| The
Company Secretary |
| 1.
General |
| Every
company must have a secretary. The secretary cannot be: |
| (i) |
the
sole director of the company; or |
| (ii) |
a
corporation the sole director of which is the sole director
of the company. |
| A
company may be secretary of a company. |
| Notice
of appointment of a secretary must be given to the Registrar
of Companies on form 288a within 14 days. |
| Notice
of resignation of a secretary must be given to the Registrar
of Companies on form 288b within 14 days. |
| Notice
of any change in the particulars of a secretary must be
given to the Registrar of Companies on form 288c within
14 days of the change. |
| If
the office of secretary is vacant or there is no secretary
capable of acting, anything required to be done by or
to the secretary may be done by or to any assistant or
deputy secretary, or failing that by or to any officer
of the company authorised by the directors (s283(3) CA
85). |
| A
provision authorising a thing to be done by or to a director
and the secretary is not satisfied if it is done to or
by the same person acting as director and as, or in place
of the secretary (s284 CA 85). |
|
| |
| 2.
General duties |
| (a) |
Registers |
|
The
secretary should maintain the statutory records of the
company. As well as keeping a minute book of directors'
meetings and of general meetings he should also maintain
the following registers: |
|
(i) |
Register
of members; |
|
(ii) |
Register
of directors and secretary; |
|
(iii) |
Register
of directors' interests; |
|
(iv) |
Register
of applications and allotments; |
|
(v)
|
Register
of transfers; |
|
(vi) |
Register
of debenture holders; |
|
(vii) |
Register
of mortgages and charges; |
|
(viii) |
Register
of Sealings |
|
(ix) |
Register
of material interest in shares (public limited company
only). |
| (b) |
Company
papers and seal |
|
The
company secretary should keep the company seal, share
certificates and any documentation relating to the statutory
records of the company: for example, letters of application,
the Memorandum and Articles of Association and the Certificate
of Incorporation. |
| (c) |
Meetings |
|
The
company secretary should also arrange and provide the
necessary notice for board and general meetings of the
company. The company secretary will usually be involved
in the practical arrangements for the meeting: for example
booking the necessary accommodation and arranging the
necessary personnel for the smooth conduct of the meeting
and, if necessary, arranging for poll cards. |
| (d) |
Returns |
|
The
company secretary is responsible for filing the relevant
documents with the Registrar of Companies such as Annual
Returns, resolutions etc. |
| (e) |
Minutes |
|
The
company secretary is usually responsible for taking minutes
of Board and general meetings. |
|
| |
| 3.
Qualifications for Secretaries of a Public Company |
| The
directors of a public company must take reasonable steps
to ensure that the secretary (or each joint secretary)
is a person who appears to them to have the requisite
knowledge and experience to discharge his function as
secretary, and who:- |
| (a) |
on
22 December 1980 was secretary, or assistant or deputy
secretary, of the company; or |
| (b) |
or
at least three of the five years preceding his appointment
as secretary held a similar appointment at another non-
private company; or |
| (c) |
is
a member of: |
|
(i) |
the
Institute of Chartered Accountants in England and Wales; |
|
(ii) |
the
Institute of Chartered Accountants of Scotland; |
|
(iii) |
the
Institute of Chartered Accountants in Ireland; |
|
(iv) |
the
Chartered Association of Certified Accountants; |
|
(v) |
the
Institute of Chartered Secretaries and Administrators; |
|
(vi) |
the
Institute of Cost and Management Accountants; |
|
(vii) |
the
Chartered Institute of Public Finance and Accountancy; |
| (d) |
is
a barrister, advocate or solicitor called or admitted
in any part of the UK or; |
| (e) |
is
a person who appears to the directors to be capable of
discharging the functions of secretary because of some
other position held or membership of some other body. |
| Note:
the company secretary of a private company does not require
any qualifications. |
|
| |
| 4.
Appointment and Removal |
| Particulars
of the first secretary (or joint secretaries) of a company
must be given in the prescribed form (Form 10) which accompanies
the Memorandum of Association on registration. On registration,
the person or persons so named are deemed to be appointed. |
| Appointment
of subsequent secretaries is regulated by the Articles.
Where Table A is adopted, a secretary is appointed by
the directors for such term, at such remuneration, and
upon such conditions as they think fit; and any secretary
so appointed may be removed by them. |
|
| |
| 5.
Powers and Authority |
| (a) |
Officer
of the company |
|
The
secretary is an officer of the company (s744 CA 85) and
may or may not also be an employee of the company. |
| (b) |
Authority |
|
A
company secretary employed by the company and involved
in the management of that company may have the following
authority: |
|
(i) |
Actual
authority - that is to say authority delegated by the
directors to enter into contract on the company's behalf; |
|
(ii) |
Implied
authority – authority to enter into contracts as
a result of a course of dealings; |
|
(iii) |
Ostensible
authority – authority to act in relation to matters
that would normally fall within the job of a company secretary. |
|
| |
| 6.
Responsibility and Personal Liability |
| (a) |
Companies
Act liability |
|
As
an officer of the company a company secretary will be
liable for default fines and other penalties imposed by
the Companies Act. |
| (b) |
Fiduciary
duty |
|
As
an officer of the company the secretary owes a fiduciary
duty to the company in a similar way to that owed by directors.
A company secretary will also usually be accountable to
the company for any secret profit or gain made as a result
of his position with the company. |
| (c)
|
Contractual
liability |
|
Where
a company secretary enters into a contract on behalf of
the company he should make it clear that he does so as
the company's agent; personal liability will therefore
be avoided |
|
| |
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