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The Companies (No. 2) (Northern Ireland) Order 1990

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This is the original version (as it was originally made).

PART IVOTHER AMENDMENTS OF COMPANY LAW

A company’s capacity and related matters

A company’s capacity and the power of the directors to bind it

44.  (1)  In Chapter III of Part II of the Companies Order (a company’s capacity; formalities of carrying on business), for Article 45 substitute—

A company’s capacity not limited by its memorandum

45.  (1)  The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s memorandum.

(2) A member of a company may bring proceedings to restrain the doing of an act which but for paragraph (1) would be beyond the company’s capacity; but no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.

(3) It remains the duty of the directors to observe any limitations on their powers flowing from the company’s memorandum; and action by the directors which but for paragraph (1) would be beyond the company’s capacity may only be ratified by the company by special resolution.

A resolution ratifying such action shall not affect any liability incurred by the directors or any other person; relief from any such liability must be agreed to separately by special resolution.

(4) The operation of this Article is restricted by Article 9A of the Charities (Northern Ireland) Order 1987 in relation to companies which are charities; and Article 330A below (invalidity of certain transactions to which directors or their associates are parties) has effect notwithstanding this Article.

Power of directors to bind the company

45A.  (1)  In favour of a person dealing with a company in good faith, the power of the board of directors to bind the company, or authorise others to do so, shall be deemed to be free of any limitation under the company’s constitution.

(2) For this purpose—

(a)a person “deals with” a company if he is a party to any transaction or other act to which the company is a party;

(b)a person shall not be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors under the company’s constitution; and

(c)a person shall be presumed to have acted in good faith unless the contrary is proved.

(3) The references above to limitations on the directors' powers under the company’s constitution include limitations deriving—

(a)from a resolution of the company in general meeting or a meeting of any class of shareholders, or

(b)from any agreement between the members of the company or of any class of shareholders.

(4) Paragraph (1) does not affect any right of a member of the company to bring proceedings to restrain the doing of an act which is beyond the powers of the directors; but no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.

(5) Nor does that paragraph affect any liability incurred by the directors, or any other person, by reason of the directors' exceeding their powers.

(6) The operation of this Article is restricted by Article 9A of the Charities (Northern Ireland) Order 1987 in relation to companies which are charities; and Article 330A below (invalidity of certain transactions to which directors or their associates are parties) has effect notwithstanding this Article.

No duty to enquire as to capacity of company or authority of directors

45B.  A party to a transaction with a company is not bound to enquire as to whether it is permitted by the company’s memorandum or as to any limitation on the powers of the board of directors to bind the company or authorise others to do so..

(2) In Schedule 20 to the Companies Order (effect of registration of companies not formed under that Order), in paragraph 6 (general application of provisions of Order), after sub-paragraph (5) insert—

(6) Where by virtue of sub-paragraph (4) or (5) a company does not have power to alter a provision, it does not have power to ratify acts of the directors in contravention of the provision..

(3) In Schedule 21 to the Companies Order (provisions applying to unregistered companies), in the entries relating to Part II, in the first column for “Article 45” substitute “Articles 45 to 45B”.

Invalidity of certain transactions involving directors

45.  (1)  In Part XI of the Companies Order (enforcement of fair dealing by directors), after Article 330 insert—

Invalidity of certain transactions involving directors, etc.

330A.  (1)  This Article applies where a company enters into a transaction to which the parties include—

(a)a director of the company or of its holding company, or

(b)a person connected with such a director or a company with whom such a director is associated,

and the board of directors, in connection with the transaction, exceed any limitation on their powers under the company’s constitution.

(2) The transaction is voidable at the instance of the company.

(3) Whether or not it is avoided, any such party to the transaction as is mentioned in paragraph (1)(a) or (b), and any director of the company who authorised the transaction, is liable—

(a)to account to the company for any gain which he has made directly or indirectly by the transaction, and

(b)to indemnify the company for any loss or damage resulting from the transaction.

(4) Nothing in the above provisions shall be construed as excluding the operation of any other statutory provision or rule of law by virtue of which the transaction may be called in question or any liability to the company may arise.

(5) The transaction ceases to be voidable if—

(a)restitution of any money or other asset which was the subject-matter of the transaction is no longer possible, or

(b)the company is indemnified for any loss or damage resulting from the transaction, or

(c)rights acquired bona fide for value and without actual notice of the directors' exceeding their powers by a person who is not party to the transaction would be affected by the avoidance, or

(d)the transaction is ratified by the company in general meeting, by ordinary or special resolution or otherwise as the case may require.

(6) A person other than a director of the company is not liable under paragraph (3) if he shows that at the time the transaction was entered into he did not know that the directors were exceeding their powers.

(7) This Article does not affect the operation of Article 45A in relation to any party to the transaction not within paragraph (1)(a) or (b).

But where a transaction is voidable by virtue of this Article and valid by virtue of that Article in favour of such a person, the court may, on the application of that person or of the company, make such order affirming, severing or setting aside the transaction, on such terms, as appear to the court to be just.

(8) In this Article “transaction” includes any act; and the reference in paragraph (1) to limitations under the company’s constitution includes limitations deriving—

(a)from a resolution of the company in general meeting or a meeting of any class of shareholders, or

(b)from any agreement between the members of the company or of any class of shareholders..

(2) In Schedule 21 to the Companies Order (provisions applying to unregistered companies), in the entries relating to Part XI, insert—

Article 330A.Invalidity of certain transactions involving directors, etc.Subject to Article 667(3)..

Statement of company’s objects

46.  (1)  In Chapter I of Part II of the Companies Order (company formation), after Article 14 (forms of memorandum) insert—

Statement of company’s objects: general commercial company

14A.  Where the company’s memorandum states that the object of the company is to carry on business as a general commercial company—

(a)the object of the company is to carry on any trade or business whatsoever, and

(b)the company has power to do all such things as are incidental or conducive to the carrying on of any trade or business by it..

(2) In the same Chapter, for Article 15 (resolution to alter objects) substitute—

Resolution to alter objects

15.  (1)  A company may by special resolution alter its memorandum with respect to the statement of the company’s objects.

(2) If an application is made under Article 16, an alteration does not have effect except in so far as it is confirmed by the court..

Charitable companies

47.  (1)  In the Charities (Northern Ireland) Order 1987(1) for Article 9 (charitable companies) substitute—

Charitable companies: alteration of objects clause

9.  (1)  Where a charity is a company or other body corporate having power to alter the instruments establishing or regulating it as a body corporate, no exercise of that power which has the effect of the body ceasing to be a charity shall be valid so as to affect the application of—

(a)any property acquired under any disposition or agreement previously made otherwise than for full consideration in money or money’s worth, or any property representing property so acquired,

(b)any property representing income which has accrued before the alteration is made, or

(c)the income from any such property as aforesaid.

(2) Where a charity is a company, any alteration by it of the objects clause in its memorandum of association is ineffective without the prior written consent of the Department; and it shall deliver a copy of that consent to the registrar of companies under Article 17(1)(a) or (b) of the Companies Order along with the printed copy of the memorandum as altered.

(3) Article 17(3) of that Order (offences) applies in relation to a default in complying with paragraph (2) as regards the delivery of a copy of the Department’s consent.

Charitable companies: invalidity of certain transactions

9A.  (1)  Articles 45 and 45A of the Companies Order (capacity of company not limited by its memorandum; power of directors to bind company) do not apply to the acts of a company which is a charity except in favour of a person who—

(a)gives full consideration in money or money’s worth in relation to the act in question, and

(b)does not know that the act is not permitted by the company’s memorandum or, as the case may be, is beyond the powers of the directors,

or who does not know at the time the act is done that the company is a charity.

(2) However, where such a company purports to transfer or grant an interest in property, the fact that the act was not permitted by the company’s memorandum or, as the case may be, that the directors in connection with the act exceeded any limitation on their powers under the company’s constitution, does not affect the title of a person who subsequently acquires the property or any interest in it for full consideration without actual notice of any such circumstances affecting the validity of the company’s act.

(3) In any proceedings arising out of paragraph (1) the burden of proving—

(a)that a person knew that an act was not permitted by the company’s memorandum or was beyond the powers of the directors, or

(b)that a person knew that the company was a charity,

lies on the person making that allegation.

(4) Where a company is a charity, the ratification of an act under Article 45(3) of the Companies Order, or the ratification of a transaction to which Article 330A of that Order applies (invalidity of certain transactions to which directors or their associates are parties), is ineffective without the prior written consent of the Department.

Charitable companies: status to appear on correspondence, etc.

9B.  (1)  Where a company is a charity and its name does not include the word “charity” or the word “charitable”, the fact that the company is a charity shall be stated in English in legible characters—

(a)in all business letters of the company,

(b)in all its notices and other official publications,

(c)in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company,

(d)in all conveyances purporting to be executed by the company, and

(e)in all its bills of parcels, invoices, receipts and letters of credit.

(2) In paragraph (1)(d) “conveyance” means any instrument creating, transferring, varying or extinguishing an interest in land.

(3) Article 357(2) to (4) of the Companies Order (offences in connection with failure to include required particulars in business letters, &c.) apply in relation to a contravention of paragraph (1)..

(2) In Article 2(2) of the Charities (Northern Ireland) Order 1987(2) (definitions), at the appropriate place insert—

“company” means a company formed and registered under the Companies Order, or to which the provisions of that Order apply as they apply to such a company;

“Companies Order” means the Companies (Northern Ireland) Order 1986;.

De-regulation of private companies

Written resolutions of private companies

48.  (1)  Chapter IV of Part XII of the Companies Order (meetings and resolutions) is amended as follows.

(2) After Article 389 insert—

Written resolutions of private companies
Written resolutions of private companies

389A.  (1)  Anything which in the case of a private company may be done—

(a)by resolution of the company in general meeting, or

(b)by resolution of a meeting of any class of members of the company,

may be done, without a meeting and without any previous notice being required, by resolution in writing signed by or on behalf of all the members of the company who at the date of the resolution would be entitled to attend and vote at such meeting.

