UK: A Guide To The Companies Act 2006 - Part 1

Last Updated: 29 November 2007

INTRODUCTION

The Companies Act 2006 (the Act), the largest ever piece of legislation issued by Parliament, weighing in with over 1300 sections and 16 schedules and to be supplemented with approximately 70 pieces of secondary legislation, received Royal Assent on 6 November 2006 and will take around two years to complete implementation.

Despite its great length, not everything in the Act is new; approximately one third is a restatement of the existing law relating to companies. Not everything that is new applies to all types of companies, and it may prove that the impact of some of the changes may be comfortably absorbed by businesses with some planning and preparation.

The picture is constantly changing as details of implementation, Government guidance on interpretation and draft secondary legislation providing the essential detail is published. This guide aims to summarise some of the key areas as at 8 November 2007.

Key Features

The Act will provide a complete code of company law; when fully implemented it will replace substantially the whole of the Companies Act 1985.

The aims of the Act are to:

  • Modernise company law.
  • Provide a simple, efficient and cost-effective framework for businesses to operate within.
  • Be accessible to small businesses and their advisers – "think small first".
  • Remove unnecessary administrative burdens on companies.

In many respects the Act has created a two-tier system: less regulation for private companies and more stringent requirements for public or quoted companies to replace the former "one size fits all" approach. This is reflected in the drafting; where provisions do not apply to all companies, those applying to small companies appear before provisions only applying to other types of companies.

Much has already been written about the Act, and more will have to follow. For now, these are some of the headline changes:

  • The codification of directors’ duties, the statutory factors to be considered by directors in their decision making, the relaxation of restrictions on transactions involving directors, and confidentiality of directors’ residential addresses.
  • A new regime for shareholders to bring actions on behalf of the company against directors in breach of their statutory duties (derivative actions).
  • Removal of the prohibition against the giving of financial assistance by private companies in connection with the acquisition of their shares.
  • New information rights for indirect investors, enhanced powers for proxies.
  • Wider use of electronic means and websites for communications between companies and their shareholders.
  • Limitation of auditors’ liability and changes to the presentation and filing of company accounts.
  • Expanded information requirements for a quoted company’s business review.
  • Full implementation of the Takeover Directive with rule making powers for the Takeover Panel and a revised Takeover Code.
  • Implementation of the Transparency Directive and the introduction of the Disclosure and Listing Rules.
  • A simplified form of constitution and "unrestricted objects".
  • New forms of Model Articles to replace Table A.
  • De-regulation for private companies: AGMs and company secretaries become optional and a new procedure for decision making by written resolution.
  • Control over access to the register of members.

DIRECTORS

Directors’ Duties

The codification of directors’ duties has been one of the most controversial and widely discussed parts of the Act. This part of the Act [s 170 – 181] is based on the common law rules and principles of equity that have guided directors’ conduct for many years and is intended to provide clarity and assist directors in understanding their role.

Two important things have not changed: the definition of director - the rules apply to any person occupying the position of director, ie in a position of power, who is involved in decision-making; and the beneficiary of the duties - the director owes the duties to the company alone.

It should be noted that the duties are cumulative and therefore more than one duty may need to be considered in any one situation; directors will need to comply with each relevant duty as well as all other applicable laws. The "general duties" of a director set out in the Act are:

