Part XI Company administration and procedure
Chapter I Company Identification
C1348 Company name to appear outside place of business.
1
Every company shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position and in letters easily legible.
2
If a company does not paint or affix its name as required above, the company and every officer of it who is in default is liable to a fine; and if a company does not keep its name painted or affixed as so required, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
C2349 Company’s name to appear in its correspondence, etc.
1
Every company shall have its name mentioned in legible characters—
a
in all business letters F31and order forms of the company,
b
in all its notices and other official publications,
F32ba
on all its websites,
c
in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and
d
in all its bills of parcels, invoices, receipts and letters of credit.
C32
If a company fails to comply with subsection (1) it is liable to a fine.
C33
If an officer of a company or a person on its behalf—
a
F35aa
causes or authorises the appearance of a website of the company on which the company's name is not so mentioned, or
b
issues or authorises the issue of any bill of parcels, invoice, receipt or letter of credit of the company in which its name is not so mentioned,
he is liable to a fine.
C34
If an officer of a company or a person on its behalf signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods in which the company’s name is not mentioned as required by subsection (1), he is liable to a fine; and he is further personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount of it (unless it is duly paid by the company).
F365
References in this section to a document of any type are to a document of that type in hard copy, electronic or any other form.
C4350 Company seal.
F371
A company which has a common seal shall have its name engraved in legible characters on the seal; and if it fails to comply with this subsection it is liable to a fine.
2
If an officer of a company or a person on its behalf uses or authorises the use of any seal purporting to be a seal of the company on which its name is not engraved as required by subsection (1), he is liable to a fine.
C5351 Particulars in correspondence, etc.
C61
Every company shall have the following particulars mentioned in legible characters in all business letters and order forms of the company F41, and on all the company's websites, , that is to say—
a
the company’s place of registration and the number with which it is registered,
b
the address of its registered office,
c
in the case of an investment company (as defined in section 266), the fact that it is such a company, and
d
in the case of a limited company exempt from the obligation to use the word “limited” as part of its name F40under section 30 or a community interest company which is not a public company , the fact that it is a limited company.
F42C62
If in the case of a company having a share capital there is a reference to the amount of share capital—
a
on the stationery used for any such letters,
b
on the company's order forms, or
c
on any of the company's websites,
the reference must be to paid-up share capital.
F383
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F384
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
As to contraventions of this section, the following applies—
C6a
if a company fails to comply with subsection (1) or (2), it is liable to a fine,
b
if an officer of a company or a person on its behalf issues or authorises the issue of any business letter or order form not complying with those subsections, he is liable to a fine, F39. . .
F43ba
if an officer of a company or a person on its behalf causes or authorises the appearance of a website not complying with those subsections, he is liable to a fine.
F39c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F446
References in this section to a document of any type are to a document of that type in hard copy, electronic or any other form.
Chapter II Register of Members
C7C8C9C10352 Obligation to keep and enter up register.
1
Every company shall keep a register of its members and enter in it the particulars required by this section.
2
There shall be entered in the register—
a
the names and addresses of the members;
b
the date on which each person was registered as a member; and
c
the date at which any person ceased to be a member.
3
The following applies in the case of a company having a share capital—
a
with the names and addresses of the members there shall be entered a statement—
i
of the shares held by each member, distinguishing each share by its number (so long as the share has a number) and, where the company has more than one class of issued shares, by its class, and
ii
of the amount paid or agreed to be considered as paid on the shares of each member;
b
where the company has converted any of its shares into stock and given notice of the conversion to the registrar of companies, the register shall show the amount and class of stock held by each member, instead of the amount of shares and the particulars relating to shares specified in paragraph (a).
F453A
Where a company purchases one or more of its own shares in circumstances in which section 162A applies—
a
the requirements of subsection (2) and (3) must be complied with unless the company cancels all of the shares forthwith after the purchase in accordance with section 162D(1), but
b
any share which is so cancelled must be disregarded for the purposes of subsection (3).
4
In the case of a company which does not have a share capital but has more than one class of members, there shall be entered in the register, with the names and addresses of the members, the class to which each member belongs.
C11C12C135
If a company makes default in complying with this section, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
6
An entry relating to a former member of the company may be removed from the register after the expiration of 20 years from the date on which he ceased to be a member.
7
Liability incurred by a company from the making or deletion of an entry in its register of members, or from a failure to make or delete any such entry, is not enforceable more than 20 years after the date on which the entry was made or deleted or, in the case of any such failure, the failure first occurred.
This is without prejudice to any lesser period of limitation.