(2) The signatures need not be on a single document provided each is on a document which accurately states the terms of the resolution.

(3) The date of the resolution means when the resolution is signed by or on behalf of the last member to sign.

(4) A resolution agreed to in accordance with this Article has effect as if passed—

(a)by the company in general meeting, or

(b)by a meeting of the relevant class of members of the company,

as the case may be; and any reference in any statutory provision to a meeting at which a resolution is passed or to members voting in favour of a resolution shall be construed accordingly.

(5) Any reference in any statutory provision to the date of passing of a resolution is, in relation to a resolution agreed to in accordance with this Article, a reference to the date of the resolution, unless Article 389B(4) applies in which case it shall be construed as a reference to the date from which the resolution has effect.

(6) A resolution may be agreed to in accordance with this Article which would otherwise be required to be passed as a special, extraordinary or elective resolution; and any reference in any statutory provision to a special, extraordinary or elective resolution includes such a resolution.

(7) This Article has effect subject to the exceptions specified in Part I of Schedule 15A; and in relation to certain descriptions of resolution under this Article the procedural requirements of this Order have effect with the adaptations specified in Part II of that Schedule.

Rights of auditors in relation to written resolution

389B.  (1)  A copy of any written resolution proposed to be agreed to in accordance with Article 389A shall be sent to the company’s auditors.

(2) If the resolution concerns the auditors as auditors, they may within seven days from the day on which they receive the copy give notice to the company stating their opinion that the resolution should be considered by the company in general meeting or, as the case may be, by a meeting of the relevant class of members of the company.

(3) A written resolution shall not have effect unless—

(a)the auditors notify the company that in their opinion the resolution—

(i)does not concern them as auditors, or

(ii)does so concern them but need not be considered by the company in general meeting or, as the case may be, by a meeting of the relevant class of members of the company, or

(b)the period for giving a notice under paragraph (2) expires without any notice having been given in accordance with that paragraph.

(4) A written resolution previously agreed to in accordance with Article 389A shall not have effect until that notification is given or, as the case may be, that period expires.

Written resolutions: supplementary provisions

389C.  (1)  Articles 389A and 389B have effect notwithstanding any provision of the company’s memorandum or articles.

(2) Nothing in those Articles affects any statutory provision or rule of law as to—

(a)things done otherwise than by passing a resolution, or

(b)cases in which a resolution is treated as having been passed, or a person is precluded from alleging that a resolution has not been duly passed..

(3) After Article 390 insert—

Recording of written resolutions

390A.  (1)  Where a written resolution is agreed to in accordance with Article 389A which has effect as if agreed by the company in general meeting, the company shall cause a record of the resolution (and of the signatures) to be entered in a book in the same way as minutes of proceedings of a general meeting of the company.

(2) Any such record, if purporting to be signed by a director of the company or by the company secretary, is evidence of the proceedings in agreeing to the resolution; and where a record is made in accordance with this Article, then, until the contrary is proved, the requirements of this Order with respect to those proceedings shall be deemed to be complied with.

(3) Article 390(5) (penalties) applies in relation to a failure to comply with paragraph (1) as it applies in relation to a failure to comply with paragraph (1) of that Article and Article 391 (inspection of minute books) applies in relation to a record made in accordance with this Article as it applies in relation to the minutes of a general meeting..

Written resolutions: supplementary provisions

49.  (1)  In the Companies Order the following Schedule is inserted after Schedule 15—

SCHEDULE 15AWRITTEN RESOLUTIONS OF PRIVATE COMPANIES
PART IEXCEPTIONS

1.  Article 389A does not apply to—

(a)a resolution under Article 311 removing a director before the expiration of his period of office, or

(b)a resolution under Article 339 removing an auditor before the expiration of his term of office.

PART IIADAPTATION OF PROCEDURAL REQUIREMENTS
Introductory

2.  (1)  In this Part (which adapts certain requirements of this Order in relation to proceedings under Article 389A)—

(a)a “written resolution” means a resolution agreed to, or proposed to be agreed to, in accordance with that Article, and

(b)a “relevant member” means a member by whom, or on whose behalf, the resolution is required to be signed in accordance with that Article.

(2) A written resolution is not effective if any of the requirements of this Part is not complied with.

Article 105 (disapplication of pre-emption rights)

3.  (1)  The following adaptations have effect in relation to a written resolution under Article 105(2) (disapplication of pre-emption rights), or renewing a resolution under that provision.

(2) So much of Article 105(5) as requires the circulation of a written statement by the directors with a notice of meeting does not apply, but such a statement must be supplied to each relevant member at or before the time at which the resolution is supplied to him for signature.

(3) Article 105(6) (offences) applies in relation to the inclusion in any such statement of matter which is misleading, false or deceptive in a material particular.

Article 165 (financial assistance for purchase of company’s own shares or those of holding company)

4.  In relation to a written resolution giving approval under Article 165(4) or (5) (financial assistance for purchase of company’s own shares or those of holding company), Article 167(4)(a) (documents to be available at meeting) does not apply, but the documents referred to in that provision must be supplied to each relevant member at or before the time at which the resolution is supplied to him for signature.

Articles 174, 175 and 177 (authority for off-market purchase or contingent purchase contract of company’s own shares)

5.  (1)  The following adaptations have effect in relation to a written resolution—

(a)conferring authority to make an off-market purchase of the company’s own shares under Article 174(2),

(b)conferring authority to vary a contract for an off-market purchase of the company’s own shares under Article 174(7), or

(c)varying, revoking or renewing any such authority under Article 174(3).

(2) Article 174(5) (resolution ineffective if passed by exercise of voting rights by member holding shares to which the resolution relates) does not apply; but for the purposes of Article 389A(1) a member holding shares to which the resolution relates shall not be regarded as a member who would be entitled to attend and vote.

(3) Article 174(6) (documents to be available at company’s registered office and at meeting) does not apply, but the documents referred to in that provision and, where that provision applies by virtue of Article 174(7), the further documents referred to in that provision must be supplied to each relevant member at or before the time at which the resolution is supplied to him for signature.

(4) The above adaptations also have effect in relation to a written resolution in relation to which the provisions of Article 174(3) to (7) apply by virtue of—

(a)Article 175(2) (authority for contingent purchase contract), or

(b)Article 177(2) (approval of release of rights under contract approved under Article 174 or 175).

Article 183 (approval for payment out of capital)

6.  (1)  The following adaptations have effect in relation to a written resolution giving approval under Article 183(2) (redemption or purchase of company’s own shares out of capital).

(2) Article 184(2) (resolution ineffective if passed by exercise of voting rights by member holding shares to which the resolution relates) does not apply; but for the purposes of Article 389A(1) a member holding shares to which the resolution relates shall not be regarded as a member who would be entitled to attend and vote.

(3) Article 184(4) (documents to be available at meeting) does not apply, but the documents referred to in that provision must be supplied to each relevant member at or before the time at which the resolution is supplied to him for signature.

Article 327 (approval of director’s service contract)

7.  In relation to a written resolution approving any such term as is mentioned in Article 327(1) (director’s contract of employment for more than five years), Article 327(5) (documents to be available at company’s registered office and at meeting) does not apply, but the documents referred to in that provision must be supplied to each relevant member at or before the time at which the resolution is supplied to him for signature.

Article 345 (funding of director’s expenditure in performing his duties)

8.  In relation to a written resolution giving approval under Article 345(3)(a) (funding a director’s expenditure in performing his duties), the requirement of that provision that certain matters be disclosed at the meeting at which the resolution is passed does not apply, but those matters must be disclosed to each relevant member at or before the time at which the resolution is supplied to him for signature..

(2) The Schedule inserted after Schedule 15 to the Companies Order by the Companies (Mergers and Divisions) Regulations(Northern Ireland) 1987(3) is renumbered “15B”; and accordingly, in Articles 420A(1) and (8) and 660(1)(s) of that Order (also inserted by those regulations), for “15A” substitute “15B”.

Election by private company to dispense with certain requirements

50.  (1)  In Part V of the Companies Order (allotment of shares and debentures), in Article 90(1) (authority of company required for certain allotments) after “this Article” insert “or Article 90A”; and after that Article insert—

Election by private company as to duration of authority

90A.  (1)  A private company may elect (by elective resolution in accordance with Article 387A) that the provisions of thisArticle shall apply, instead of the provisions of Article 90(4) and (5), in relation to the giving or renewal, after the election, of an authority under that Article.

(2) The authority must state the maximum amount of relevant securities that may be allotted under it and may be given—

(a)for an indefinite period, or

(b)for a fixed period, in which case it must state the date on which it will expire.

(3) In either case an authority (including an authority contained in the articles) may be revoked or varied by the company in general meeting.

(4) An authority given for a fixed period may be renewed or further renewed by the company in general meeting.

(5) A resolution renewing an authority—

(a)must state, or re-state, the amount of relevant securitieswhich may be allotted under the authority or, as the case may be, the amount remaining to be allotted under it, and

(b)must state whether the authority is renewed for an indefinite period or for a fixed period, in which case it must state the date on which the renewed authority will expire.

(6) The references in this Article to the maximum amount of relevant securities that may be allotted shall be construed in accordance with Article 90(6).

(7) If an election under this Article ceases to have effect, an authority then in force which was given for an indefinite period or for a fixed period of more than five years—

(a)if given five years or more before the election ceases to have effect, shall expire forthwith, and

(b)otherwise, shall have effect as if it had been given for a fixed period of five years..

(2) In Chapter IV of Part XII of the Companies Order (meetings and resolutions), after Article 374 (annual general meeting) insert—

Election by private company to dispense with annual general meetings

374A.  (1)  A private company may elect (by elective resolution in accordance with Article 387A) to dispense with the holding of annual general meetings.

(2) An election has effect for the year in which it is made and subsequent years, but does not affect any liability already incurred by reason of default in holding an annual general meeting.

(3) In any year in which an annual general meeting would be required to be held but for the election, and in which no such meeting has been held, any member of the company may, by notice to the company not later than three months before the end of the year, require the holding of an annual general meeting in that year.