  • Duty to act within powers [s 171]. The Act does not set out the powers of a director; these are derived from the company’s constitutional documents, principally its articles of association. A company may place more onerous duties than the general duties on its directors, but cannot dilute the general duties by its articles.
  • Duty to promote the success of the company [s 172]. The Act does not define what is meant by "success". For a commercial company, this is understood to mean a long-term increase in value, but for any other type of company it may be necessary to define the purposes of the company and how a director may act best to promote its success.
  • Duty to exercise independent judgment [s 173]. This means that a director must not subordinate his powers to the will of others by delegation or otherwise. Any power to delegate must be granted in the articles. A director will not be in breach of this duty if he acts in a way authorised by the constitution.
  • Duty to exercise reasonable skill, care and judgment [s 174]. The Act sets out a two-tier statutory test for the standard of skill, care and judgment a director must apply. A director must meet the higher of the objective standard: the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions of director of that company; and the subjective standard: the actual knowledge, skill and experience of that director. This is the only duty not enforceable as a fiduciary duty [s 174(2)]; in this case the only remedy for a breach would be damages against the director. Directors should be advised in their service contracts of the standard of skill, care and judgment expected of them.
  • Duty to avoid conflicts of interest [s 175]. This duty covers all conflicts, actual or potential, between the interests of the company and its directors, except those relating to transactions or arrangements with the company which are covered by separate provisions (see below). This duty specifically applies to conflicts relating to the exploitation of the company’s property, information or opportunities for the director’s personal reasons, regardless of whether or not the company could take advantage of these for itself. The Act provides that independent directors of private companies may approve any conflict referred to them, unless there is a restriction in the articles of association. In the case of public companies, the articles must expressly permit independent directors to authorise a conflict of interest.
  • Duty not to accept benefits from third parties [s 176]. The guidance to the Act explains that "benefits" includes bribes, but not benefits conferred by the company in connection with a director’s service contract. A company may provide in its articles of association details of what benefits (and of what value) may be accepted by a director without breaching this duty.
  • Duty to declare interest in a proposed transaction or arrangement [s 177]. This duty does not only apply where the director is a party to the transaction, but also to any transaction involving any person connected [as defined in s 252, which contains an extended list of ‘family’] with the director. The Act details the procedure for notification of the interest to the other directors, the articles of association may also require that shareholder approval is obtained. This duty is in addition to the provisions of s 182 – 187 Declaration of interest in existing transaction or arrangement, which revises the existing duty under s 317 Companies Act 1985.

The first four general duties [s 171 –174] listed above come into force on 1 October 2007. The date for implementation of the ‘conflict of interest’ duties [s 175 -177], the provisions for consent, approval and authorisation by members [s 180] and the notification requirements in s 182 – 187 is to be confirmed in December 2007. The delay is to allow companies sufficient time to amend their articles to provide what will amount to a conflict of interest and whether it can be approved by directors.

Statutory Factors

One of the most discussed parts of the general duties is the inclusion in the duty to promote the success of the company [s 172] of a non-exhaustive list of factors to which directors must have regard when discharging this duty. The listed factors are:

  • The likely long-term consequences of any decision.
  • The interests of the employees of the company.
  • The need to foster the company’s business relationships with suppliers, customers and others.
  • The impact of the company’s actions on the environment and the community.
  • The desirability of maintaining a reputation for high business standards.
  • The need to act fairly between members.

Whilst the Government has indicated that it is not expecting companies to create a paper trail nor will there be a breach of the duty if every factor is not considered, the Government is expecting more than lip-service to this move towards corporate transparency and social responsibility. Considerable consideration is being given to the future content of board minutes to ensure adequate compliance without increasing the administrative burden and exposing directors to further risk. The most likely outcome is that board minutes will record the decision made and the fact of consideration of those factors relevant to that decision, with all detailed analysis remaining in the management and background papers.

Transactions Involving Directors

There have been notable revisions to the provisions regulating transactions between a company and its directors. The Act provides for a consistency of approach for all these transactions:

  • The rules apply to transactions with directors of the company and directors of its holding company.
  • All the transactions require members’ approval, this may be obtained by ordinary resolution unless the articles require a larger majority and private companies may use the new written resolution procedure.
  • A memorandum containing the details of the transaction must be given to the members either simultaneously with the text of the resolution or 15 days before the general meeting.

Transactions entered into without members’ approval are voidable at the instance of the company. All these changes come into force on 1 October 2007.

  • Substantial property transactions [s 190 – 196]. No director, or connected person, may acquire directly or indirectly from the company, nor may the company acquire from the director or connected person, any substantial non-cash asset without the prior approval of the members or the transaction being conditional on such approval being obtained. Transactions may be affirmed retrospectively within a "reasonable time". The minimum value for which approval is required is increased from £2000 to £5000. There are specific exceptions to the requirement for members’ approval including entitlements under the director’s service contract, payments for loss of office and where the company is in administration.
  • Loans to directors [s 197 – 214]. A company may not make a loan to a director or give a guarantee or provide security in connection with a loan to a director without the prior approval of the members. Members must be supplied with a memorandum detailing the nature of the transaction, the amount of the loan and the purpose for which it is required and the extent of the company’s liability before any resolution is passed. No approval is required for loans under £10,000 or for certain specified purposes such as to meet expenditure incurred for the purposes of the company or to properly perform the duties of director or for intra-group transactions. Breach is not a criminal offence, as it was under the Companies Act 1985.
  • Service contracts [s 188 – 189]. The requirement for members’ approval of directors’ service contracts commencing after 1 October 2007 has been amended to apply to those contracts where the guaranteed term of employment is 2 years, reduced from the former 5 years. The definition of service contracts [s 227] has been expanded to include contracts of employment with the company or a subsidiary, contracts for services and letters of appointment as director. Copies of all service contracts must now be kept for one year after expiry [s 228 –230].
  • Payments for loss of office [s 215 – 222]. The Act includes payments for loss of employment, for retirement from employment and upon the transfer of the undertaking or property of a subsidiary, in the payments for loss of office that require members’ approval.

