UK: Refusing Access To The Register Of Members

Last Updated: 30 March 2015
Article by Jonathan Brooks

Burberry Group plc has succeeded in an application to court for a direction not to comply with a request for a copy of its register of members, as the request was found to have been made for an improper purpose.  This is only the second case where the proper purpose test for access to the register of members, introduced by the Companies Act 2006, has been considered by the courts.

The Companies Act provides that a company's register of members must be available for inspection by members and by the public, and that copies can be requested.  A prescribed fee is payable for copies, and for inspection by someone who is not a member of the company.  In order to exercise these rights, a request must be made to the company containing specified information, including whether the information is to be disclosed to anyone else and the purpose for which the information is to be used by the person making the request or anyone to whom he discloses the information.

When a company receives the request, it must within five working days either comply with the request or make an application to the court for a direction not to comply.  The court must make such a direction if it is satisfied that the inspection or copy of the register is not sought for a proper purpose.  The Institute of Chartered Secretaries and Administrators (ICSA) has issued guidance on the proper person test, which was considered useful, but not definitive, by the Court of Appeal in the first case to consider this issue (Burry & Knight Ltd v Knight).

Burberry Group received a request for a copy of its register of members from Mr Fox-Davies.  His stated purpose was to "assist and allow shareholders who may otherwise be unaware of their entitlements to reassert ownership or recover benefit of their property" and he indicated that information would be shared with a company incorporated in Gibraltar called Interum, which would use it for the same purpose. 

It became clear that Mr Fox-Davies passed information to Interum, which collated it to identify lost company members.  But then this information was passed on to other companies and individuals to trace the lost members.  Mr Fox-Davies had not identified these "specialist researchers" in his request for access to the register of members.

Burberry Group was not happy with the request, its major concern being that it was not clear who would be given access to personal information relating to shareholders, there was no evidence of how the information would be kept confidential and no protection for members in respect of potential fraud or other wrong-doing.

In addition, Burberry Group had already engaged a tracing agent to help it re-establish contact with its "lost members" and it alleged that "a nakedly commercial enterprise" such as that run by Mr Fox-Davies was not in the interests of shareholders when a secure and controlled tracing company was already doing the same job.

Mr Fox-Davies contended that he had the same purpose in accessing the register of members as the tracing agent already engaged by the company, and that this purpose was approved by the company.

The court referred to the ICSA guidance, which considers it an improper purpose if the request is made by an agency "specialising in identifying and recovering unclaimed assets for their own commercial gain by then contracting and extracting commission or fees from the beneficiaries... where the company is not satisfied that such activity is in the interests of shareholders".  The judge thought that this provided a working guide for a company.

In this case, the judge concluded that the interests of Burberry Group shareholders would not be advanced because:

  •  there may be confusion if two separate tracing agencies contacted the same lost member;
  • different terms and conditions would apply to a lost member depending on which tracing agency contacted him first, with one agency's terms being less beneficial to the member;
  • Mr Fox-Davies was based out of the jurisdiction;
  • his commercial practice as a tracing agent was in doubt or unknown; and
  • nothing was known about his sub-contracted "specialist researchers".

In addition to deciding that Mr Fox-Davies did not have a proper purpose in requesting access to Burberry Group's register of members, the court also addressed a preliminary argument that the company was out of time in making its application to the court for a direction not to comply with his request.

Mr Fox-Davies made two requests to the company, one in March 2013 and one in April.  It was accepted that Burberry Group had made its application to court within the five working day time limit of the second request.  However, Mr Fox-Davies argued that it was out of time as it had not made its application within five working days of the first request.

The court decided that the five day time limit did not start to run on receipt of the March request, as the request did not comply with the statutory requirement to state the names and addresses of those with whom Mr Fox-Davies was going to share the information.

Companies should however note that the five day time limit is strict, and the court has no discretion to waive or extend it. It is important that companies have procedures in place to respond promptly when they receive a request for access to their register of members.

This case might also prompt companies to consider engaging a tracing agent to help them re-establish contact with lost members, if they have not already done so.  The company can then find a tracing agent with whom it is happy to work and this is likely to help in persuading the court that it should not be required to pass information to other tracing agents.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.