C14352AF46Statement that company has only one member
1
If the number of members of a private company limited by shares or by guarantee falls to one there shall upon the occurrence of that event be entered in the company’s register of members with the name and address of the sole member—
i
a statement that the company has only one member, and
ii
the date on which the company became a company having only one member.
2
If the membership of a private company limited by shares or by guarantee increases from one to two or more members there shall upon the occurrence of that event be entered in the company’s register of members, with the name and address of the person who was formerly the sole member, a statement that the company has ceased to have only one member together with the date on which that event occurred.
3
If a company makes default in complying with this section, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
C15353 Location of register.
C161
A company’s register of members shall be kept at its registered office, except that—
a
if the work of making it up is done at another office of the company, it may be kept there; and
b
if the company arranges with some other person for the making up of the register to be undertaken on its behalf by that other, it may be kept at the office of the other at which the work is done;
but it must not be kept, in the case of a company registered in England and Wales, at any place elsewhere than in England and Wales or, in the case of a company registered in Scotland, at any place elsewhere than in Scotland.
C162
Subject as follows, every company shall send notice in the prescribed form to the registrar of companies of the place where its register of members is kept, and of any change in that place.
3
The notice need not be sent if the register has, at all times since it came into existence (or, in the case of a register in existence on 1st July 1948, at all times since then) been kept at the company’s registered office.
C17C164
If a company makes default for 14 days in complying with subsection (2), the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
C18354 Index of members.
1
Every company having more than 50 members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within 14 days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.
2
The index shall in respect of each member contain a sufficient indication to enable the account of that member in the register to be readily found.
3
The index shall be at all times kept at the same place as the register of members.
4
If default is made in complying with this section, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
C19355 Entries in register in relation to share warrants.
1
On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered in it as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely—
a
the fact of the issue of the warrant;
b
a statement of the shares included in the warrant, distinguishing each share by its number so long as the share has a number; and
c
the date of the issue of the warrant.
2
Subject to the company’s articles, the bearer of a share warrant is entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members.
3
The company is responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares specified in it without the warrant being surrendered and cancelled.
4
Until the warrant is surrendered, the particulars specified in subsection (1) are deemed to be those required by this Act to be entered in the register of members; and, on the surrender, the date of the surrender must be entered.
5
Except as provided by section 291(2) (director’s share qualification), the bearer of a share warrant may, if the articles of the company so provide, be deemed a member of the company within the meaning of this Act, either to the full extent or for any purposes defined in the articles.
356 Inspection of register and index.
F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C20C21357 Non-compliance with ss. 353, 354, 356; agent’s default.
Where under section 353(1)(b), the register of members is kept at the office of some person other than the company, and by reason of any default of his the company fails to comply with—
section 353(2) (notice to registrar),
section 354(3) (index to be kept with register), or
F47. . .
or with any requirement of this Act as to the production of the register, that other person is liable to the same penalties as if he were an officer of the company who was in default F47. . .
C22358 Power to close register.
A company may, on giving notice by advertisement in a newspaper circulating in the district in which the company’s registered office is situated, close the register of members for any time or times not exceeding in the whole 30 days in each year.
C23C24359 Power of court to rectify register.
1
If—
C25a
the name of any person is, without sufficient cause, entered in or omitted from a company’s register of members, or
b
default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member,
the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.
C262
The court may either refuse the application or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved.
C263
On such an application the court may decide any question relating to the title of a person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.
C264
In the case of a company required by this Act to send a list of its members to the registrar of companies, the court, when making an order for rectification of the register, shall by its order direct notice of the rectification to be given to the registrar.
C27360 Trusts not to be entered on register in England and Wales.
No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar, in the case of companies registered in England and Wales.
C28361 Register to be evidence.
The register of members is prima facie evidence of any matters which are by this Act directed or authorised to be inserted in it.
362 Overseas branch registers.
1
A company having a share capital whose objects comprise the transaction of business in any of the countries or territories specified in Part I of Schedule 14 to this Act may cause to be kept in any such country or territory in which it transacts business a branch register of members resident in that country or territory.
2
Such a branch register is to be known as an “overseas branch register”; and—
a
any dominion register kept by a company under section 119 of the M1Companies Act 1948 is to become known as an overseas branch register of the company;
b
where any Act or instrument (including in particular a company’s articles) refers to a company’s dominion register, that reference is to be read (unless the context otherwise requires) as being to an overseas branch register kept under this section; and
c
references to a colonial register occurring in articles registered before 1st November 1929 are to be read as referring to an overseas branch register.
3
Part II of Schedule 14 has effect with respect to overseas branch registers kept under this section; and Part III of the Schedule enables corresponding facilities in Great Britain to be accorded to companies incorporated in other parts of the world.
