|
| |
|
(2) | The conditions are that the company— |
| |
(a) | considering on reasonable grounds that statement of the name would |
| |
create or be likely to create a serious risk that the auditor or senior |
| |
statutory auditor, or any other person, would be subject to violence or |
| |
intimidation, has resolved that the name should not be stated, and |
| 5 |
(b) | has given notice of the resolution to the Secretary of State, stating— |
| |
(i) | the name and registered number of the company, |
| |
(ii) | the financial year of the company to which the report relates, |
| |
| |
(iii) | the name of the auditor and (where the auditor is a firm) the |
| 10 |
name of the person who signed the report as senior statutory |
| |
| |
Offences in connection with auditor’s report |
| |
497 | Offences in connection with auditor’s report |
| |
(1) | A person to whom this section applies commits an offence if he knowingly or |
| 15 |
recklessly causes a report under section 485 (auditor’s report on company’s |
| |
annual accounts) to include any matter that is misleading, false or deceptive in |
| |
| |
(2) | A person to whom this section applies commits an offence if he knowingly or |
| |
recklessly causes such a report to omit a statement required by— |
| 20 |
(a) | section 488(2)(b) (statement that company’s accounts do not agree with |
| |
accounting records and returns), |
| |
(b) | section 488(3) (statement that necessary information and explanations |
| |
| |
(c) | section 488(5) (statement that directors wrongly took advantage of |
| 25 |
exemption from obligation to prepare group accounts). |
| |
(3) | This section applies to— |
| |
(a) | where the auditor is an individual, that individual and any employee |
| |
or agent of his who is eligible for appointment as auditor of the |
| |
| 30 |
(b) | where the auditor is a firm, any director, member, employee or agent of |
| |
the firm who is eligible for appointment as auditor of the company. |
| |
(4) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| |
(b) | on summary conviction, to a fine not exceeding the statutory |
| 35 |
| |
498 | Guidance for regulatory and prosecuting authorities: England, Wales and |
| |
| |
(1) | The Secretary of State may issue guidance for the purpose of helping relevant |
| |
regulatory and prosecuting authorities to determine how they should carry out |
| 40 |
their functions in cases where behaviour occurs that— |
| |
(a) | appears to involve the commission of an offence under section 497 |
| |
(offences in connection with auditor’s report), and |
| |
(b) | has been, is being or may be investigated pursuant to arrangements— |
| |
|
| |
|
| |
|
(i) | under paragraph 15 of Schedule 10 (investigation of complaints |
| |
against auditors and supervisory bodies), or |
| |
(ii) | of a kind mentioned in paragraph 24 of that Schedule |
| |
(independent investigation for disciplinary purposes of public |
| |
| 5 |
(2) | The Secretary of State must obtain the consent of the Attorney General before |
| |
issuing any such guidance. |
| |
(3) | In this section “relevant regulatory and prosecuting authorities” means— |
| |
(a) | supervisory bodies within the meaning of Part 35 of this Act, |
| |
(b) | bodies to which the Secretary of State may make grants under section |
| 10 |
16(1) of the Companies (Audit, Investigations and Community |
| |
Enterprise) Act 2004 (c. 27) (bodies concerned with accounting |
| |
| |
(c) | the Director of the Serious Fraud Office, |
| |
(d) | the Director of Public Prosecutions or the Director of Public |
| 15 |
Prosecutions for Northern Ireland, and |
| |
(e) | the Secretary of State. |
| |
(4) | This section does not apply to Scotland. |
| |
499 | Guidance for regulatory authorities: Scotland |
| |
(1) | The Lord Advocate may issue guidance for the purpose of helping relevant |
| 20 |
regulatory authorities to determine how they should carry out their functions |
| |
in cases where behaviour occurs that— |
| |
(a) | appears to involve the commission of an offence under section 497 |
| |
(offences in connection with auditor’s report), and |
| |
(b) | has been, is being or may be investigated pursuant to arrangements— |
| 25 |
(i) | under paragraph 15 of Schedule 10 (investigation of complaints |
| |
against auditors and supervisory bodies), or |
| |
(ii) | of a kind mentioned in paragraph 24 of that Schedule |
| |
(independent investigation for disciplinary purposes of public |
| |
| 30 |
(2) | The Lord Advocate must consult the Secretary of State before issuing any such |
| |
| |
(3) | In this section “relevant regulatory authorities” means— |
| |
(a) | supervisory bodies within the meaning of Part 35 of this Act, |
| |
(b) | bodies to which the Secretary of State may make grants under section |
| 35 |
16(1) of the Companies (Audit, Investigations and Community |
| |
Enterprise) Act 2004 (bodies concerned with accounting standards etc), |
| |
| |
(c) | the Secretary of State. |
| |
(4) | This section applies only to Scotland. |
| 40 |
|
| |
|
| |
|
| |
Removal, resignation, etc of auditors |
| |
| |
500 | Resolution removing auditor from office |
| |
(1) | The members of a company may by ordinary resolution at any time remove an |
| 5 |
| |
(2) | This power is exercisable only in accordance with section 501 (special notice of |
| |
resolution to remove auditor). |
| |
(3) | Nothing in this section is to be taken as depriving the person removed of |
| |
compensation or damages payable to him in respect of the termination— |