(4) If such a notice is given, the provisions of Article 374(1) and (4) apply with respect to the calling of the meeting and the consequences of default.

(5) If the election ceases to have effect, the company is not obliged under Article 374 to hold an annual general meeting in that year if, when the election ceases to have effect, less than three months of the year remains.

This does not affect any obligation of the company to hold an annual general meeting in that year in pursuance of a notice given under paragraph (3)..

(3) In the same Chapter, in Articles 377(4) and 386(3) (majority required to sanction short notice of meeting) insert—

  • A private company may elect (by elective resolution in accordance with Article 387A) that the above provisions shall have effect in relation to the company as if for the references to 95 per cent. there were substituted references to such lesser percentage, but not less than 90 per cent., as may be specified in the resolution or subsequently determined by the company in general meeting..

Elective resolution of private company

51.  In Chapter IV of Part XII of the Companies Order (meetings and resolutions) for Article 387A substitute—

Elective resolution of private company

387A.  (1)  An election by a private company for the purposes of—

(a)Article 90A (election as to duration of authority to allot shares),

(b)Article 260 (election to dispense with laying of accounts and reports before general meeting),

(c)Article 374A (election to dispense with holding of annual general meeting),

(d)Article 377(4) or 386(3) (election as to majority required to authorise short notice of meeting), or

(e)Article 394 (election to dispense with appointment of auditors annually),

shall be made by resolution of the company in general meeting in accordance with this Article.

Such a resolution is referred to in this Order as an “elective resolution”.

(2) An elective resolution is not effective unless—

(a)at least 21 days' notice in writing is given of the meeting, stating that an elective resolution is to be proposed and stating the terms of the resolution, and

(b)the resolution is agreed to at the meeting, in person or by proxy, by all the members entitled to attend and vote at the meeting.

(3) The company may revoke an elective resolution by passing an ordinary resolution to that effect.

(4) An elective resolution shall cease to have effect if the company is re-registered as a public company.

(5) An elective resolution may be passed or revoked in accordance with this Article, and the provisions referred to in paragraph (1) have effect, notwithstanding any contrary provision in the company’s articles of association..

Power to make further provision by regulations

52.  (1)  The Department may by regulations make provision enabling private companies to elect, by elective resolution in accordance with Article 387A of the Companies Order, to dispense with compliance with such requirements of that Order as may be specified in the regulations, being requirements which appear to the Department to relate primarily to the internal administration and procedure of companies.

(2) The regulations may add to, amend or repeal provisions of that Order and may provide for any such provision to have effect, where an election is made, subject to such adaptations and modifications as appear to the Department to be appropriate.

(3) The regulations may contain such transitional provisions as appear to the Department to be appropriate.

(4) No regulations under this Article shall be made unless a draft of the regulations has been laid before and approved by a resolution of the Assembly.

Appointment and removal of auditors and related matters

Introduction

53.  The following Articles amend the provisions of the Companies Order relating to auditors by inserting new provisions in Chapter V of Part XII of that Order in place of Articles 392 to 396 and 398 to 401.

Appointment of auditors

54.  (1)  The following Articles are inserted in Chapter V of Part XII of the Companies Order (auditors)—

Appointment of auditors
Duty to appoint auditors

392.  (1)  Every company shall appoint an auditor or auditors in accordance with this Chapter.

This is subject to Article 396A (dormant company exempt from obligation to appoint auditors).

(2) Auditors shall be appointed in accordance with Article 393 (appointment at general meeting at which accounts are laid), except in the case of a private company which has elected to dispense with the laying of accounts in which case the appointment shall be made in accordance with Article 393A.

(3) References in this Chapter to the end of the time for appointing auditors are to the end of the time within which an appointment must be made under Article 393(2) or 393A(2), according to whichever of those Articles applies.

(4) Articles 393 and 393A have effect subject to Article 394 under which a private company may elect to dispense with the obligation to appoint auditors annually.

Appointment at general meeting at which accounts laid

393.  (1)  This Article applies to every public company and to a private company which has not elected to dispense with the laying of accounts.

(2) The company shall, at each general meeting at which accounts are laid, appoint an auditor or auditors to hold office from the conclusion of that meeting until the conclusion of the next general meeting at which accounts are laid.

(3) The first auditors of the company may be appointed by the directors at any time before the first general meeting of the company at which accounts are laid; and auditors so appointed shall hold office until the conclusion of that meeting.

(4) If the directors fail to exercise their powers under paragraph (3), the powers may be exercised by the company in general meeting.

Appointment by private company which is not obliged to lay accounts

393A.  (1)  This Article applies to a private company which has elected in accordance with Article 260 to dispense with the laying of accounts before the company in general meeting.

(2) Auditors shall be appointed by the company in general meeting before the end of the period of 28 days beginning with the day on which copies of the company’s annual accounts for the previous financial year are sent to members under Article 246 or, if notice is given under Article 261(2) requiring the laying of the accounts before the company in general meeting, the conclusion of that meeting.

Auditors so appointed shall hold office from the end of that period or, as the case may be, the conclusion of that meeting until the end of the time for appointing auditors for the next financial year.

(3) The first auditors of the company may be appointed by the directors at any time before—

(a)the end of the period of 28 days beginning with the day on which copies of the company’s first annual accounts are sent to members under Article 246, or

(b)if notice is given under Article 261(2) requiring the laying of the accounts before the company in general meeting, the beginning of that meeting;

and auditors so appointed shall hold office until the end of that period or, as the case may be, the conclusion of that meeting.

(4) If the directors fail to exercise their powers under paragraph (3), the powers may be exercised by the company in general meeting.

(5) Auditors holding office when the election is made shall, unless the company in general meeting determines otherwise, continue to hold office until the end of the time for appointing auditors for the next financial year; and auditors holding office when an election ceases to have effect shall continue to hold office until the conclusion of the next general meeting of the company at which accounts are laid.

Election by private company to dispense with annual appointment

394.  (1)  A private company may elect (by elective resolution in accordance with Article 387A) to dispense with the obligation to appoint auditors annually.

(2) When such an election is in force the company’s auditors shall be deemed to be re-appointed for each succeeding financial year on the expiry of the time for appointing auditors for that year, unless—

(a)a resolution has been passed under Article 258 by virtue of which the company is exempt from the obligation to appoint auditors, or

(b)a resolution has been passed under Article 401 to the effect that their appointment should be brought to an end.

(3) If the election ceases to be in force, the auditors then holding office shall continue to hold office—

(a)where Article 393 then applies, until the conclusion of the next general meeting of the company at which accounts are laid;

(b)where Article 393A then applies, until the end of the time for appointing auditors for the next financial year under that Article.

(4) No account shall be taken of any loss of the opportunity of further deemed re-appointment under this Article in ascertaining the amount of any compensation or damages payable to an auditor on his ceasing to hold office for any reason.

Appointment by Department in default of appointment by company

395.  (1)  If in any case no auditors are appointed, re-appointed or deemed to be re-appointed before the end of the time for appointing auditors, the Department may appoint a person to fill the vacancy.

(2) In such a case the company shall within one week of the end of the time for appointing auditors give notice to the Department of its power having become exercisable.

If a company fails to give the notice required by this Article, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

Filling of casual vacancies

396.  (1)  The directors, or the company in general meeting, may fill a casual vacancy in the office of auditor.

(2) While such a vacancy continues, any surviving or continuing auditor or auditors may continue to act.

(3) Special notice is required for a resolution at a general meeting of a company—

(a)filling a casual vacancy in the office of auditor, or

(b)re-appointing as auditor a retiring auditor who was appointed by the directors to fill a casual vacancy.

(4) On receipt of notice of such an intended resolution the company shall forthwith send a copy of it—

(a)to the person proposed to be appointed, and

(b)if the casual vacancy was caused by the resignation of an auditor, to the auditor who resigned.

Dormant company exempt from obligation to appoint auditors

396A.  (1)  A company which by virtue of Article 258 (dormant companies: exemption from provisions as to audit of accounts) is exempt from the provisions of Part VIII relating to the audit of accounts is also exempt from the obligation to appoint auditors.

(2) The following provisions apply if the exemption ceases.

(3) Where Article 393 applies (appointment at general meeting at which accounts are laid), the directors may appoint auditors at any time before the next meeting of the company at which accounts are to be laid; and auditors so appointed shall hold office until the conclusion of that meeting.

(4) Where Article 393A applies (appointment by private company not obliged to lay accounts), the directors may appoint auditors at any time before—

(a)the end of the period of 28 days beginning with the day on which copies of the company’s annual accounts are next sent to members under Article 246, or

(b)if notice is given under Article 261(2) requiring the laying of the accounts before the company in general meeting, the beginning of that meeting;

and auditors so appointed shall hold office until the end of that period or, as the case may be, the conclusion of that meeting.

(5) If the directors fail to exercise their powers under paragraph (3) or (4), the powers may be exercised by the company in general meeting..

(2) In Schedule 23 to the Companies Order (punishment of offences), at the appropriate place insert—

395(2)Company failing to give Department notice of non-appointment of auditors.Summary.One-fifth of the statutory maximum.One-fiftieth of the statutory maximum..

(3) In section 46(4) of the Banking Act 1987(4) (duty of auditor of authorised institution to give notice to Bank of England of certain matters) for “Articles 392” substitute “Chapter V of Part XII and Articles”.

Rights of auditors

55.  (1)  The following Articles are inserted in Chapter V of Part XII of the Companies Order (auditors)—

Rights of auditors
Rights to information

397A.  (1)  The auditors of a company have a right of access at all times to the company’s books, accounts and vouchers, and are entitled to require from the company’s officers such information and explanations as they think necessary for the performance of their duties as auditors.

(2) An officer of a company commits an offence if he knowingly or recklessly makes to the company’s auditors a statement (whether written or oral) which—

(a)conveys or purports to convey any information or explanations which the auditors require, or are entitled to require, as auditors of the company, and

(b)is misleading, false or deceptive in a material particular.

  • A person guilty of an offence under this paragraph is liable to imprisonment or a fine, or both.