4
The M2Foreign Jurisdiction Act 1890 has effect as if subsection (1) of this section, and Part II of Schedule 14, were included among the enactments which by virtue of section 5 of that Act may be applied by Order in Council to foreign countries in which for the time being Her Majesty has jurisdiction.
5
Her Majesty may by Order in Council direct that subsection (1) above and Part II of Schedule 14 shall extend, with such exceptions, modifications or adaptations (if any) as may be specified in the Order, to any territories under Her Majesty’s protection to which those provisions cannot be extended under the Foreign Jurisdiction Act 1890.
F48C29Chapter III Annual Return
Chapter III (ss. 363–365) excluded by S.I. 1990/1707, art. 5(4)(7)
C31C32363 Duty to deliver annual returns. C30
1
Every company shall deliver to the registrar successive annual returns each of which is made up to a date not later than the date which is from time to time the company’s “return date”, that is—
a
the anniversary of the company’s incorporation, or
b
if the company’s last return delivered in accordance with this Chapter was made up to a different date, the anniversary of that date.
2
Each return shall—
a
be in the prescribed form,
b
contain the information required by or under the following provisions of this Chapter, and
c
be signed by a director or the secretary of the company;
and it shall be delivered to the registrar within 28 days after the date to which it is made up.
3
If a company fails to deliver an annual return in accordance with this Chapter before the end of the period of 28 days after a return date, the company is guilty of an offence and liable to a fine and, in the case of continued contravention, to a daily default fine.
The contravention continues until such time as an annual return made up to that return date and complying with the requirements of subsection (2) (except as to date of delivery) is delivered by the company to the registrar.
4
Where a company is guilty of an offence under subsection (3), every director or secretary of the company is similarly liable unless he shows that he took all reasonable steps to avoid the commission or continuation of the offence.
5
The references in this section to a return being delivered “in accordance with this Chapter” are—
a
in relation to a return made F49on or after 1st October 1990, to a return with respect to which all the requirements of subsection (2) are complied with;
b
in relation to a return made before F501st October 1990, to a return with respect to which the formal and substantive requirements of this Chapter as it then had effect were complied with, whether or not the return was delivered in time.
C34C35364F51 Contents of annual return: general. C33
1
Every annual return shall state the date to which it is made up and shall contain the following information—
a
the address of the company’s registered office;
b
the type of company it is and its principal business activities;
c
the name and address of the company secretary;
d
the name and address of every director of the company;
e
in the case of each individual director—
i
his nationality, date of birth and business occupation, F52. . .
F52ii
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F53f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
if the register of members is not kept at the company’s registered office, the address of the place where it is kept;
h
if any register of debenture holders (or a duplicate of any such register or a part of it) is not kept at the company’s registered office, the address of the place where it is kept;
F54i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
The information as to the company’s type shall be given by reference to the classification scheme prescribed for the purposes of this section.
3
The information as to the company’s principal business activities may be given by reference to one or more categories of any prescribed system of classifying business activities.
4
A person’s “name” and “address” mean, respectively—
a
in the case of an individual, his Christian name (or other forename) and surname and his usual residential address;
b
in the case of a corporation or Scottish firm, its corporate or firm name and its registered or principal office.
5
In the case of a peer, or an individual usually known by a title, the title may be stated instead of his Christian name (or other forename) and surname or in addition to either or both of them.
6
Where all the partners in a firm are joint secretaries, the name and principal office of the firm may be stated instead of the names and addresses of the partners.
C36364AF55 Contents of annual return: particulars of share capital and shareholders.
1
The annual return of a company having a share capital shall contain the following information with respect to its share capital and members.
2
The return shall state the total number of issued shares of the company at the date to which the return is made up and the aggregate nominal value of those shares.
3
The return shall state with respect to each class of shares in the company—
a
the nature of the class, and
b
the total number and aggregate nominal value of issued shares of that class at the date to which the return is made up.
4
The return shall contain a list of the names and addresses of every person who—
a
is a member of the company on the date to which the return is made up, or
b
has ceased to be a member of the company since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company);
and if the names are not arranged in alphabetical order the return shall have annexed to it an index sufficient to enable the name of any person in the list to be easily found.
5
The return shall also state—
a
the number of shares of each class held by each member of the company at the date to which the return is made up, and
b
the number of shares of each class transferred since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company) by each member or person who has ceased to be a member, and the dates of registration of the transfers.
6
The return may, if either of the two immediately preceding returns has given the full particulars required by subsections (4) and (5), give only such particulars as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred since that date.
7
Subsections (4) and (5) do not require the inclusion of particulars entered in an overseas branch register if copies of those entries have not been received at the company’s registered office by the date to which the return is made up.
