Guernsey: New Companies Law - Company Secretaries

This memorandum has been prepared for the assistance of our clients in connection with the provisions relevant to company secretaries under the Companies (Guernsey) Law, 2008 (the "Companies Law"). It is intended to provide only a summary of the main legal and general principles and it is not intended to be comprehensive in scope. It is strongly recommended that you seek specific legal advice on such matters and we would be pleased to assist in this respect. A series of briefings on other specific aspects of Guernsey companies has been produced by Ogier and is available on our website www.ogier.com. Transitional provisions have also been made (a separate briefing addresses the operation of these).

The memorandum has been prepared on the basis of the law and practice in Guernsey as at 1 July 2008.

Introduction

The Companies Law came into force on 1 July 2008.

No Requirement to Appoint a Secretary

The Companies Law provides that a company may, but does not need to, have a secretary. The secretary of an incorporated cell company must also act as secretary of each of its incorporated cells.

Eligibility

A person is not permitted to act as a secretary if they are (i) a minor or (ii) disqualified from being a director under either the Companies Law, the Companies (Guernsey) Law, 1994 (as amended) or the laws of anywhere outside the Bailiwick of Guernsey. An appointment made in contravention of the Companies Law is void, but as such a person who purports to act as a secretary may still incur liability for doing so.

Duties

A secretary is required by the Companies Law to take reasonable steps to ensure:

• that all registers and indexes are maintained in accordance with the provisions of the Companies Law;

• that all notices and documents required to be filed or served upon the Registrar or other persons are duly so filed or served;

• that all notices and documents required to be filed or served upon the Registrar or other persons are duly so filed or served;

• that all resolutions, records (other than records of beneficial owners) and minutes of the company are properly kept;

• that copies of the memorandum and articles are kept fully up to date, and

• that the board of directors is aware of any obligations imposed by-

Dual Capacity

A person may hold office as a director and a secretary at the same time, and where a company is required to do something by a director and the secretary, then it is permissible for the same person to carry out the act acting as both director and secretary.

Register of Secretaries

If a company has a secretary, it needs to keep a register of secretaries at its registered office. The register must contain the following details:

• in respect of an individual, his name, any former name and a service address (which can be the company's registered office); and

• in respect of other entities, a corporate or firm name, any former name within 5 years, its registered office (or principal office if none), its legal form and governing law and any register it is listed in along with the registration number contained in that register.

The register must be open for inspection during ordinary business hours, free of charge to members and on payment of a fee by anyone else. A company can also be required to provide copies of the register upon payment of a further fee, such copies to be sent within 5 working days of receipt of the request.

Liability

Secretaries should be aware that where a criminal offence is committed under the Companies Law by a company and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of an officer of the company, including a secretary, he as well as the company is guilty of the offence and may be proceeded against and punished accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.