(3) A subsidiary undertaking which is a body corporate incorporated in Northern Ireland, and the auditors of such an undertaking, shall give to the auditors of any parent company of the undertaking such information and explanations as they may reasonably require for the purposes of their duties as auditors of that company.

If a subsidiary undertaking fails to comply with this paragraph, the undertaking and every officer of it who is in default is guilty of an offence and liable to a fine; and if an auditor fails without reasonable excuse to comply with this paragraph he is guilty of an offence and liable to a fine.

(4) A parent company having a subsidiary undertaking which is not a body corporate incorporated in Northern Ireland shall, if required by its auditors to do so, take all such steps as are reasonably open to it to obtain from the subsidiary undertaking such information and explanations as they may reasonably require for the purposes of their duties as auditors of that company.

If a parent company fails to comply with this paragraph, the company and every officer of it who is in default is guilty of an offence and liable to a fine.

(5) Article 680B (criminal proceedings against unincorporated bodies) applies to an offence under paragraph (3).

Right to attend company meetings, &c.

398.  (1)  A company’s auditors are entitled—

(a)to receive all notices of, and other communications relating to, any general meeting which a member of the company is entitled to receive;

(b)to attend any general meeting of the company; and

(c)to be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as auditors.

(2) In relation to a written resolution proposed to be agreed to by a private company in accordance with Article 389A, the company’s auditors are entitled—

(a)to receive all such communications relating to the resolution as, by virtue of any provision of Schedule 15A, are required to be supplied to a member of the company,

(b)to give notice in accordance with Article 389B of their opinion that the resolution concerns them as auditors and should be considered by the company in general meeting or, as the case may be, by a meeting of the relevant class of members of the company,

(c)to attend any such meeting, and

(d)to be heard at any such meeting which they attend on any part of the business of the meeting which concerns them as auditors.

(3) The right to attend or be heard at a meeting is exercisablein the case of a body corporate or partnership by an individual authorised by it in writing to act as its representative at the meeting..

(2) In Schedule 23 to the Companies Order (punishment of offences) at the appropriate place insert—

397A(2)Officer of a company making false, misleading or deceptive statement to auditors.1. On indictment. 2. Summary.2 years or a fine; or both. 6 months or the statutory maximum; or both.
397A(3)Subsidiary undertaking or its auditor failing to give information to auditors of parent company.Summary.One-fifth of the statutory maximum.
397A(4)Parent company failing to obtain from subsidiary undertaking information for purposes of audit.Summary.One-fifth of the statutory maximum..

Remuneration of auditors

56.  The following Articles are inserted in Chapter V of Part XII of the Companies Order (auditors)—

Remuneration of auditors
Remuneration of auditors

398A.  (1)  The remuneration of auditors appointed by the company in general meeting shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine.

(2) The remuneration of auditors appointed by the directors or the Department shall be fixed by the directors or the Department, as the case may be.

(3) There shall be stated in a note to the company’s annual accounts the amount of the remuneration of the company’s auditors in their capacity as such.

(4) For the purposes of this Article “remuneration” includes sums paid in respect of expenses.

(5) This Article applies in relation to benefits in kind as to payments in cash, and in relation to any such benefit references to its amount are to its estimated money value.

The nature of any such benefit shall also be disclosed.

Remuneration of auditors or their associates for non-audit work

398B.  (1)  The Department may make provision by regulations for securing the disclosure of the amount of any remuneration received or receivable by a company’s auditors or their associates in respect of services other than those of auditors in their capacity as such.

(2) The regulations may—

(a)provide that “remuneration” includes sums paid in respect of expenses,

(b)apply in relation to benefits in kind as to payments in cash, and in relation to any such benefit require disclosure of its nature and its estimated money value,

(c)define “associate” in relation to an auditor,

(d)require the disclosure of remuneration in respect of services rendered to associated undertakings of the company, and

(e)define “associated undertaking” for that purpose.

(3) The regulations may require the auditors to disclose the relevant information in their report or require the relevant information to be disclosed in a note to the company’s accounts and require the auditors to supply the directors of the company with such information as is necessary to enable that disclosure to be made..

Removal, resignation, &c. of auditors

57.  (1)  The following Articles are inserted in Chapter V of Part XII of the Companies Order (auditors)—

Removal, resignation, &c. of auditors
Removal of auditors

399.  (1)  A company may by ordinary resolution at any time remove an auditor from office, notwithstanding anything in any agreement between it and him.

(2) Where a resolution removing an auditor is passed at a general meeting of a company, the company shall within 14 days give notice of that fact in the prescribed form to the registrar.

If a company fails to give the notice required by this paragraph, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

(3) Nothing in this Article shall be taken as depriving a person removed under it of compensation or damages payable to him in respect of the termination of his appointment as auditor or of any appointment terminating with that as auditor.

(4) An auditor of a company who has been removed has, notwithstanding his removal, the rights conferred by Article 398 in relation 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.

In such a case the references in that Article to matters concerning the auditors as auditors shall be construed as references to matters concerning him as a former auditor.

Rights of auditors who are removed or not re-appointed

399A.  (1)  Special notice is required for a resolution at a general meeting of a company—

(a)removing an auditor before the expiration of his term of office, or

(b)appointing as auditor a person other than a retiring auditor.

(2) On receipt of notice of such an intended resolution the company shall forthwith send a copy of it to the person proposed to be removed or, as the case may be, to the person proposed to be appointed and to the retiring auditor.

(3) The auditor proposed to be removed or (as the case may be) the retiring 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.

(4) The company shall (unless the representations are received by it too late for it to do so)—

(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 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 prejudice to his right to be heard orally) require that the representations be read out at the meeting.

(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 rights conferred by this Article are being abused to secure needless publicity for defamatory matter; and the court may order the company’s costs on the application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.

Resignation of auditors

400.  (1)  An auditor of a company may resign his office by depositing a notice in writing to that effect at the company’s registered office.

The notice is not effective unless it is accompanied by the statement required by Article 401A.

(2) 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 as may be specified in it.

(3) The company shall within 14 days of the deposit of a notice of resignation send a copy of the notice to the registrar.

If default is made in complying with this paragraph, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, a daily default fine.

Rights of resigning auditors

400A.  (1)  This Article applies where an auditor’s notice of resignation is accompanied by a statement of circumstances which he considers should be brought to the attention of members or creditors of the company.

(2) He may deposit with the notice a signed requisition calling on the directors of the company forthwith duly to convene an extraordinary general meeting of the company for the purpose of receiving and considering such explanation of the circumstances connected with his resignation as he may wish to place before the meeting.

(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 resignation,

a statement in writing (not exceeding a reasonable length) of the circumstances connected with his resignation.

(4) The company shall (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

(b)send a copy of the statement to every member of thecompany to whom notice of the meeting is or has been sent.

(5) If the directors do not within 21 days from the date of the deposit of a requisition under this Article 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, every director who failed to take all reasonable steps to secure that a meeting was convened as mentioned above is guilty of an offence and liable to a fine.

(6) 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 at the meeting.

(7) 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 rights conferred by this Article are being abused to secure needless publicity for defamatory matter; and the court may order the company’s costs 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.

(8) An auditor who has resigned has, notwithstanding his resignation, the rights conferred by Article 398 in relation to any such general meeting of the company as is mentioned in paragraph (3)(a) or (b). In such a case the references in that Article to matters concerning the auditors as auditors shall be construed as references to matters concerning him as a former auditor.

Termination of appointment of auditors not appointed annually

401.  (1)  When an election is in force under Article 394 (election by private company to dispense with annual appointment), any member of the company may deposit notice in writing at the company’s registered office proposing that the appointment of the company’s auditors be brought to an end.

No member may deposit more than one such notice in any financial year of the company.

(2) If such a notice is deposited it is the duty of the directors—

(a)to convene a general meeting of the company for a date not more than 28 days after the date on which the notice was given, and

(b)to propose at the meeting a resolution in a form enabling the company to decide whether the appointment of the company’s auditors should be brought to an end.

(3) If the decision of the company at the meeting is that the appointment of the auditors should be brought to an end, the auditors shall not be deemed to be re-appointed when next they would be and, if the notice was deposited within the period immediately following the distribution of accounts, any deemed re-appointment for the financial year following that to which those accounts relate which has already occurred shall cease to have effect.

The period immediately following the distribution of accounts means the period beginning with the day on which copies of the company’s annual accounts are sent to members of the company under Article 246 and ending 14 days after that day.

(4) If the directors do not within 14 days from the date of the deposit of the notice proceed duly to convene a meeting, the member who deposited the notice (or, if there was more than one, any of them) may himself convene the meeting; but any meeting so convened shall not be held after the expiration of three months from that date.

(5) A meeting convened under this Article by a member shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by directors.

(6) Any reasonable expenses incurred by a member by reason of the failure of the directors duly to convene a meeting shall be made good to him by the company; and any such sums shall be recouped by the company from such of the directors as were in default out of any sums payable, or to become payable, by the company by way of fees or other remuneration in respect of their services.

(7) This Article has effect notwithstanding anything in any agreement between the company and its auditors; and no compensation or damages shall be payable by reason of the auditors' appointment being terminated under this Article..

(2) In Schedule 23 to the Companies Order (punishment of offences), at the appropriate place insert—

399(2)Failing to give notice to registrar of removal of auditor.Summary.One-fifth of the statutory maximum.One-fiftieth of the statutory maximum.
400(3)Company failing to forward notice of auditor’s resignation to registrar.1. On indictment. 2. Summary.A fine. The statutory maximum.One-tenth of the statutory maximum.
400A(5)Directors failing to convene meeting requisitioned by resigning auditor.1. On indictment. 2. Summary.A fine. The statutory maximum..

Statement by person ceasing to hold office as auditor

58.  (1)  The following Articles are inserted in Chapter V of Part XII of the Companies Order (auditors)—

Statement by person ceasing to hold office as auditor

401A.  (1)  Where an auditor ceases for any reason to hold office, he shall deposit at the company’s registered office a statement of any circumstances connected with his ceasing to hold office which he considers should be brought to the attention of the members or creditors of the company or, if he considers that there are no such circumstances, a statement that there are none.