Those particulars shall be included in the company’s next annual return after they are received.
8
Where the company has converted any of its shares into stock, the return shall give the corresponding information in relation to that stock, stating the amount of stock instead of the number or nominal value of shares.
364BContents of annual return: information about shareholders: non-traded companies
1
The annual return of a company that was a non-traded company throughout the return period must also contain the following information.
2
The return must contain a list of the names of every person who was a member of the company at any time during the return period. If the names are not arranged in alphabetical order the return must have annexed to it an index sufficient to enable the name of any person in the list to be easily found.
3
The return must also state—
a
the number of shares of each class held at the end of the date to which the return is made up by each person who was a member of the company at that time,
b
the number of shares of each class transferred during the return period by or to each person who was a member of the company at any time during that period, and
c
the dates of registration of those transfers.
4
If either of the two immediately preceding returns has given the full particulars required by subsections (2) and (3), the return need only give such particulars as relate—
a
to persons who became, or ceased to be, members during the return period, and
b
to shares transferred during that period.
5
Subsections (2) and (3) do not require the inclusion of particulars entered in an overseas branch register if copies of those entries have not been received at the company's registered office by the date to which the return is made up. Those particulars must be included in the company's next annual return after they are received.
364CContents of annual return: information about shareholders: traded companies
1
The annual return of a company that was a traded company at any time during the return period must also contain the following information.
2
The return must contain a list of the names and addresses of every person who held at least 5% of the issued shares of any class of the company at any time during the return period. If the names are not arranged in alphabetical order the return must have annexed to it an index sufficient to enable the name of any person in the list to be easily found.
3
The return must also state—
a
the number of shares of each class held at the end of the date to which the return is made up by each person who held at least 5% of the issued shares of any class of the company at that time,
b
the number of shares of each class transferred during the return period by or to each person who held at least 5% of the issued shares of any class of the company at any time during the return period, and
c
the dates of registration of those transfers.
4
If either of the two immediately preceding returns has given the full particulars required by subsections (2) and (3), the return need only give such particulars as relate—
a
to persons who came to hold, or ceased to hold, at least 5% of the issued shares of any class of the company during the return period, and
b
to shares transferred during that period.
5
Subsections (2) and (3) do not require the inclusion of particulars entered in an overseas branch register if copies of those entries have not been received at the company's registered office by the date to which the return is made up. Those particulars must be included in the company's next annual return after they are received.
364DContents of annual return: information about shareholders: supplementary
1
In sections 364, 364B and 364C—
“non-traded company” means a company none of whose shares are shares admitted to trading on a regulated market (so that “traded company” means a company any of whose shares are shares admitted to trading on a regulated market);
“regulated market” means a market which appears on the list drawn up by an EEA State pursuant to Article 47 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments F57; and
“return period”, in relation to an annual return, means the period beginning immediately after the date to which the last return was made up (or, in the case of the first return, with the incorporation of the company) and ending with the date to which the return is made up.
2
Where a company has converted any of its shares into stock, the return must give information in relation to that stock corresponding to that required by section 364B or 364C (as the case may be) in relation to shares of the company, stating the amount of stock instead of the number of shares.
C38365F56 Supplementary provisions: regulations and interpretation. C37
1
The Secretary of State may by regulations make further provision as to the information to be given in a company’s annual return, which may amend or repeal the provisions of sections 364 and 364A.
2
Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliamant.
3
For the purposes of this Chapter, except section 363(2)(c) (signature of annual return), a shadow director shall be deemed to be a director.
Chapter IV Meetings and Resolutions
Meetings
366 Annual general meeting.
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
366A Election by private company to dispense with annual general meetings.
F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
367 Secretary of State’s power to call meeting in default.
F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
368 Extraordinary general meeting on members’ requisition.
F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
369 Length of notice for calling meetings.
F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
370 General provisions as to meetings and votes.
F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
370AQuorum at meetings of the sole member
F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
371 Power of court to order meeting.
F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
372 Proxies.
F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
373 Right to demand a poll.
F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
374 Voting on a poll.
F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
375 Representation of corporations at meetings.
F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Resolutions
376 Circulation of members’ resolutions.
F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
377 In certain cases, compliance with s. 376 not required.
F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
378 Extraordinary and special resolutions.
F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
379 Resolution requiring special notice.
F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
379AF58 Elective resolution of private company.
1
An election by a private company for the purposes of—
a
section 80A (election as to duration of authority to allot shares),
b
F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
shall be made by resolution of the company in general meeting in accordance with this section.
Such a resolution is referred to in this Act as an “elective resolution”.