Indemnities

The prohibition in the Companies Act 1985 against companies exempting or indemnifying a director against liability to the company remains and is extended by the Act to any indemnity given by an associated company [s 232]. The permitted exceptions in respect of directors’ liability insurance and qualifying third party indemnities [s 234 – a company may indemnify a director in respect of proceedings brought against him by third parties except for criminal fines or penalties imposed by regulatory bodies, defence of criminal proceedings where the director is found guilty or for the unsuccessful defence of civil proceedings] are joined in the Act by the new "qualifying pension scheme indemnity" [s 235]. This provision permits a company to indemnify a director of a company acting as the trustee of an occupational pension scheme against liability incurred in connection with the company’s activities as trustee of the scheme. The director cannot be indemnified against liability for any criminal fine or penalty by a regulatory body or the cost of defending criminal proceedings where the director is convicted. These provisions all come into force on 1 October 2007.

Requirements For Directors

There are no changes to the requirements for a private company to have one director and for public companies to have two directors. However every company must have at least one director who is natural person [s 155]. The Government has announced that those companies that did not have at least one natural person as a director on 8 November 2006 will have until October 2010 to comply with this provision.

Also there will be a minimum age of 16 years for all company directors. Since 6 April 2007 the previous maximum age of 70 years for directors of public companies no longer applies.

It will be confirmed in December 2007 when these further changes are to come into force.

Confidentiality And Service Addresses

The Act provides for greater confidentiality for directors’ residential addresses, replacing the current Confidentiality Orders provisions. From 1 October 2009 each company must not only keep a register of directors but also a separate register of directors’ residential addresses which is not open to the public [s 165]. In the register of directors, directors may provide a service address, such as the registered office rather than their residential address. It will also no longer be necessary for a director to disclose any other directorships held.

Directors will have to file their residential address at Companies House, but again this is to be held on a confidential register that may only be accessed by certain public authorities and, in some cases, credit reference agencies [s 240 –246]. The option of providing a service address, such as the registered office, to Companies House will be available to all directors. It will be possible for liquidators, creditors or members of the company to obtain a court order for disclosure of a director’s residential address if it can be shown that it is not otherwise possible to bring service of documents to the notice of the director or for the effective enforcement of an order of the court [s 244]. The registrar will not be amending retrospectively directors’ details or checking other documents for references, but it will be possible for former directors and secretaries to have their previously filed addresses removed, although not from records predating 1 January 2003.

The provisions of the Act relating to "protected information" [s 243 and 1088] and the availability and protection of addresses on the register are to be supplemented by the (currently draft) Companies (Particulars of Usual Residential Addresses) Regulations 2008.

DERIVATIVE ACTIONS

The Act [s 170] preserves the common law position that the directors owe their duties to the company, and not to individual members or third parties such as employees or pressure groups. Accordingly only the company may enforce any breach of duty by a director. This may be done by proceedings brought by the board of directors or a liquidator of the company or by one or more members bringing a common law action on behalf of the company.

The Act introduces a new procedure for members wishing to commence such an action against a director for any negligence, breach of duty or trust and sets out statutory criteria for assessing whether an action may be pursued.

Rights

Part 11 of the Act [s 260 – 264 for England and Wales] contains the provisions for derivative claims and proceedings by members. This part 11 comes into force on 1 October 2007.

The proceedings may only be brought by a member of the company in respect of a cause of action vested in the company arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust involving a director and where relief is sought on behalf of the company [s 260]. There is no requirement for a person to have been a member at the time of the action complained of and claims may be brought against former and shadow directors. The two main changes from the common law right are that it is not necessary to show that the wrong doing directors control the majority of shareholders nor does there need to have been personal gain by the directors concerned.

Factors To Consider

The combination of the introduction of the statutory code of directors’ duties and this right for members to enforce those duties is an area of concern for directors and there has been considerable discussion as to whether this may lead to an increase in shareholder litigation. However there are a number of procedural hurdles a member must overcome before successfully bringing an action which should prevent unmeritorious actions impeding the proper management of companies.

