposes of this Order, "insurance company" has the meaning given in paragraph (2) and "authorised insurance company" has the meaning given in paragraph (4).

(2) Subject to paragraph (3), "insurance company" means a person (whether incorporated or not)—

(a) who has permission under Part 4 of the Financial Services and Markets Act 2000 to effect or carry out contracts of insurance;

(b) who carries on insurance market activity; or

(c) who may effect or carry out contracts of insurance under which the benefits provided by that person are exclusively or primarily benefits in kind in the event of accident to or breakdown of a vehicle, and does not fall within sub-paragraph (a).

(3) An insurance company does not include a friendly society, within the meaning of section 116 of the Friendly Societies Act 1992.

(4) An “authorised insurance company” means a person falling within sub-paragraph (a) of paragraph (2).

(5) References in this Article to contracts of insurance and the effecting or carrying out of such contracts must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

(c) Schedule 2 to that Act.]

F43 Arts. 10A-10C inserted by S.I. 2001/3649, art. 43

“Employees' share scheme” N.I.

11.  For the purposes of this Order, an employees' share scheme is a scheme for encouraging or facilitating the holding of shares or debentures in a company by or for the benefit of—

(a) the bona fide employees or former employees of the company, the company's subsidiary or holding company or a subsidiary of the company's holding company, or

(b) the[F44 spouses, civil partners, surviving spouses, surviving civil partners] or children, step-children or adopted children under the age of 18 of such employees or former employees.

F44 2004 c.33