2
An elective resolution is not effective unless—
a
at least 21 days’ notice in writing is given of the meeting, stating that an elective resolution is to be proposed and stating the terms of the resolution, and
b
the resolution is agreed to at the meeting, in person or by proxy, by all the members entitled to attend and vote at the meeting.
F592A
An elective resolution is effective notwithstanding the fact that less than 21 days’ notice in writing of the meeting is given if all the members entitled to attend and vote at the meeting so agree.
2B
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2C
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2D
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2E
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2F
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The company may revoke an elective resolution by passing an ordinary resolution to that effect.
4
An elective resolution shall cease to have effect if the company is re-registered as a public company.
5
An elective resolution may be passed or revoked in accordance with this section, and the provisions referred to in F60subsections (1) and (2B) to (2E) have effect, notwithstanding any contrary provision in the company’s articles of association.
5A
F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C39380 Registration, etc. of resolutions and agreements.
1
A copy of every resolution or agreement to which this section applies shall, within 15 days after it is passed or made, be forwarded to the registrar of companies and recorded by him; and it must be either a printed copy or else a copy in some other form approved by the registrar.
2
Where articles have been registered, a copy of F66every resolution or agreement to which Chapter 3 of Part 3 of the Companies Act 2006 applies (resolutions and agreements affecting a company's constitution) and which is for the time being in force shall be embodied in or annexed to every copy of the articles issued after the passing of the resolution or the making of the agreement.
3
Where articles have not been registered, a printed copy of every such resolution or agreement shall be forwarded to any member at his request on payment of 5 pence or such less sum as the company may direct.
4
This section applies to—
a
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
extraordinary resolutions;
F63bb
an elective resolution or a resolution revoking such a resolution;
c
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
h
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
j
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
k
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
m
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F654ZA
This section does not, despite paragraphs (a) to (c) of subsection (4), apply to any resolution of a company which is—
a
registered as a company in Scotland, and
b
entered in the Scottish Charity Register,
where that resolution is of either of the types mentioned in section 56(5) of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).
F644A
For the purposes of this section, references to a member of a company do not include the company itself where it is such a member by virtue only of its holding shares as treasury shares, and accordingly, in such circumstances, the company is not, for those purposes, to be treated as a member of any class of the company’s shareholders.
5
If a company fails to comply with subsection (1), the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
C406
If a company fails to comply with subsection (2) or (3), the company and every officer of it who is in default is liable to a fine.
7
For purposes of subsections (5) and (6), a liquidator of a company is deemed an officer of it.
381 Resolution passed at adjourned meeting.
F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Written resolutions of private companies
381A Written resolutions of private companies.
F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
381B Duty to notify auditors of proposed written resolution
F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
381C Written resolutions: supplementary provisions.
F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Records of proceedings
382 Minutes of meetings.
F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
382A Recording of written resolutions.
F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
382BRecording of decisions by the sole member
F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
383 Inspection of minute books.
F25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F29 Appointment of auditors
New ss. 384–388A inserted (subject to the savings and transitional provisions in S.I. 1990/355, arts. 4, 10, Sch. 4) by Companies Act 1989 (c. 40, SIF 27), ss. 118, 119(1), 213(2), (as part of the text inserted to replace Chapter V as mentioned in s. 118 of the 1989 Act)
C42384F69 Duty to appoint auditors. C41
1
2
Auditors shall be appointed in accordance with section 385 (appointment at general meeting at which accounts are laid), F71. . . .
3
References in this Chapter to the end of the time for appointing auditors are to the end of the time within which an appointment must be made under section 385(2) F72. . .
4
F73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C43385F75F74 Appointment at general meeting at which accounts laid.
1
This section applies to every public company F76. . . .
2
The company shall, at each general meeting at which accounts are laid, appoint an auditor or auditors to hold office from the conclusion of that meeting until the conclusion of the next general meeting at which accounts are laid.
3
The first auditors of the company may be appointed by the directors at any time before the first general meeting of the company at which accounts are laid; and auditors so appointed shall hold office until the conclusion of that meeting.
4
If the directors fail to exercise their powers under subsection (3), the powers may be exercised by the company in general meeting.
385A Appointment by private company which is not obliged to lay accounts.
F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
386 Election by private company to dispense with annual appointment.
F27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C44387F78F77 Appointment by Secretary of State in default of appointment by company.
1
F79If in the case of a public company no auditors are appointed, re-appointed or deemed to be re-appointed before the end of the time for appointing auditors, the Secretary of State may appoint a person to fill the vacancy.
2
In such a case the company shall within one week of the end of the time for appointing auditors give notice to the Secretary of State of his power having become exercisable.