Once proceedings have been commenced, the member must apply to the court for leave to continue the action and establish a prima facie case [s 261]. The directors are not involved at this stage, however if the court is unable to dismiss the application on the claimant’s papers alone then there may be a hearing at which the director may make representations. The Act provides [s 263(2)] that the court must refuse permission if:

  • A person acting in accordance with s 172 [duty to promote the success of the company] would not continue the claim.
  • The action arises from an act or omission that is yet to occur but has been authorised by the company.
  • The action arises from an act or omission that has occurred but which was authorised in advance by the company or has subsequently been ratified by the company. The company has the power [s 180(4)] to authorise anything that would otherwise constitute a breach of duty; where the conduct of a director amounts to negligence, default, breach of duty or trust in relation to the company, this may still be ratified by the members so long as the ratifying resolution is not passed relying on the votes of the director concerned or any connected person [s 239].

The Act further states the factors the court must take into account when considering whether to grant leave to continue the claim [s 263(3) and (4)], as follows:

  • The good faith of the member bringing the action.
  • The importance that a person acting according to s 172 [duty to promote the success of the company] would attach to continuing the claim.
  • Where the cause of action relates to a future act or omission, the likelihood of the company either authorising the act or omission in advance or ratifying it subsequently.
  • Where the cause of action relates to an act or omission that has already occurred, the likelihood of ratification by the company.
  • Whether the company would pursue the claim.
  • Where the claim could be pursued by the member in his own right.
  • The views of any independent members.

Court Procedure – Civil Procedure Rules Part 19

Amendments to CPR part 19 and a new Practice Direction give effect to the provisions in s 260- 264 from 1 October 2007. The changes provide that:

  • The company should be notified of the application to continue the action and be provided with a copy of the claim form and application before the court’s determination of the prima facie case.
  • Where a derivative action claim is settled by the company providing that no other actions on the same grounds be brought, this settlement should be approved by the court and the terms notified to other shareholders.

Shares And Capital Maintenance

The Act relaxes a number of the Companies Act 1985 rules relating to capital maintenance for private companies.

Authorised Share Capital

From 1 October 2009, the requirement for a limited company with share capital to set a limit to its authorised share capital is removed. Companies incorporated under the Act after this date will be required to provide information about the shares subscribed for by the original members in the statement of capital and initial shareholdings, instead of the memorandum [s 10]. The information to be supplied includes: the total number of shares taken on formation by the subscribers; the aggregate nominal value of the shares; the rights attached to each class of shares and the number of shares and aggregate value of each class of shares; and information to identify the subscribers and the number, value and class of shares held by each of them. The limit of authorised share capital for existing companies will become a restriction in the articles of association [s 28].

In addition, for private companies with one class of share, the requirement for directors to be authorised to allot shares will be removed. The directors may exercise any power of the company to allot shares, unless restricted by the articles [s 550]. For private companies with more than one class of shares and public companies directors must be authorised to allot shares either by the articles of the company or a resolution of the members [s 549 – 559]. Where existing companies have already authorised the allotment of shares prior to 1 October 2009, transitional provisions, currently under consultation, in respect of these arrangements will apply.

Under the Act, shares in a company limited by share capital must have a fixed nominal value, but this may be in any currency and different classes of shares may be in different currencies [s 542].

Redenomination Of Share Capital

The Act provides for two ways that a company may alter its share capital [s 617]: by allotting new shares or by reducing its share capital. After 1 October 2009 a company may also redenominate its share capital from a fixed nominal value in one currency into another by ordinary resolution, unless prohibited by the articles [s 622].

Issue Of Redeemable Shares

The Act removes the requirement for a private company, after 1 October 2009, to have prior authorisation in its articles of association to issue redeemable shares; this remains a pre-condition for public companies [s 684].

The directors of both private and public companies can determine the terms, conditions and manner of redemption of shares [s 685] subject to authorisation by the articles of association or ordinary resolution. There is no longer any requirement for the terms of redemption to include that payment is made on redemption, the company and member can agree a later payment date [s 686].

Private companies may wish to review their articles with a view to including any restriction or prohibition against the issue of redeemable shares and any authorisation of directors.

Financial Assistance

The prohibition contained in the Companies Act 1985 against private companies giving financial assistance in connection with the acquisition of their shares is to be removed. The date for implementation of this change will be confirmed in December 2007.