| 10 |
(a) | of his appointment as auditor, or |
| |
(b) | of any appointment terminating with that as auditor. |
| |
(4) | An auditor may not be removed from office before the expiration of his term of |
| |
office except by resolution under this section. |
| |
501 | Special notice required for resolution removing auditor from office |
| 15 |
(1) | Special notice is required for a resolution at a general meeting of a company |
| |
removing an auditor from office. |
| |
(2) | On receipt of notice of such an intended resolution the company must |
| |
immediately send a copy of it to the person proposed to be removed. |
| |
(3) | The auditor proposed to be removed may make with respect to the intended |
| 20 |
resolution representations in writing to the company (not exceeding a |
| |
reasonable length) and request their notification to members of the company. |
| |
(4) | The company must (unless the representations are received by it too late for it |
| |
| |
(a) | in any notice of the resolution given to members of the company, state |
| 25 |
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 |
| 30 |
prejudice to his right to be heard orally) require that the representations be |
| |
| |
(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 auditor is |
| 35 |
using the provisions of this section to secure needless publicity for defamatory |
| |
| |
| The court may order the company’s costs (in Scotland, expenses) on the |
| |
application to be paid in whole or in part by the auditor, notwithstanding that |
| |
he is not a party to the application. |
| 40 |
|
| |
|
| |
|
502 | Notice to registrar of resolution removing auditor from office |
| |
(1) | Where a resolution is passed under section 500 (resolution removing auditor |
| |
from office), the company must give notice of that fact to the registrar within |
| |
| |
(2) | If a company fails to give the notice required by this section, an offence is |
| 5 |
| |
| |
(b) | every officer of it who is in default. |
| |
(3) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale and, for |
| 10 |
continued contravention, a daily default fine not exceeding one-tenth of level |
| |
| |
503 | Rights of auditor who has been removed from office |
| |
(1) | An auditor who has been removed by resolution under section 500 has, |
| |
notwithstanding his removal, the rights conferred by section 492(2) in relation |
| 15 |
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. |
| |
(2) | In such a case the references in that section to matters concerning the auditor |
| |
as auditor shall be construed as references to matters concerning him as a |
| 20 |
| |
Failure to re-appoint auditor |
| |
504 | Failure to re-appoint auditor: special procedure required for written |
| |
| |
(1) | This section applies where a resolution is proposed as a written resolution of a |
| 25 |
private company whose effect would be to appoint a person as auditor in place |
| |
of a person (the “outgoing auditor”) whose term of office has expired, or is to |
| |
expire, at the end of the period for appointing auditors. |
| |
(2) | The following provisions apply if— |
| |
(a) | no period for appointing auditors has ended since the outgoing auditor |
| 30 |
ceased to hold office, or |
| |
(b) | such a period has ended and an auditor or auditors should have been |
| |
| |
(3) | The company must send a copy of the proposed resolution to the person |
| |
proposed to be appointed and to the outgoing auditor. |
| 35 |
(4) | The outgoing auditor may, within 14 days after receiving the notice, make with |
| |
respect to the proposed resolution representations in writing to the company |
| |
(not exceeding a reasonable length) and request their circulation to members of |
| |
| |
(5) | The company must circulate the representations together with the copy or |
| 40 |
copies of the resolution circulated in accordance with section 274 (resolution |
| |
proposed by directors) or section 276 (resolution proposed by members). |
| |
|
| |
|
| |
|
(6) | Where subsection (5) applies— |
| |
(a) | the period allowed under section 276(3) for service of copies of the |
| |
proposed resolution is 28 days instead of 21 days, and |
| |
(b) | the provisions of section 276(6) and (7) (offences) apply in relation to a |
| |
failure to comply with that subsection as in relation to a default in |
| 5 |
complying with that section. |
| |
(7) | Copies of the representations need not be circulated if, on the application either |
| |
of the company or of any other person claiming to be aggrieved, the court is |
| |
satisfied that the auditor is using the provisions of this section to secure |
| |
needless publicity for defamatory matter. |
| 10 |
| The court may order the company’s costs (in Scotland, expenses) on the |
| |
application to be paid in whole or in part by the auditor, notwithstanding that |
| |
he is not a party to the application. |
| |
(8) | If any requirement of this section is not complied with, the resolution is |
| |
| 15 |
505 | Failure to re-appoint auditor: special notice required for resolution at general |
| |
| |
(1) | This section applies to a resolution at a general meeting of a company whose |
| |
effect would be to appoint a person as auditor in place of a person (the |
| |
“outgoing auditor”) whose term of office has ended, or is to end— |
| 20 |
(a) | in the case of a private company, at the end of the period for appointing |
| |
| |
(b) | in the case of a public company, at the end of the next accounts meeting. |