If a company fails to give the notice required by this subsection, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.
C45388F81F80 Filling of casual vacancies.
1
The directors F82of a public company , or the company in general meeting, may fill a casual vacancy in the office of auditor.
2
While such a vacancy continues, any surviving or continuing auditor or auditors may continue to act.
3
Special notice is required for a resolution at a general meeting of F83a public company—
a
filling a casual vacancy in the office of auditor, or
b
re-appointing as auditor a retiring auditor who was appointed by the directors to fill a casual vacancy.
4
On receipt of notice of such an intended resolution the company shall forthwith send a copy of it—
a
to the person proposed to be appointed, and
b
if the casual vacancy was caused by the resignation of an auditor, to the auditor who resigned.
C46388AF86F84 Certain companies exempt from obligation to appoint auditors
1
2
The following provisions apply if F88a public company which has been exempt from those provisions ceases to be so exempt.
3
Where section 385 applies (appointment at general meeting at which accounts are laid), the directors may appoint auditors at any time before the next meeting of the company at which accounts are to be laid; and auditors so appointed shall hold office until the conclusion of that meeting.
4
F89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
If the directors fail to exercise their powers under subsection (3) F90. . . , the powers may be exercised by the company in general meeting.
F28389. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rights of auditors
F91C47C48389A Rights to information.
1
An auditor of a company—
a
has a right of access at all times to the company’s books, accounts and vouchers (in whatever form they are held), and
b
may require any of the persons mentioned in subsection (2) to provide him with such information or explanations as he thinks necessary for the performance of his duties as auditor.
2
Those persons are—
a
any officer or employee of the company;
b
any person holding or accountable for any of the company’s books, accounts or vouchers;
c
any subsidiary undertaking of the company which is a body corporate incorporated in Great Britain;
d
any officer, employee or auditor of any such subsidiary undertaking or any person holding or accountable for any books, accounts or vouchers of any such subsidiary undertaking;
e
any person who fell within any of paragraphs (a) to (d) at a time to which the information or explanations required by the auditor relates or relate.
3
Where a parent company has a subsidiary undertaking which is not a body corporate incorporated in Great Britain, the auditor of the parent company may require it to obtain from any of the persons mentioned in subsection (4) such information or explanations as he may reasonably require for the purposes of his duties as auditor.
4
Those persons are—
a
the undertaking;
b
any officer, employee or auditor of the undertaking;
c
any person holding or accountable for any of the undertaking’s books, accounts or vouchers;
d
any person who fell within paragraph (b) or (c) at a time to which the information or explanations relates or relate.
5
If so required, the parent company must take all such steps as are reasonably open to it to obtain the information or explanations from the person within subsection (4) from whom the auditor has required the company to obtain the information or explanations.
6
A statement made by a person in response to a requirement under subsection (1)(b) or (3) may not be used in evidence against him in any criminal proceedings except proceedings for an offence under section 389B.
7
Nothing in this section or section 389B compels any person to disclose information in respect of which in an action in the High Court a claim to legal professional privilege, or in an action in the Court of Session a claim to confidentiality of communications, could be maintained.
C51389BOffences relating to the provision of information to auditors
1
If a person knowingly or recklessly makes to an auditor of a company a statement (oral or written) that—
a
conveys or purports to convey any information or explanations which the auditor requires, or is entitled to require, under section 389A(1)(b), and
b
is misleading, false or deceptive in a material particular,
the person is guilty of an offence and liable to imprisonment or a fine, or both.
2
A person who fails to comply with a requirement under section 389A(1)(b) without delay is guilty of an offence and is liable to a fine.
3
However, it is a defence for a person charged with an offence under subsection (2) to prove that it was not reasonably practicable for him to provide the required information or explanations.
4
If a company fails to comply with section 389A(5), the company and every officer of it who is in default is guilty of an offence and liable to a fine.
5
Nothing in this section affects any right of an auditor to apply for an injunction to enforce any of his rights under section 389A.
C50390F92 Right to attend company meetings, &c. C49
1
A company’s auditors are entitled—
a
to receive all notices of, and other communications relating to, any general meeting which a member of the company is entitled to receive;
b
to attend any general meeting of the company; and
c
to be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as auditors.
1A
F94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In relation to a written resolution proposed to be agreed to by a private company F95. . . , the company’s auditors are entitled—
a
to receive all such communications relating to the resolution as, by virtue of any provision of F96Chapter 2 of Part 13 of the Companies Act 2006 , are required to be supplied to a member of the company,
F93b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The right to attend or be heard at a meeting is exercisable in the case of a body corporate or partnership by an individual authorised by it in writing to act as its representative at the meeting.
