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Company Law Reform Bill [HL] (128-132)


Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 12 — Company secretaries

128

 

(a)   

must refuse the application, and

(b)   

may make any consequential order it considers appropriate.

(4)   

If the application is not refused under subsection (3)—

(a)   

the applicant must serve the application on the company,

(b)   

the court—

5

(i)   

may make an order requiring evidence to be produced by the

company, and

(ii)   

may adjourn the proceedings on the application to enable the

evidence to be obtained, and

(c)   

the company is entitled to take part in the further proceedings on the

10

application.

(5)   

On hearing the application, the court may—

(a)   

grant the application on such terms as it thinks fit,

(b)   

refuse the application, or

(c)   

adjourn the proceedings on the application and make such order as to

15

further procedure as it thinks fit.

Part 12

Company secretaries

General

270     

Private company not required to have secretary

20

(1)   

A private company is not required to have a secretary.

(2)   

In the case of a private company—

(a)   

anything authorised or required to be given or sent to, or served on, the

company by being sent to its secretary—

(i)   

may be given or sent to, or served on, the company itself, and

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(ii)   

if addressed to the secretary shall be treated as addressed to the

company; and

(b)   

anything else required or authorised to be done by or to the secretary

of the company may be done by or to—

(i)   

a director, or

30

(ii)   

a person authorised generally or specifically in that behalf by

the directors.

271     

Public company required to have secretary

   

A public company must have a secretary.

272     

Direction requiring public company to appoint secretary

35

(1)   

If it appears to the Secretary of State that a public company is in breach of

section 271 (requirement to have secretary), the Secretary of State may give the

company a direction under this section.

(2)   

The direction must state that the company appears to be in breach of that

section and specify—

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Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 12 — Company secretaries

129

 

(a)   

what the company must do in order to comply with the direction, and

(b)   

the period within which it must do so.

   

That period must be not less than one month or more than three months after

the date on which the direction is given.

(3)   

The direction must also inform the company of the consequences of failing to

5

comply.

(4)   

Where the company is in breach of section 271 it must comply with the

direction by—

(a)   

making the necessary appointment, and

(b)   

giving notice of it under section 276,

10

   

before the end of the period specified in the direction.

(5)   

If the company has already made the necessary appointment, it must comply

with the direction by giving notice of it under section 276 before the end of the

period specified in the direction.

(6)   

If a company fails to comply with a direction under this section, an offence is

15

committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

   

For this purpose a shadow director is treated as an officer of the company.

(7)   

A person guilty of an offence under this section is liable on summary

20

conviction to a fine not exceeding level 5 on the standard scale and, for

continued contravention, a daily default fine not exceeding one-tenth of level

5 on the standard scale.

Provisions applying to secretaries of public companies

273     

Qualifications of secretaries of public companies

25

(1)   

It is the duty of the directors of a public company to take all reasonable steps

to secure that the secretary (or each joint secretary) of the company—

(a)   

is a person who appears to them to have the requisite knowledge and

experience to discharge the functions of secretary of the company, and

(b)   

has one or more of the following qualifications.

30

(2)   

The qualifications are—

(a)   

that he has held the office of secretary of a public company for at least

three of the five years immediately preceding his appointment as

secretary;

(b)   

that he is a member of any of the bodies specified in subsection (3);

35

(c)   

that he is a barrister, advocate or solicitor called or admitted in any part

of the United Kingdom;

(d)   

that he is a person who, by virtue of his holding or having held any

other position or his being a member of any other body, appears to the

directors to be capable of discharging the functions of secretary of the

40

company.

(3)   

The bodies referred to in subsection (2)(b) are—

(a)   

the Institute of Chartered Accountants in England and Wales;

(b)   

the Institute of Chartered Accountants of Scotland;

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 12 — Company secretaries

130

 

(c)   

the Association of Chartered Certified Accountants;

(d)   

the Institute of Chartered Accountants in Ireland;

(e)   

the Institute of Chartered Secretaries and Administrators;

(f)   

the Chartered Institute of Management Accountants;

(g)   

the Chartered Institute of Public Finance and Accountancy.

5

274     

Discharge of functions where office vacant or secretary unable to act

   

Where in the case of a public company the office of secretary is vacant, or there

is for any other reason no secretary capable of acting, anything required or

authorised to be done by or to the secretary may be done—

(a)   

by or to an assistant or deputy secretary (if any), or

10

(b)   

if there is no assistant or deputy secretary or none capable of acting, by

or to any person authorised generally or specifically in that behalf by

the directors.

275     

Duty to keep register of secretaries

(1)   

A public company must keep a register of its secretaries.

15

(2)   

The register—

(a)   

must contain the required particulars (see sections 277 to 279) of the

person who is, or persons who are, the secretary or joint secretaries of

the company, and

(b)   

must be kept available for inspection at the company’s registered office.