(2) In the case of resignation, the statement shall be deposited along with the notice of resignation; in the case of failure to seek re-appointment, the statement shall be deposited not less than 14 days before the end of the time allowed for next appointing auditors; in any other case, the statement shall be deposited not later than the end of the period of 14 days beginning with the date on which he ceases to hold office.

(3) If the statement is of circumstances which the auditor considers should be brought to the attention of the members or creditors of the company, the company shall within 14 days of the deposit of the statement either—

(a)send a copy of it to every person who under Article 246 is entitled to be sent copies of the accounts, or

(b)apply to the court.

(4) The company shall if it applies to the court notify the auditor of the application.

(5) Unless the auditor receives notice of such an application before the end of the period of 21 days beginning with the day on which he deposited the statement, he shall within a further seven days send a copy of the statement to the registrar.

(6) If the court is satisfied that the auditor is using the statement to secure needless publicity for defamatory matter—

(a)it shall direct that copies of the statement need not be sent out, and

(b)it may further order the company’s costs on the application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application;

and the company shall within 14 days of the court’s decision send to the persons mentioned in paragraph (3)(a) a statement setting out the effect of the order.

(7) If the court is not so satisfied, the company shall within 14 days of the court’s decision—

(a)send copies of the statement to the persons mentioned in paragraph (3)(a), and

(b)notify the auditor of the court’s decision;

and the auditor shall within seven days of receiving such notice send a copy of the statement to the registrar.

Offences of failing to comply with Article 401A

401B.  (1)  If a person ceasing to hold office as auditor fails to comply with Article 401A he is guilty of an offence and liable to a fine.

(2) In proceedings for an offence under paragraph (1) it is a defence for the person charged to show that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

(3) Articles 680A (liability of individuals for corporate default) and 680B (criminal proceedings against unincorporated bodies) apply to an offence under paragraph (1).

(4) If a company makes default in complying with Article 401A, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine..

(2) In Schedule 21 to the Companies Order (unregistered companies), in the entry for Articles 392 to 401 for “401” substitute “401B”.

(3) In Schedule 23 to the Companies Order (punishment of offences), at the appropriate place insert—

401B(1)Person ceasing to hold office as auditor failing to deposit statement as to circumstances.1. On indictment. 2. Summary.A fine. The statutory maximum.
401B(4)Company failing to comply with requirements as to statement of person ceasing to hold office as auditor.1. On indictment. 2. Summary.A fine. The statutory maximum.One-tenth of the statutory maximum..

Company records and related matters

Delivery of documents to the registrar

59.  (1)  For Article 655 of the Companies Order (size, durability, &c. of documents delivered to the registrar) substitute—

Delivery to the registar of documents in legible form

655.  (1)  This Article applies to the delivery to the registrar under any provision of the Companies Orders of documents in legible form.

(2) The document must—

(a)state in a prominent position the registered number of the company to which it relates,

(b)satisfy any requirements prescribed by regulations for the purposes of this Article, and

(c)conform to such requirements as the registrar may specify for the purpose of enabling him to copy the document.

(3) If a document is delivered to the registrar which does not comply with the requirements of this Article, he may serve on the person by whom the document was delivered (or, if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

(4) Where the registrar serves such a notice, then, unless a replacement document—

(a)is delivered to him within 14 days after the service of the notice, and

(b)complies with the requirements of this Article (or Article 656) or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

But for the purposes of any statutory provision imposing a penalty for failure to deliver, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after service of the registrar’s notice..

(2) For Article 656 of the Companies Order (power of registrar to accept information on microfilm, &c.) substitute—

Delivery to the registrar of documents otherwise than in legible form

656.  (1)  This Article applies to the delivery to the registrar under any provision of the Companies Orders of documents otherwise than in legible form.

(2) Any requirement to deliver a document to the registrar, or to deliver a document in the prescribed form, is satisfied by the communication to the registrar of the requisite information in any non-legible form prescribed for the purposes of this Article by regulations or approved by the registrar.

(3) Where the document is required to be signed or sealed, it shall instead be authenticated in such manner as may be prescribed by regulations or approved by the registrar.

(4) The document must—

(a)contain in a prominent position the registered number of the company to which it relates,

(b)satisfy any requirements prescribed by regulations for the purposes of this Article, and

(c)be furnished in such manner, and conform to such requirements, as the registrar may specify for the purpose of enabling him to read and copy the document.

(5) If a document is delivered to the registrar which does not comply with the requirements of this Article, he may serve on the person by whom the document was delivered (or, if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

(6) Where the registrar serves such a notice, then, unless a replacement document—

(a)is delivered to him within 14 days after the service of the notice, and

(b)complies with the requirements of this Article (or Article 655) or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

But for the purposes of any statutory provision imposing a penalty for failure to deliver, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after service of the registrar’s notice.

(7) The Department may by regulations make further provision with respect to the application of this Article in relation to instantaneous forms of communication..

Keeping and inspection of company records

60.  (1)  In Part XXIV of the Companies Order (the registrar of companies, his functions and office), after Article 656 insert—

The keeping of company records by the registrar

656A.  (1)  The information contained in a document delivered to the registrar under the Companies Orders may be recorded and kept by him in any form he thinks fit, provided it is possible to inspect the information and to produce a copy of it in legible form.

This is sufficient compliance with any duty of his to keep, file or register the document.

(2) The originals of documents delivered to the registrar in legible form shall be kept by him for ten years, after which they may be destroyed.

(3) Where a company has been dissolved, the registrar may, at any time after the expiration of two years from the date of the dissolution, direct that any records in his custody relating to the company may be removed to the Public Record Office of Northern Ireland; and records in respect of which such a direction is given shall be disposed of in accordance with the statutory provisions relating to that Office.

(4) In paragraph (3) “company” includes a company provisionally or completely registered under the Joint Stock Companies Act 1844..

(2) For Articles 658 and 659 of the Companies Order (inspection of documents kept by the registrar) substitute—

Inspection, &c. of records kept by the registrar

658.  (1)  Any person may inspect any records kept by the registrar for the purposes of the Companies Orders and may require—

(a)a copy, in such form as the registrar considers appropriate, of any information contained in those records, or

(b)a certified copy of, or extract from, any such record.

(2) The right of inspection extends to the originals of documents delivered to the registrar in legible form only where the record kept by the registrar of the contents of the document is illegible or unavailable.

(3) A copy of or extract from a record kept at the office for the registration of companies, certified in writing by the registrar (whose official position it is unnecessary to prove) to be an accurate record of the contents of any document delivered to him under the Companies Orders, is in all legal proceedings admissible in evidence as of equal validity with the original document and as evidence of any fact stated therein of which direct oral evidence would be admissible.

This is subject to compliance with any applicable rules of court under section 2 of the Civil Evidence Act (Northern Ireland) 1971 or Article 68(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (which relate to evidence from computer records).

(4) Copies of or extracts from records furnished by the registrar may, instead of being certified by him in writing to be an accurate record, be sealed with his official seal.

(5) No process for compelling the production of a record kept by the registrar shall issue from any court except with the leave of the court; and any such process shall bear on it a statement that it is issued with the leave of the court.

Certificate of incorporation

659.  Any person may require a certificate of the incorporation of a company, signed by the registrar or authenticated by his official seal.

Provision and authentication by registrar of documents is non-legible form

659A.  (1)  Any requirement of the Companies Orders as to the supply by the registrar of a document may, if the registrar thinks fit, be satisfied by the communication by the registrar of the requisite information in any non-legible form prescribed for the purposes of this Article by regulations or approved by him.

(2) Where the document is required to be signed by him or sealed with his official seal, it shall instead be authenticated in such manner as may be prescribed by regulations or approved by the registrar..

Supplementary provisions as to company records and related matters

61.  (1)  In Part XXIV of the Companies Order (the registrar of companies, his functions and offices), after Article 664 insert—

Interpretation

664A.  (1)  In this Part—

“document” includes information recorded in any form; and

“legible”, in the context of documents in legible or non-legible form, means capable of being read with the naked eye.

(2) References in this Part to delivering a document include sending, forwarding, producing or (in the case of a notice) giving it..

(2) In Article 657(1) of the Companies Order (fees)—

(a)in sub-paragraph (a) for the words from “any notice or other document” to the end substitute “any document which under those Orders is required to be delivered to him”, and

(b)in sub-paragraph (b) omit “or other material”.

(3) Omit Articles 661 and 664 of the Companies Order (removal and destruction of old records).

(4) In Article 662(1) (enforcement of duty to make returns, &c.), for the words from “file with” to “or other document” substitute “deliver a document to the registrar”.

(5) In Article 2A(3) of the Companies Order (provisions applying to other statutory provisions as to the Companies Orders)—

(a)after “656(1),” insert “656A(1),”,

(b)after “657(1)(a) and (3),” insert “658(1) and (3),”, and

(c)for “659(4)” substitute “659A”.

(6) After Article 2A of the Companies Order insert—

Relationship of this Order to Parts IV and V of the Financial Services Act 1986

2B.  In Articles 655(1), 656(1), 656A(1), 657(1)(a) and (3), 658(1) and (3), 659A and 662(1) references to the Companies Orders include Parts IV and V of the Financial Services Act 1986..

(7) In Schedule 21 to the Companies Order (unregistered companies), in the entry for Part XXIV for “Articles 655, 657 to 659, 661 and 662” substitute “Articles 655 to 659A, 662 and 664A”.

Miscellaneous

“Subsidiary”, “holding company” and “wholly-owned subsidiary”

62.  (1)  In Part I of the Companies Order (introductory and interpretation), for Article 4 substitute—

“Subsidiary”, “holding company” and “wholly-owned subsidiary”

4.  (1)  A company is a “subsidiary” of another company, its “holding company”, if that other company—

(a)holds a majority of the voting rights in it, or

(b)is a member of it and has the right to appoint or remove a majority of its board of directors, or

(c)is a member of it and controls alone, pursuant toan agreement with other shareholders or members, amajority of the voting rights in it,

or if it is a subsidiary of a company which is itself a subsidiary of that other company.

