The advent of the Companies Act 2006  has brought about a number of changes for companies. One such change is that private companies can choose whether to have a company secretary or not. This choice was available from 6th April 2008.

In this factsheet,  we outline the company secretarial matters which need to be dealt with by you company under the Companies Act 2006, whether you have officially appointed a company secretary or not.

Do All Companies Need a Company Secretary?
As noted above,  there is no longer a requirement for all companies to have a company secretary.

As of 6th April 2008, private companies (Ltd) were no longer required to appoint a company secretary although the option to appoint one remains.

All private companies, whether they appoint a company secretary or not, will still have to ensure they comply with a number of statutory requirements.

Even after 6th April 2008 public limited companies (Plc) must have a company secretary with specialist up to date knowledge of company law.

The Company Secretary and Companies House
Company legislation requires that a minimum amount of information about a company must be publicly available, including, for example, annual accounts, the registered office address and details of directors, the secretary (if there is one) and members.

A company secretary or in the case of a private company, the person responsible for company secretarial duties, will have regular dealings with Companies House, as this is where public records about the company are held.

Where There is No Company Secretary
where a private company chooses not to have a company secretary, any item that would normally be sent to the company secretary is treated as being sent to the company. Any other duties which would normally be the responsibility of the company secretary would be carried out either by a director or a person authorized by the director.

If You Choose to Have One, How Should the Company secretary be Appointed?
Any changes to the particulars of the company directors or secretary, for example, changes in their name or address, must me notified to Companies House using standard form - 288c. When a director or secretary resigns, form 288b must be completed and sent to Companies House. When a new director of secretary is appointed, form 288a should be used.

The Status and Liability of the Company Secretary
The company secretary is an officer of the company. This means that they may be criminally liable for defaults committed by the company, for example, failure to file in the time allowed, any change in the details of the company's directors and secretary and the company's annual return.

Company Secretary Duties

Private company without an appointed company secretary
The duties of the person responsible matters are not defined specifically within company law. However, these may be divided generally into three main areas::

• maintaining statutory registers
• completing and filling statutory forms
• meeting and resolutions.

Maintaining statutory registers

Completing and filing statutory forms

Here the company secretary duties would extend to ensuring that, for example:

• the annual accounts are filed on time at Companies House. For a private limited company, under normal circumstances, this must be within 9 months of the end of the accounting year
  
  
• the annual return (form 363s) is completed and filed. This is a snapshot of the general information about the company, which must be checked closely and amended if necessary, signed and dated and returned to Companies House within 28 days of the date shown on the form. If this is returned late or not returned at all, the company, its director(s) and secretary (if appointed) may be prosecuted
  
• all forms that the company is required t have filed at Companies House are completed. These amount to potentially over 200 forms! the most common might include:

- changes in directors, secretaries and their particulars (288)
- a change of accounting reference date (225)
- a change of registered office (287)
- allotments of shares (88(2))
- an amendment to the Memorandum and Articles of Association of the company.

Often, these forms have to be filed at Companies House within a specified deadline following the change.

Many of the more common forms that have to be, or may have to be, filed can be completed and submitted on line by first registering at www.companies-house.gov.uk. 

Meetings and resolutions
Company law sets out procedures for conducting certain aspects of company business through formal meetings, where resolutions will be passed.

A resolution is an agreement or a decision taken by the directors or members. When resolutions are passed, the company is bound by them.

Here the role of the company secretary would be to ensure that proper notice of meetings is given to those who are entitled to attend and to ensure that copies of resolutions are sent to Companies House within the relevant time frame.

Notice of company meetings
Members and auditors are entitled to notice of company meetings. For a private limited company a general meeting must be called by a notice of at least 14 days. Notice of the general meeting can be in writing, by email or by means of a website (if certain conditions are met). However a private company is no longer required to hold an Annual General Meeting (AGM), unless the articles of the company make express provisions for holding AGM's. If an existing company with an existing express provision for an AGM wishes to abolish this requirement it will need to change its articles by special resolution.

Resolutions
There are two types of resolution that may be passed, ordinary resolutions (passed by a simple majority the members) or special resolutions (passed by a 75% majority of the members). Private companies can take decisions by written resolutions. Such a resolution does not require a hard copy. It can be passed by e-mail. Decisions can also be taken at general meetings for private companies and for public companies at both gereral meetings and AGMs. It is worth nothing the Companies Act will continue to introduce a number of changes in these areas over the remainder of 2009. We would be pleased to discuss these in more detail with you.

Public company or private with an appointed company secretary
If your company has a secretary appointed, the company secretary will have the following duties laid down by the Companies Act 2006:

• the duty to keep a register of secretaries
• the duty to notify the registrar of any changes.

How We Can Help
If you would like to discuss any of the issues raised above please do contact us. We are able to provide comprehensive assistance with company secretarial matters such as:

• the maintenance and safekeeping of the company registers
• the processing and filing of minutes
• the preparation and filing of resolutions
• the completion and filing of statutory forms
• the filing of the annual accounts.

Even when the need to appoint a company secretary in a private company is abolished, there will be a number of statutory procedures that companies must continue to comply with.  We would be pleased to discuss these with you.

For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.