Remuneration of auditors
C52390A Remuneration of auditors.
1
The remuneration of auditors appointed by the company in general meeting shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine.
2
The remuneration of auditors appointed by the directors or the Secretary of State shall be fixed by the directors or the Secretary of State, as the case may be.
3
F97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
For the purposes of this section “remuneration” includes sums paid in respect of expenses.
5
This section applies in relation to benefits in kind as to F98payments of money.
C53C54390BF99 Disclosure of services provided by auditors or associates and related remuneration
1
The Secretary of State may make provision by regulations for securing the disclosure of—
a
the nature of any services provided for a company by the company’s auditors (whether in their capacity as such or otherwise) or by their associates;
b
the amount of any remuneration received or receivable by a company’s auditors, or their associates, in respect of any services within paragraph (a).
2
The regulations may provide—
a
for disclosure of the nature of any services provided to be made by reference to any class or description of services specified in the regulations (or any combination of services, however described);
b
for the disclosure of amounts of remuneration received or receivable in respect of services of any class or description specified in the regulations (or any combination of services, however described);
c
for the disclosure of separate amounts so received or receivable by the company’s auditors or any of their associates, or of aggregate amounts so received or receivable by all or any of those persons.
3
The regulations may—
a
provide that “remuneration” includes sums paid in respect of expenses;
b
apply to benefits in kind as well as to payments of money, and require the disclosure of the nature of any such benefits and their estimated money value;
c
apply to services provided for associates of a company as well as to those provided for a company;
d
define “associate” in relation to an auditor and a company respectively.
4
The regulations may provide that any disclosure required by the regulations is to be made—
a
in a note to the company’s annual accounts (in the case of its individual accounts) or in such manner as is specified in the regulations (in the case of group accounts),
b
in the directors' report required by section 234, or
c
in the auditors' report under section 235.
5
If the regulations provide that any such disclosure is to be made as mentioned in subsection (4)(a) or (b), the regulations may—
a
require the auditors to supply the directors of the company with any information necessary to enable the disclosure to be made;
b
provide for any provision within subsection (6) to apply in relation to a failure to make the disclosure as it applies in relation to a failure to comply with a requirement of this Act or (as the case may be) a provision of Part 7.
6
The provisions are—
a
sections 233(5) and 234(5); and
b
any provision of sections 245 to 245C.
7
The regulations may make different provision for different cases.
8
Nothing in subsections (2) to (7) affects the generality of subsection (1).
9
Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Removal, resignation, &c. of auditors
C56391 Removal of auditors. C55
1
A company may by ordinary resolution at any time remove an auditor from office, notwithstanding anything in any agreement between it and him.
2
Where a resolution removing an auditor is passed at a general meeting of a company, the company shall within 14 days give notice of that fact in the prescribed form to the registrar.
If a company fails to give the notice required by this subsection, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.
3
Nothing in this section shall be taken as depriving a person removed under it of compensation or damages payable to him in respect of the termination of his appointment as auditor or of any appointment terminating with that as auditor.
4
An auditor of a company who has been removed has, notwithstanding his removal, the rights conferred by section 390 in relation to any general meeting of the company—
a
at which his term of office would otherwise have expired, or
b
at which it is proposed to fill the vacancy caused by his removal.
In such a case the references in that section to matters concerning the auditors as auditors shall be construed as references to matters concerning him as a former auditor.
C58391AF100 Rights of auditors who are removed or not re-appointed. C57
1
Special notice is required for a resolution at a general meeting of a company—
a
removing an auditor before the expiration of his term of office, or
b
appointing as auditor a person other than a retiring auditor.
2
On receipt of notice of such an intended resolution the company shall forthwith send a copy of it to the person proposed to be removed or, as the case may be, to the person proposed to be appointed and to the retiring auditor.
3
The auditor proposed to be removed or (as the case may be) the retiring auditor may make with respect to the intended resolution representations in writing to the company (not exceeding a reasonable length) and request their notification to members of the company.
4
The company shall (unless the representations are received by it too late for it to do so)—
a
in any notice of the resolution given to members of the company, state the fact of the representations having been made, and
b
send a copy of the representations to every member of the company to whom notice of the meeting is or has been sent.
5
If a copy of any such representations is not sent out as required because received too late or because of the company’s default, the auditor may (without prejudice to his right to be heard orally) require that the representations be read out at the meeting.
6
Copies of the representations need not be sent out and the representations need not be read at the meeting if, on the application either of the company or of any other person claiming to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company’s costs on the application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.
C60392F101 Resignation of auditors. C59
1
An auditor of a company may resign his office by depositing a notice in writing to that effect at the company’s registered office.