20

(3)   

The register must be open to the inspection—

(a)   

of any member of the company without charge, and

(b)   

of any other person on payment of such fee as may be prescribed.

(4)   

If default is made in complying with subsection (1) or (2), or if an inspection

required under this section is refused, an offence is committed by—

25

(a)   

the company, and

(b)   

every officer of the company who is in default.

   

For this purpose a shadow director is treated as an officer of the company.

(5)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 5 on the standard scale and, for

30

continued contravention, a daily default fine not exceeding one-tenth of level

5 on the standard scale.

(6)   

In the case of a refusal of inspection of the register, the court may by order

compel an immediate inspection of it.

276     

Duty to notify registrar of changes

35

(1)   

A public company must, within the period of 14 days from the occurrence of—

(a)   

any change in its secretary, or

(b)   

any change in the particulars contained in its register of secretaries,

   

give notice to the registrar of the change and of the date on which it occurred.

(2)   

Notice of a person having become secretary, or one of joint secretaries, of the

40

company must be accompanied by a consent by that person to act in the

relevant capacity.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 12 — Company secretaries

131

 

(3)   

If default is made in complying with this section, an offence is committed by

every officer of the company who is in default.

   

For this purpose a shadow director is treated as an officer of the company.

(4)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 5 on the standard scale and, for

5

continued contravention, a daily default fine not exceeding one-tenth of level

5 on the standard scale.

Supplementary

277     

Particulars of secretaries to be registered: individuals

(1)   

A public company’s register of secretaries must contain the following

10

particulars in the case of an individual—

(a)   

name and any former name;

(b)   

address.

(2)   

For the purposes of this section “name” means a person’s Christian name (or

other forename) and surname, except that in the case of—

15

(a)   

a peer, or

(b)   

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.

(3)   

For the purposes of this section a “former name” means a name by which the

20

individual was formerly known for business purposes.

   

Where a person is or was formerly known by more than one such name, each

of them must be stated.

(4)   

It is not necessary for the register to contain particulars of a former name in the

following cases—

25

(a)   

in the case of a peer or an individual normally known by a British title,

where the name is one by which the person was known previous to the

adoption of or succession to the title;

(b)   

in the case of any person, where the former name—

(i)   

was changed or disused before the person attained the age of 18

30

years, or

(ii)   

has been changed or disused for 20 years or more.

(5)   

The address required to be stated in the register is a service address.

   

This may be stated to be “The company’s registered office”.

278     

Particulars of secretaries to be registered: corporate secretaries and firms

35

(1)   

A public company’s register of secretaries must contain the following

particulars in the case of a body corporate, or a firm that is a legal person under

the law by which it is governed—

(a)   

corporate or firm name;

(b)   

registered or principal office;

40

(c)   

in the case of an EEA company to which the First Company Law

Directive applies, particulars of—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 13 — Authorised signatories

132

 

(i)   

the register in which the company file mentioned in Article 3 of

that Directive is kept (including details of the relevant state),

and

(ii)   

the registration number in that register;

(d)   

in any other case, particulars of—

5

(i)   

the legal form of the company or firm and the law by which it is

governed, and

(ii)   

if applicable, the register in which it is entered (including details

of the state) and its registration number in that register.

(2)   

If all the partners in a firm are joint secretaries it is sufficient to state the

10

particulars that would be required if the firm were a legal person and the firm

had been appointed secretary.

279     

Particulars of secretaries to be registered: power to make regulations

(1)   

The Secretary of State may make provision by regulations amending—

section 277 (particulars of secretaries to be registered: individuals), or

15

section 278 (particulars of secretaries to be registered: corporate

secretaries and firms),

   

so as to add to or remove items from the particulars required to be contained

in a public company’s register of secretaries.

(2)   

Regulations under this section are subject to affirmative resolution procedure.

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280     

Acts done by person in dual capacity

   

In the case of a public company, a provision requiring or authorising a thing to

be done by or to a director and the secretary of a company is not satisfied by its

being done by or to the same person acting both as director and as, or in place

of, the secretary.

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Part 13

Authorised signatories

281     

Authorised signatories

(1)   

The following are authorised signatories in relation to a company—

(a)   

every director of the company;

30

(b)   

in the case of a public company, the secretary (or any joint secretary) of

the company;

(c)   

any person appointed as an authorised signatory under this Part.

(2)   

Every director, and every such secretary or person appointed as an authorised

signatory, is by virtue of his appointment authorised to sign documents of any

35

description on behalf of the company.

(3)   

The signature of any such person on behalf of the company is effective

notwithstanding that it is afterwards discovered—

(a)   

that there was a defect in his appointment,

(b)   

that he was not qualified to be appointed, or

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(c)   

that he had ceased to hold office.

 
 

 
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