(2) A company is a “wholly-owned subsidiary” of another company if it has no members except that other and that other’s wholly-owned subsidiaries or persons acting on behalf of that other or its wholly-owned subsidiaries.

(3) In this Article “company” includes any body corporate.

Provisions supplementing Article 4

4A.  (1)  The provisions of this Article explain expressions used in Article 4 and otherwise supplement that Article.

(2) In Article 4(1)(a) and (c) the references to the voting rights in a company are to the rights conferred on shareholders in respect of their shares or, in the case of a company not having a share capital, on members, to vote at general meetings of the company on all, or substantially all, matters.

(3) In Article 4(1)(b) the reference to the right to appoint or remove a majority of the board of directors is to the right to appoint or remove directors holding a majority of the voting rights at meetings of the board on all, or substantially all, matters; and for the purposes of that provision—

(a)a company shall be treated as having the right to appoint to a directorship if—

(i)a person’s appointment to it follows necessarily from his appointment as director of the company, or

(ii)the directorship is held by the company itself; and

(b)a right to appoint or remove which is exercisable only with the consent or concurrence of another person shall be left out of account unless no other person has a right to appoint or, as the case may be, remove in relation to that directorship.

(4) Rights which are exercisable only in certain circumstances shall be taken into account only—

(a)when the circumstances have arisen, and for so long as they continue to obtain, or

(b)when the circumstances are within the control of the person having the rights;

and rights which are normally exercisable but are temporarily incapable of exercise shall continue to be taken into account.

(5) Rights held by a person in a fiduciary capacity shall be treated as not held by him.

(6) Rights held by a person as nominee for another shall be treated as held by the other; and rights shall be regarded as held as nominee for another if they are exercisable only on his instructions or with his consent or concurrence.

(7) Rights attached to shares held by way of security shall be treated as held by the person providing the security—

(a)where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with his instructions;

(b)where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in his interests.

(8) Rights shall be treated as held by a company if they are held by any of its subsidiaries; and nothing in paragraph (6) or (7) shall be construed as requiring rights held by a company to be treated as held by any of its subsidiaries.

(9) For the purposes of paragraph (7) rights shall be treated as being exercisable in accordance with the instructions or in the interests of a company if they are exercisable in accordance with the instructions of or, as the case may be, in the interests of—

(a)any subsidiary or holding company of that company, or

(b)any subsidiary of a holding company of that company.

(10) The voting rights in a company shall be reduced by any rights held by the company itself.

(11) References in any provision of paragraphs (5) to (10) to rights held by a person include rights falling to be treated as held by him by virtue of any other provision of those paragraphs but not rights which by virtue of any such provision are to be treated as not held by him.

(12) In this Article “company” includes any body corporate..

(2) Any reference in any statutory provision to a “subsidiary” or “holding company” within the meaning of Article 4 of the Companies Order shall, subject to any express amendment or saving made by or under this Order, be read as referring to a subsidiary orholding company as defined in Article 4 as substituted by paragraph(1).

This applies whether the reference is specific or general, or express or implied.

(3) In Part I of the Companies Order (introductory and interpretation) after Article 4A insert—

Power to amend Articles 4 and 4A

4B.  (1)  The Department may by regulations amend Articles 4 and 4A so as to alter the meaning of the expressions “holding company”, “subsidiary” or “wholly-owned subsidiary”.

(2) Any amendment made by regulations under this Article does not apply for the purposes of statutory provisions outside the Companies Orders unless the regulations so provide.

(3) So much of section 29(1) of the Interpretation Act (Northern Ireland) 1954 (effect of repeal and re-enactment) as relates to statutory documents shall not apply in relation to any repeal and re-enactment effected by regulations made under this Article..

(4) Schedule 3 contains amendments and savings consequential on the amendments made by this Article; and the Department may by regulations make such further amendments or savings as appear to it to be necessary or expedient.

(5) So much of section 29(1) of the Interpretation Act (Northern Ireland) 1954(5) (effect of repeal and re-enactment) as relates to statutory documents shall not apply in relation to the repeal and re-enactment by this Article of Article 4 of the Companies Order.

Form of articles for partnership company

63.  In Chapter I of Part II of the Companies Order (company formation), after Article 19 (Tables A, C, D and E) insert—

Table G

19A.  (1)  The Department may by regulations prescribe a Table G containing articles of association appropriate for a partnership company, that is, a company limited by shares whose shares are intended to be held to a substantial extent by or on behalf of its employees.

(2) A company limited by shares may for its articles adopt the whole or any part of that Table.

(3) If in consequence of regulations under this Article Table G is altered, the alteration does not affect a company registered before the alteration takes effect, or repeal as respects that company any portion of the Table..

Membership of holding company

64.  (1)  In Chapter I of Part II of the Companies Order (company formation), for Article 33 (membership of holding company) substitute—

Membership of holding company

33.  (1)  Except as mentioned in this Article, a body corporate cannot be a member of a company which is its holding company and any allotment or transfer of shares in a company to its subsidiary is void.

(2) The prohibition does not apply where the subsidiary is concerned only as personal representative or trustee unless, in the latter case, the holding company or a subsidiary of it is beneficially interested under the trust.

For the purpose of ascertaining whether the holding company or a subsidiary is so interested, there shall be disregarded—

(a)any interest held only by way of security for the purposes of a transaction entered into by the holding company or subsidiary in the ordinary course of a business which includes the lending of money;

(b)any such interest as is mentioned in Part I of Schedule 2.

(3) The prohibition does not apply where the subsidiary is concerned only as a market maker.

For this purpose a person is a market maker if—

(a)he holds himself out at all normal times in compliance with the rules of a recognised investment exchange other than an overseas investment exchange (within the meaning of the Financial Services Act 1986) as willing to buy and sell securities at prices specified by him, and

(b)he is recognised as so doing by that investment exchange.

(4) Where a body corporate became a holder of shares in a company—

(a)before 1st April 1961, or

(b)on or after that date and before the coming into operation of Article 64 of the Companies (No. 2) (Northern Ireland) Order 1990, in circumstances in which this Article as it then had effect did not apply,

but at any time after the coming into operation of that Article falls within the prohibition in paragraph (1) in respect of those shares, it may continue to be a member of that company; but for so long as that prohibition would apply, apart from this paragraph, it has no right to vote in respect of those shares at meetings of the company or of any class of its members.

(5) Where a body corporate becomes a holder of shares in a company after the coming into operation of that Article in circumstances in which the prohibition in paragraph (1) does not apply, but subsequently falls within that prohibition in respect of those shares, it may continue to be a member of that company; but for so long as that prohibition would apply, apart from this paragraph, it has no right to vote in respect of those shares at meetings of the company or of any class of its members.

(6) Where a body corporate is permitted to continue as a member of a company by virtue of paragraph (4) or (5), an allotment to it of fully paid shares in the company may be validly made by way of capitalisation of reserves of the company; but for so long as the prohibition in paragraph (1) would apply, apart from paragraph (4) or (5), it has no right to vote in respect of those shares at meetings of the company or of any class of its members.

(7) The provisions of this Article apply to a nominee acting on behalf of a subsidiary as to the subsidiary itself.

(8) In relation to a company other than a company limited by shares, the references in this Article to shares shall be construed as references to the interest of its members as such, whatever the form of that interest..

(2) In Schedule 2 to the Companies Order (interpretation of references to “beneficial interest”), in paragraphs 1(1), 3(1) and 4(2) for “as respects Article 33(4)” substitute “as this paragraph applies for the purposes of Article 33(2)”.

Company contracts and execution of documents by companies

65.  (1)  In Chapter III of Part II of the Companies Order (a company’s capacity; the formalities of carrying on business), for Article 46 (form of company contracts) substitute—

Form of company contracts

46.  A contract may be made—

(a)by a company, by writing under its common seal, or

(b)on behalf of a company, by any person acting under its authority, express or implied;

and any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company..

(2) After that Article insert—

Execution of documents

46A.  (1)  The following provisions have effect with respect to the execution of documents by a company.

(2) A document is executed by a company by the affixing of its common seal.

(3) A company need not have a common seal, however, and the following paragraphs apply whether it does or not.

(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.

(5) A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed.

(6) In favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company, and, where it makes it clear on its face that it is intended by the person or persons making it to be a deed, to have been delivered upon its being executed.

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property..

(3) After the Article inserted by paragraph (2) insert—

Pre-incorporation contracts and deeds

46B.  (1)  A contract which purports to be made by or on behalf of a company at a time when the company has not been formed has effect, subject to any agreement to the contrary, as one made with the person purporting to act for the company or as agent for it, and he is personally liable on the contract accordingly.

(2) Paragraph (1) applies to the making of a deed as it applies to the making of a contract..

(4) In Schedule 21 of the Companies Order (provisions applying to unregistered companies), at the appropriate place insert—

Article 46Company contracts.Subject to Article 667(3).
Article 46AExecution of documents.Subject to Article 667(3).
Article 46BPre-incorporation contracts and deeds.Subject to Article 667(3)..

(5) The Department may make provision by regulations applying Articles 46 to 46B of the Companies Order (company contracts; execution of documents; pre-incorporation contracts and deeds) to companies incorporated outside Northern Ireland, subject to such exceptions, adaptations or modifications as may be specified in the regulations.

(6) Schedule 4 contains further minor and consequential amendments relating to company contracts, the execution of documents by companies and related matters.

Members' rights to damages, &c.

66.  (1)  In Part V of the Companies Order (allotment of shares and debentures), before Article 122 and after the heading “Other matters arising out of allotment, etc.”, insert—

Right to damages, etc. not affected

121A.  A person is not debarred from obtaining damages or other compensation from a company by reason only of his holding or having held shares in the company or any right to apply or subscribe for shares or to be included in the company’s register in respect of shares..

(2) In Article 126 of the Companies Order (extended operation of certain provisions applying to public companies) for “and 120 to 125” substitute “, 120, 121 and 122 to 125”.