The notice is not effective unless it is accompanied by the statement required by section 394.
2
An effective notice of resignation operates to bring the auditor’s term of office to an end as of the date on which the notice is deposited or on such later date as may be specified in it.
3
The company shall within 14 days of the deposit of a notice of resignation send a copy of the notice to the registrar of companies.
If default is made in complying with this subsection, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, a daily default fine.
C62392AF102 Rights of resigning auditors. C61
1
This section applies where an auditor’s notice of resignation is accompanied by a statement of circumstances which he considers should be brought to the attention of members or creditors of the company.
2
He may deposit with the notice a signed requisition calling on the directors of the company forthwith duly to convene an extraordinary general meeting of the company for the purpose of receiving and considering such explanation of the circumstances connected with his resignation as he may wish to place before the meeting.
3
He may request the company to circulate to its members—
a
before the meeting convened on his requisition, or
b
before any general meeting at which his term of office would otherwise have expired or at which it is proposed to fill the vacancy caused by his resignation,
a statement in writing (not exceeding a reasonable length) of the circumstances connected with his resignation.
4
The company shall (unless the statement is received too late for it to comply)—
a
in any notice of the meeting given to members of the company, state the fact of the statement having been made, and
b
send a copy of the statement to every member of the company to whom notice of the meeting is or has been sent.
5
If the directors do not within 21 days from the date of the deposit of a requisition under this section proceed duly to convene a meeting for a day not more than 28 days after the date on which the notice convening the meeting is given, every director who failed to take all reasonable steps to secure that a meeting was convened as mentioned above is guilty of an offence and liable to a fine.
6
If a copy of the statement mentioned above is not sent out as required because received too late or because of the company’s default, the auditor may (without prejudice to his right to be heard orally) require that the statement be read out at the meeting.
7
Copies of a statement need not be sent out and the statement need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company’s costs on such an application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.
8
An auditor who has resigned has, notwithstanding his resignation, the rights conferred by section 390 in relation to any such general meeting of the company as is mentioned in subsection (3)(a) or (b).
In such a case the references in that section to matters concerning the auditors as auditors shall be construed as references to matters concerning him as a former auditor.
393 Termination of appointment of auditors not appointed annually.
F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C63394F103 Statement by person ceasing to hold office as auditor.
1
Where an auditor ceases for any reason to hold office, he shall deposit at the company’s registered office a statement of any circumstances connected with his ceasing to hold office which he considers should be brought to the attention of the members or creditors of the company or, if he considers that there are no such circumstances, a statement that there are none.
2
In the case of resignation, the statement shall be deposited along with the notice of resignation; in the case of failure to seek re-appointment, the statement shall be deposited not less than 14 days before the end of the time allowed for next appointing auditors; in any other case, the statement shall be deposited not later than the end of the period of 14 days beginning with the date on which he ceases to hold office.
3
If the statement is of circumstances which the auditor considers should be brought to the attention of the members or creditors of the company, the company shall within 14 days of the deposit of the statement either—
a
send a copy of it to every person who under section 238 is entitled to be sent copies of the accounts, or
b
apply to the court.
4
The company shall if it applies to the court notify the auditor of the application.
5
Unless the auditor receives notice of such an application before the end of the period of 21 days beginning with the day on which he deposited the statement, he shall within a further seven days send a copy of the statement to the registrar.
6
If the court is satisfied that the auditor is using the statement to secure needless publicity for defamatory matter—
a
it shall direct that copies of the statement need not be sent out, and
b
it may further order the company’s costs on the application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application;
and the company shall within 14 days of the court’s decision send to the persons mentioned in subsection (3)(a) a statement setting out the effect of the order.
7
If the court is not so satisfied, the company shall within 14 days of the court’s decision—
a
send copies of the statement to the persons mentioned in subsection (3)(a), and
b
notify the auditor of the court’s decision;
and the auditor shall within seven days of receiving such notice send a copy of the statement to the registrar.
C64394AF104 Offences of failing to comply with s. 394.
1
If a person ceasing to hold office as auditor fails to comply with section 394 he is guilty of an offence and liable to a fine.
2
In proceedings for an offence under subsection (1) it is a defence for the person charged to show that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
3
Sections 733 (liability of individuals for corporate default) and 734 (criminal proceedings against unincorporated bodies) apply to an offence under subsection (1).
4
If a company makes default in complying with section 394, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.
Chapter III (ss. 363–365) substituted (subject to the transitional and saving provisions in S.I. 1990/1707, arts. 4, 5) by Companies Act 1989 (c. 40, SIF 27), ss. 139(1), 213(2)