The general prohibition against the giving of financial assistance by a public company or its subsidiaries, or by a public company in connection with the acquisition of its private company parent, remains [s 678 – 679] with no equivalent of the "whitewashing" procedure under the Companies Act 1985.

To avoid a breach of a common law rule against the giving of financial assistance that it has been feared may arise following the repeal of the statutory prohibition against private companies, draft wording (to be included in the relevant commencement order) has been published for consultation aimed at saving transactions that would otherwise have been lawful if the company had followed the Companies Act 1985 whitewash procedure [Annex B Chapter 4, Implementation of Companies Act 2006, DTI consultation document February 2007].

Capital Reductions

The Act introduces a simplified procedure for a company to reduce its share capital [s 641 – 653]. It will no longer be necessary to have prior authorisation in the articles of association, but companies may include a restriction against any reduction. From 1 October 2009, a private company will be able to reduce its share capital provided at least one member remains holding at least one no-nredeemable share, by special resolution (which may be a written resolution) [s 642] supported by a statement of solvency made by all the directors declaring that there are no grounds at that time for the company to be unable to pay its debts and it will continue to be able to do so in the next 12 months [s 643]. Both the resolution and solvency statement must be registered with the Registrar of Companies within 15 days of being made [s 644].

Both private and public companies will also still be able to use the current court approved procedure [s 645] which does not require a solvency statement from the directors, but will give creditors the opportunity to object to the reduction if it would result in the diminution of liability in respect of unpaid share capital or involves payment to a shareholder of any paid-up share capital.

The rights of creditors to object to proposed reductions of capital [s 646] will be supplemented from 6 April 2008 by the (currently draft) Companies (Reduction of Capital) Regulations 2008. These regulations will require the creditor to show that there is a real likelihood that the proposed reduction will jeopardise payment of the creditor’s debt or claim.

Distributions In Kind

The Act includes some new provisions that come into force on 6 April 2008 aimed at clarifying when a transfer of an asset to a member amounts to a distribution and whether intra-group transfers of assets should be by reference to the book value or market value of the asset [s 845 – 851].

The Act confirms that a company may only make distributions out of profits available for the purpose [s 830]; any distribution by way of a transfer of assets at an undervalue by a company without distributable profits will be an unlawful distribution. All the common law rules relating to unlawful distributions are expressly preserved by the Act [s 851]. The amendments provide that where a company does have distributable profits, the amount of any distribution arising from or consisting of the disposition of the company’s asset to a member of the company should be calculated by reference to the value of the asset in the company’s accounts, ie its book value [s 845]. If the consideration for the asset is not less than its book value there will not be a distribution; if the consideration is less than book value there will be a distribution equal to the amount of the shortfall that must be met from distributable reserves. Any profit, ie consideration in excess of the book value, may be included in a calculation of available distributable reserves.

MEMBERS

One of the main objectives of the Act is to improve the dialogue between a company and its members and increase the involvement of the shareholders in the decision-making of the company. The Act also wishes to make it easier to form a company whilst at the same time providing greater confidentiality of members’ personal details.

Minimum Number

From 1 October 2009 only one person will be required to form any company, including a public company [s 7]. Each member must sign the memorandum of association. Under the Act this will be much reduced from the current memorandum, only containing statements that the members wish to form a company, agree to become members and, for all companies with a share capital, agree to hold at least one share each [s 8]. Limited companies with only one member must enter on the register of members a statement that the company only has one member [s 123].

Proxies

The new provisions in the Act for the appointment of proxies by members expand the existing statutory rights of proxies and incorporate some of the provisions relating to proxies contained in Table A. From 1 October 2007:

  • The members of both private and public companies will be able to appoint more that one proxy; each such proxy must be appointed to exercise the rights attached to the different shares [s 324].
  • All proxies will be able to attend, speak and vote at meetings [s 324].
  • On a vote on a show of hands at a general meeting each proxy appointed has one vote [s 284(2)] and if only one proxy is appointed he has the same number of votes as the appointing member would have if present in person.
  • Subject to any provisions in the company’s articles, a proxy may be appointed chairman of a meeting [s 328].
  • A proxy may make a demand for a poll [s 329].

The company may by its articles grant even more extensive rights to members and proxies [s 331].