| |
(2) | Special notice is required of such a resolution if— |
| |
(a) | in the case of a private company— |
| 25 |
(i) | no period for appointing auditors has ended since the outgoing |
| |
auditor ceased to hold office, or |
| |
(ii) | such a period has ended and an auditor or auditors should have |
| |
been appointed but were not; |
| |
(b) | in the case of a public company— |
| 30 |
(i) | there has been no accounts meeting of the company since the |
| |
outgoing auditor ceased to hold office, or |
| |
(ii) | there has been an accounts meeting at which an auditor or |
| |
auditors should have been appointed but were not. |
| |
(3) | On receipt of notice of such an intended resolution the company shall |
| 35 |
forthwith send a copy of it to the person proposed to be appointed and to the |
| |
| |
(4) | The outgoing 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. |
| 40 |
(5) | The company must (unless the representations are received by it too late for it |
| |
| |
(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 |
| 45 |
whom notice of the meeting is or has been sent. |
| |
|
| |
|
| |
|
(6) | 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 outgoing auditor |
| |
may (without prejudice to his right to be heard orally) require that the |
| |
representations be read out at the meeting. |
| |
(7) | Copies of the representations need not be sent out and the representations need |
| 5 |
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 auditor is |
| |
using the provisions of this section to secure needless publicity for defamatory |
| |
| |
| The court may order the company’s costs (in Scotland, expenses) on the |
| 10 |
application to be paid in whole or in part by the outgoing auditor, |
| |
notwithstanding that he is not a party to the application. |
| |
| |
506 | Resignation of auditor |
| |
(1) | An auditor of a company may resign his office by depositing a notice in writing |
| 15 |
to that effect at the company’s registered office. |
| |
(2) | The notice is not effective unless it is accompanied by the statement required |
| |
| |
(3) | 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 |
| 20 |
as may be specified in it. |
| |
507 | Notice to registrar of resignation of auditor |
| |
(1) | Where an auditor resigns the company must within 14 days of the deposit of a |
| |
notice of resignation send a copy of the notice to the registrar of companies. |
| |
(2) | If default is made in complying with this section, an offence is committed by— |
| 25 |
| |
(b) | every officer of the company who is in default. |
| |
(3) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine and, for continued contravention, |
| |
a daily default fine not exceeding one-tenth of the statutory maximum; |
| 30 |
(b) | on summary conviction, to a fine not exceeding the statutory maximum |
| |
and, for continued contravention, a daily default fine not exceeding |
| |
one-tenth of the statutory maximum. |
| |
508 | Rights of resigning auditor |
| |
(1) | This section applies where an auditor’s notice of resignation is accompanied by |
| 35 |
a statement of the circumstances connected with his resignation (see section |
| |
| |
(2) | He may deposit with the notice a signed requisition calling on the directors of |
| |
the company forthwith duly to convene a general meeting of the company for |
| |
the purpose of receiving and considering such explanation of the |
| 40 |
circumstances connected with his resignation as he may wish to place before |
| |
| |
|
| |
|
| |
|
(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 |
| |
| 5 |
| a statement in writing (not exceeding a reasonable length) of the circumstances |
| |
connected with his resignation. |
| |
(4) | The company must (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 |
| 10 |
(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) | The directors must 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. |
| 15 |
(6) | If default is made in complying with subsection (5), every director who failed |
| |
to take all reasonable steps to secure that a meeting was convened commits an |
| |
| |
(7) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| 20 |
(b) | on summary conviction to a fine not exceeding the statutory maximum. |
| |
(8) | 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 |
| |
| 25 |
(9) | 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 auditor is |
| |
using the provisions of this section to secure needless publicity for defamatory |
| |
| 30 |
| The court may order the company’s costs (in Scotland, expenses) 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. |
| |
(10) | An auditor who has resigned has, notwithstanding his resignation, the rights |
| |
conferred by section 492(2) in relation to any such general meeting of the |
| 35 |
company as is mentioned in subsection (3)(a) or (b) above. |
| |
| In such a case the references in that section to matters concerning the auditor |
| |
as auditor shall be construed as references to matters concerning him as a |
| |
| |
Statement by auditor on ceasing to hold office |
| 40 |
509 | Statement by auditor to be deposited with company |
| |
(1) | Where an auditor of an unquoted company ceases for any reason to hold office, |
| |
he must deposit at the company’s registered office a statement of the |
| |
circumstances connected with his ceasing to hold office, unless he considers |
| |
that there are no circumstances in connection with his ceasing to hold office |
| 45 |
|
| |
|