Financial assistance for purposes of employees' share scheme

67.  In Chapter VI of Part VI of the Companies Order (financial assistance by company for purchase of its own shares), in Article 163 (transactions not prohibited), for paragraph (4)(b) (provision of money in accordance with employees' share scheme) substitute—

(b)the provision by a company, in good faith in the interests of the company, of financial assistance for the purposes of an employees' share scheme,.

Issue of redeemable shares

68.  (1)  In Part VI of the Companies Order (share capital, its increase, maintenance and reduction), Chapter VII (redeemable shares, purchase by a company of its own shares) is amended as follows.

(2) After Article 169 (power to issue redeemable shares) insert—

Terms and manner of redemption

169A.  (1)  Redeemable shares may not be issued unless the following conditions are satisfied as regards the terms and manner of redemption.

(2) The date on or by which, or dates between which, the shares are to be or may be redeemed must be specified in the company’s articles or, if the articles so provide, fixed by the directors, and in the latter case the date or dates must be fixed before the shares are issued.

(3) Any other circumstances in which the shares are to be or may be redeemed must be specified in the company’s articles.

(4) The amount payable on redemption must be specified in, or determined in accordance with, the company’s articles, and in the latter case the articles must not provide for the amount to be determined by reference to any person’s discretion or opinion.

(5) Any other terms and conditions of redemption shall be specified in the company’s articles.

(6) Nothing in this Article shall be construed as requiring a company to provide in its articles for any matter for which provision is made by this Order..

(3) In Article 170 (financing, &c. of redemption)—

(a)omit paragraph (3) (which is superseded by the new Article 169A), and

(b)in paragraph (4) (cancellation of shares on redemption) for “redeemed under this Article” substitute “redeemed under this Chapter”.

(4) In Article 172 (power of company to purchase own shares), for paragraph (2) (application of provisions relating to redeemable shares) substitute—

(2) Articles 169, 170 and 171 apply to the purchase by a company under this Article of its own shares as they apply to the redemption of redeemable shares..

Disclosure of interests in shares

69.  (1)  Part VII of the Companies Order (disclosure of interests in shares) is amended as follows.

(2) In Article 207(2) (notifiable interests), for the words from “the percentage” to the end substitute “3 per cent. of the nominal value of that share capital”.

The order bringing the above amendment into operation may make such provision as appears to the Head of the Department appropriate as to the obligations of a person whose interest in a company’s shares becomes notifiable by virtue of the amendment coming into operation.

(3) In Articles 210(1) and (4) and 214(8) (which require notification of certain matters within a specified period) for “5 days” substitute “2 days”.

(4) In Article 210 (particulars to be contained in notification), for paragraph (3) substitute—

(3) A notification (other than one stating that a person no longer has a notifiable interest) shall include the following particulars, so far as known to the person making the notification at the date when it is made—

(a)the identity of each registered holder of shares to which the notification relates and the number of such shares held by each of them, and

(b)the number of such shares in which the interest of the person giving the notification is such an interest as is mentioned in Article 216(5)..

(5) After Article 218 insert—

Power to make further provision by regulations

218A.  (1)  The Department may by regulations amend—

(a)the definition of “relevant share capital” (Article 206(2)),

(b)the percentage giving rise to a “notifiable interest” (Article 207(2)),

(c)the periods within which an obligation of disclosure must be fulfilled or a notice must be given (Articles 210(1) and (4) and 214(8)),

(d)the provisions as to what is taken to be an interest in shares (Article 216) and what interests are to be disregarded (Article 217), and

(e)the provisions as to company investigations (Article 220);

and the regulations may amend, replace or repeal the provisions referred to above and make such other consequential amendments or repeals of provisions of this Part as appear to the Department to be appropriate.

(2) The regulations may contain such transitional provisions as appear to the Department to be appropriate, and may in particular make provision as to the obligations of a person whose interest in a company’s shares becomes or ceases to be notifiable by virtue of the regulations..

(6) Any regulations made under Article 217(1)(h) which are in force immediately before the repeal of that sub-paragraph by this Order shall have effect as if made under Article 218A(1)(d) as inserted by paragraph (5).

Orders imposing restrictions on shares

70.  (1)  The Department may by regulations make such amendments of the provisions of the Companies Order relating to orders imposing restrictions on shares as appear to it necessary or expedient—

(a)for enabling orders to be made in a form protecting the rights of third parties;

(b)with respect to the circumstances in which restrictions may be relaxed or removed;

(c)with respect to the making of interim orders by a court.

(2) The provisions referred to in paragraph (1) are Article 218(5), Article 224(1) and (2), Article 438 and Part XVI of the Companies Order.

(3) The regulations may contain such transitional provisions as appear to the Department to be appropriate.

(4) Regulations under this Article shall not be made unless a draft of the regulations has been laid before and approved by resolution of the Assembly.

A company’s registered office

71.  For Article 295 of the Companies Order (registered office) substitute—

Registered office

295.  (1)  A company shall at all times have a registered office to which all communications and notices may be addressed.

(2) On incorporation the situation of the company’s registered office is that specified in the statement sent to the registrar under Article 21.

(3) The company may change the situation of its registered office from time to time by giving notice in the prescribed form to the registrar.

(4) The change takes effect upon the notice being registered by the registrar, but until the end of the period of 14 days beginning with the date on which it is registered a person may validly serve any document on the company at its previous registered office.

(5) For the purposes of any duty of a company—

(a)to keep at its registered office, or make available for public inspection there, any register, index or other document, or

(b)to mention the address of its registered office in any document,

a company which has given notice to the registrar of a change in the situation of its registered office may act on the change as from such date, not more than 14 days after the notice is given, as it may determine.

(6) Where a company unavoidably ceases to perform at its registered office any such duty as is mentioned in paragraph (5)(a) in circumstances in which it was not practicable to give prior notice to the registrar of a change in the situation of its registered office, but—

(a)resumes performance of that duty at other premises as soon as practicable, and

(b)gives notice accordingly to the registrar of a change in the situation of its registered office within 14 days of doing so,

it shall not be treated as having failed to comply with that duty.

(7) In proceedings for an offence of failing to comply with any such duty as is mentioned in paragraph (5), it is for the person charged to show that by reason of the matters referred to in that paragraph or paragraph (6) no offence was committed..

Effecting of insurance for officers and auditors of company

72.  (1)  In Article 318 of the Companies Order (provisions exempting officers and auditors from liability), for paragraph (3) (permitted provisions) substitute—

(3) This Article does not prevent a company—

(a)from purchasing and maintaining for any such officer or auditor insurance against any such liability, or

(b)from indemnifying any such officer or auditor against any liability incurred by him—

(i)in defending any proceedings (whether civil or criminal) in which judgment is given in his favour or he is acquitted, or

(ii)in connection with any application under Article 154(3) or (4) (acquisition of shares by innocent nominee) or Article 675 (general power to grant relief in case of honest and reasonable conduct) in which relief is granted to him by the court..

(2) In Part I of Schedule 7 to the Companies Order (general matters to be dealt with in directors' report), after paragraph 5 insert—

Insurance effected for officers or auditors

5A.  Where in the financial year the company has purchased or maintained any such insurance as is mentioned in Article 318(3)(a) (insurance of officers or auditors against liabilities in relation to the company), that fact shall be stated in the report..

Increase of limits on certain exemptions

73.  Part XI of the Companies Order (enforcement of fair dealing by directors) is amended as follows—

(a)in Article 340(1)(b) (short-term quasi-loans) for “£1,000” substitute “£5,000”;

(b)in Article 342 (loans of small amounts) for “£2,500” substitute “£5,000”;

(c)in Article 346(4) and (6) (loans or quasi-loans by money-lending company) for “£50,000” substititute “£100,000”.

Annual returns

74.  (1)  In Part XII of the Companies Order (company administration and procedure), for Chapter III (annual return) substitute—

CHAPTER IIIANNUAL RETURN
Duty to deliver annual returns

371.  (1)  Every company shall deliver to the registrar successive annual returns each of which is made up to a date not later than the date which is from time to time the company’s “return date”, that is—

(a)the anniversary of the company’s incorporation, or

(b)if the company’s last return delivered in accordance with this Chapter was made up to a different date, the anniversary of that date.

(2) Each return shall—

(a)be in the prescribed form,

(b)contain the information required by or under the following provisions of this Chapter, and

(c)be signed by a director or the secretary of the company;

and it shall be delivered to the registrar within 28 days after the date on which it is made up.

(3) If a company fails to deliver an annual return in accordance with this Chapter before the end of the period of 28 days after a return date, the company is guilty of an offence and liable to a fine and, in the case of continued contravention, to a daily default fine.

The contravention continues until such time as an annual return made up to that return date and complying with the requirements of paragraph (2) (except as to date of delivery) is delivered by the company to the registrar.

(4) Where a company is guilty of an offence under paragraph (3), every director or secretary of the company is similarly liable unless he shows that he took all reasonable steps to avoid the commission or continuation of the offence.

(5) The references in this Article to a return being delivered “in accordance with this Chapter” are—

(a)in relation to a return made after the coming into operation of Article 74 of the Companies (No. 2) (Northern Ireland) Order 1990, to a return with respect to which all the requirements of paragraph (2) are complied with;

(b)in relation to a return made before that time, to a return with respect to which the formal and substantive requirements of this Chapter as it then had effect were complied with, whether or not the return was delivered in time.

Contents of annual return: general

372.  (1)  Every annual return shall state the date to which it is made up and shall contain the following information—

(a)the address of the company’s registered office;

(b)the type of company it is and its principal business activities;

(c)the name and address of the company secretary;

(d)the name and address of every director of the company;

(e)in the case of each individual director—

(i)his nationality, date of birth and business occupation, and

(ii)such particulars of other directorships and former names as are required to be contained in the company’s register of directors;

(f)in the case of any corporate director, such particulars of other directorships as would be required to be contained in that register in the case of an individual;

(g)if the register of members is not kept at the company’s registered office, the address of the place where it is kept;

(h)if any register of debenture holders (or a duplicate of any such register or a part of it) is not kept at the company’s registered office, the address of the place where it is kept;

(i)if the company has elected—

(i)to dispense under Article 260 with the laying of accounts and reports before the company in general meeting, or

(ii)to dispense under Article 374A with the holding of annual general meetings,

a statement to that effect.