In addition to the substantive changes to the rights of proxies, the Act makes some procedural changes relating to proxies. Firstly, every notice calling a general meeting must contain a statement informing the members of their rights to appoint one or more proxies and setting out the more extensive rights of proxies [s 325]. Failure to include this information statement will be an offence committed by every officer, but will not invalidate the meeting. Secondly, there have been some changes to the timing for notices of appointment of proxies: a minimum of 48 hours notice has to be given of an appointment, not including weekends, Christmas Day, Good Friday or any public holiday. Any provision in the articles requiring shorter notice of proxies will be void [s 327].

Information Rights

For the first time this Act gives statutory rights to beneficial shareholders in respect of those shares held for them by intermediaries. Currently any investor in shares that are not registered in his name but held on his behalf has to rely on contractual arrangements between the investor and the registered shareholder to obtain information about the company or to be able to give instructions as to how the shares are to be voted. From 1 October 2007, two non-mandatory provisions make it possible for registered shareholders to confer the rights of members on the holder of any beneficial interests.

Firstly, all companies will be permitted to provide in their articles that a member may nominate another person to exercise all or any of the rights of members with the effect that all provisions of the Act that apply to members will apply equally to that person [s 145]. This includes rights to: request the circulation and receive copies of written resolutions; require the calling and receive notice of general meetings; appoint a proxy to attend general meetings; receive copies of the reports and accounts; and in the case of public companies require the circulation of resolutions for an AGM. The only exception is that a member cannot give any third party investor any rights of enforcement against the company. Such a nomination also would not amount to a transfer or disposition of the shares themselves.

Secondly, for companies whose shares are admitted to trading on a regulated market the Act provides that a member of the company who holds shares on behalf of another person may nominate that person to enjoy "information rights" [s 146]. These rights are: the right to receive copies of all communications that the company sends its members, including the right to require copies of accounts and reports and to receive them in hard copy if the information is usually supplied in another form. Information rights are narrower than the nominated rights in respect of all companies, but there is no requirement for a provision in the articles to permit the nomination by the member.

In neither case can the beneficial shareholder require the nomination to be made.

Access To Register Of Members

From 1 October 2007, there are new rules relating to requests for access to a company’s register of members [s 116 – 119]. Any person requesting access to the register of members must provide the following information in the request:

  • The name and address of the individual making the request, whether on his own behalf or on behalf of an organisation.
  • The purpose for which the information is to be used.
  • Whether the information is to be disclosed to any other person, and if so that person’s name and address or the name and address of the person who will receive the information on behalf of an organisation and the purpose for which that person will use the information [s 116].

To knowingly or recklessly provide information in connection with a request for access that is misleading, false or deceptive in a material manner or to do anything with information obtained which results in a disclosure to another person knowing or reasonably suspecting that person will use it not for a proper purpose is an offence [s 119].

Companies should note that they only have five working days, reduced from 10 days, to respond to a request or apply to the court for an order that the request for access is not for a "proper purpose" and therefore the information does not need to be supplied. Failure to provide the information without a court order is an offence. The Act does not define "proper purpose" but the guidance of Companies House is that it is likely to be strictly interpreted. The Institute of Chartered Secretaries and Administrators’ guidance on this part of the Act suggests purposes such as anything clearly unlawful, an intention to threaten or harass members or commercial mailings would fall within the description of an improper purpose.

These new rules will apply to companies as they file annual returns made up to dates after 30 September 2007.

Annual Return

It will not be until 1 October 2009 that the provisions of the Act relating to the content of annual returns [s 854 – 859] will come into force. The minor amendments made in the Act will provide limited confidentiality to certain members. The Act currently provides that only "prescribed particulars" of members need to be listed in the annual return, not the name and address of the member. The (currently draft) Companies (Annual Return and Service Address) Regulations 2008 provide for new s 856A and s 856B to be inserted in the Act differentiating the requirements for traded and non-traded companies:

  • If the company is traded on a stock market it will only have to disclose the "prescribed particulars" of any holder of 5% or more of the issued shares of any class at the date of the return or who has ceased to hold 5% or more of the issued shares since the last return together with the number of shares of each class held and the dates of any transfers. Early indications are that the "prescribed particulars" will be the name and address, but not necessarily the residential address, of these shareholders.
  • If the company is a private company, or a public company whose shares are not traded, it will have to disclose the "prescribed particulars" of each member or any person who has ceased to be a member since the last return with the number of shares of each class held and the dates of any transfers. For non-traded companies the indications are that the "prescribed particulars" will only be the name of the member.

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.

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This article is part of a series: Click A Guide To The Companies Act 2006 – Part 2 for the next article.
 
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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.