(2) The information as to the company’s type shall be given by reference to the classification scheme prescribed for the purposes of this Article.

(3) The information as to the company’s principal business activities may be given by reference to one or more categories of any prescribed system of classifying business activities.

(4) A person’s “name” and “address” mean, respectively—

(a)in the case of an individual, his Christian name (or other forename) and surname and his usual residential address;

(b)in the case of a corporation or Scottish firm, its corporate or firm name and its registered or principal office.

(5) In the case of a peer, or 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.

(6) Where all the partners in a firm are joint secretaries, the name and principal office of the firm may be stated instead of the names and addresses of the partners.

Contents of annual return: particulars of share capital and shareholders

372A.  (1)  The annual return of a company having a share capital shall contain the following information with respect to its share capital and members.

(2) The return shall state the total number of issued shares of the company at the date to which the return is made up and the aggregate nominal value of those shares.

(3) The return shall state with respect to each class of shares in the company—

(a)the nature of the class, and

(b)the total number and aggregate nominal value of issued shares of that class at the date to which the return is made up.

(4) The return shall contain a list of the names and addresses of every person who—

(a)is a member of the company on the date to which the return is made up, or

(b)has ceased to be a member of the company since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company);

and if the names are not arranged in alphabetical order the return shall have annexed to it an index sufficient to enable the name of any person in the list to be easily found.

(5) The return shall also state—

(a)the number of shares of each class held by each member of the company at the date to which the return is made up, and

(b)the number of shares of each class transferred since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company) by each member or person who has ceased to be a member, and the dates of registration of the transfers.

(6) The return may, if either of the two immediately preceding returns has given the full particulars required by paragraphs (4) and (5), give only such particulars as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred since that date.

(7) Paragraphs (4) and (5) do not require the inclusion of particulars entered in an external branch register if copies of those entries have not been received at the company’s registered office by the date to which the return is made up.

Those particulars shall be included in the company’s next annual return after they are received.

(8) Where the company has converted any of its shares into stock, the return shall give the corresponding information in relation to that stock, stating the amount of stock instead of the number or nominal value of shares.

Supplementary provisions: regulations and interpretation

373.  (1)  The Department may by regulations make further provision as to the information to be given in a company’s annual return, which may amend or repeal the provisions of Articles 372 and 372A.

(2) For the purposes of this Chapter, except Article 371(2)(c) (signature of annual return), a shadow director shall be deemed to be a director..

(2) Where a company was, immediately before the coming into operation of this Article, in default with respect to the delivery of one or more annual returns, this Article does not affect its obligation to make such a return (in accordance with Chapter III of Part XII of the Companies Order as it then had effect) or any liability arising from failure to do so.

(3) In Schedule 23 to the Companies Order (punishment of offences) in the entry relating to Article 371(7), in the first column for “371(7)” substitute “371(3)” and for the words in the second column substitute “Company failing to deliver annual return in due time”.

(4) In Schedule 1 to the Companies (Northern Ireland) Order 1989(6) (matters relevant to determining unfitness of directors), in paragraph 4 (failure of company to comply with certain provisions), for sub-paragraphs (f) and (g) substitute—

(f)Article 371 (duty of company to make annual returns);.

(5) In section 565(7) of the Income and Corporation Taxes Act 1988(7) (conditions for exemption from provisions relating to sub-contractors in construction industry: compliance with requirements of Companies Order), in paragraph (d) for “Articles 371, 372 and 373” substitute “Articles 371 to 373”.

Application to declare dissolution of company void

75.  (1)  Article 602 of the Companies Order (power of court to declare dissolution of company void) is amended as follows.

(2) In paragraph (1) omit the words “at any time within 2 years of the date of the dissolution”.

(3) After paragraph (3) add—

(4) Subject to the following provisions, an application under this Article may not be made after the end of the period of two years from the date of the dissolution of the company.

(5) An application for the purpose of bringing proceedings against the company—

(a)for damages in respect of personal injuries (including any sum claimed by virtue of section 14(2)(c) of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937 (funeral expenses)), or

(b)for damages under the Fatal Accidents (Northern Ireland) Order 1977,

may be made at any time; but no order shall be made on such an application if it appears to the court that the proceedings would fail by virtue of any statutory provision as to the time within which proceedings must be brought.

(6) Nothing in paragraph (5) affects the power of the court on making an order under this Article to direct that the period between the dissolution of the company and the making of the order shall not count for the purposes of any such statutory provision.

(7) In paragraph (5)(a) “personal injuries” includes any disease and any impairment of a person’s physical or mental condition..

(4) An application may be made under Article 602(5) of the Companies Order as inserted by paragraph (3) (proceedings for damages for personal injury, &c.) in relation to a company dissolved before the coming into operation of this Article notwithstanding that the time within which the dissolution might formerly have been declared void under that Article had expired before this Article came into operation.

But no such application shall be made in relation to a company dissolved more than twenty years before the coming into operation of this Article.

(5) Except as provided by paragraph (4), the amendments made by this Article do not apply in relation to a company which was dissolved more than two years before the coming into operation of this Article.

Abolition of doctrine of deemed notice

76.  (1)  In Part XXIV of the Companies Order (the registrar of companies, his functions and office), after Article 660 insert—

Exclusion of deemed notice

660A.  (1)  A person shall not be taken to have notice of any matter merely because of its being disclosed in any document kept by the registrar (and thus available for inspection) or made available by the company for inspection.

(2) This does not affect the question whether a person is affected by notice of any matter by reason of a failure to make such inquiries as ought reasonably to be made.

(3) In this Article “document” includes any material which contains information.

(4) Nothing in this Article affects the operation of Article 417F (under which a person taking a charge over a company’s property is deemed to have notice of matters disclosed on the companies charges register)..

(2) In Schedule 21 to the Companies Order (unregistered companies), in the entry for Part XXIV at the appropriate place insert—

Article 660AAbolition of doctrine of deemed notice.Subject to Article 667(3)..

Rights of inspection and related matters

77.  (1)  In Part XXV of the Companies Order (miscellaneous and supplementary provisions), after Article 672 insert—

Obligations of company as to inspection of registers, &c.

672A.  (1)  The Department may make provision by regulations as to the obligations of a company which is required by any provision of this Order—

(a)to make available for inspection any register, index or document, or

(b)to provide copies of any such register, index or document, or part of it;

and a company which fails to comply with the regulations shall be deemed to have refused inspection or, as the case may be, to have failed to provide a copy.

(2) The regulations may make provision as to the time, duration and manner of inspection, including the circumstances in which and extent to which the copying of information is permitted in the course of inspection.

(3) The regulations may define what may be required of the company as regards the nature, extent and manner of extracting or presenting any information for the purposes of inspection or the provision of copies.

(4) Where there is power to charge a fee, the regulations may make provision as to the amount of the fee and the basis of its calculation.

(5) Nothing in any provision of this Order or in the regulations shall be construed as preventing a company from affording more extensive facilities than are required by the regulations or, where a fee may be charged, from charging a lesser fee than that prescribed or no fee at all..

(2) In Article 179(5) of the Companies Order (contract for purchase by company of its own shares), omit the words from “, during business hours” to “for inspection)”.

(3) In Article 185(5) of the Companies Order (statutory declaration and auditors' report relating to payment out of capital), in sub-paragraph (b) omit the words from “during business hours” to “period”.

(4) In Article 200 of the Companies Order (register of debenture holders)—

(a)in paragraph (1), omit the words from “(but” to “for inspection)” and for the words from “a fee of 5 pence” to the end substitute “such fee as may be prescribed”;

(b)in paragraph (2) for the words from “10 pence” to the end substitute “such fee as may be prescribed”; and

(c)in paragraph (3), after “on payment” insert “of such fee as may be prescribed” and omit sub-paragraphs (a) and (b).

(5) In Article 227 of the Companies Order (register of interests in shares, &c.)—

(a)in paragraph (1), omit the words from “during” to “for inspection)”; and

(b)in paragraph (2) for the words from “10 pence” to “required to be copied” substitute “such fee as may be prescribed”.

(6) In Article 296 of the Companies Order (register of directors and secretaries), in paragraph (3), omit the words from “during” to “for inspection)” and for the words from “5 pence” to the end substitute “such fee as may be prescribed”.

(7) In Article 326 of the Companies Order (directors' service contracts), in paragraph (7) omit the words from “, during business hours” to “for inspection)”.

(8) In Article 364 of the Companies Order (register and index of members' names)—

(a)in paragraph (1), omit “during business hours” and for “the appropriate charge” substitute “such fee as may be prescribed”;

(b)omit paragraph (2);

(c)in paragraph (3) for “the appropriate charge” substitute “such fee as may be prescribed”; and

(d)omit paragraph (4).

(9) In Article 391 of the Companies Order (minutes of proceedings of general meetings)—

(a)in paragraph (1), omit “during business hours”;

(b)omit paragraph (2); and

(c)in paragraph (3), after “entitled” insert “on payment of such fee as may be prescribed” and omit the words from “at a charge” to the end.

(10) In Part IV of Schedule 13 to the Companies Order (register of directors' interests)—

(a)in paragraph 24, omit the words from “during” to “for inspection)” and for the words from “5 pence” to the end substitute “such fee as may be prescribed”; and

(b)in paragraph 25(1), for the words from “10 pence” to the end substitute “such fee as may be prescribed”.

(11) In Schedule 21 to the Companies Order (provisions applying to unregistered companies), in the entry relating to Part XXV at the appropriate place insert—

Article 672ARights of inspection and related matters.To apply only so far as this provision has effect in relation to provisions applying by virtue of the foregoing provisions of this Schedule..

Minor amendments

78.  The Companies Order has effect with the further amendments specified in Schedule 5.

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