CHAPTER 4: OTHER POWERS OF THE SECRETARY OF STATE
Section 75: Provision of misleading information etc
176. This section replaces section 28(3) of the 1985 Act and, insofar as they support that subsection, section 28(4) and (5). It provides power for the Secretary of State to direct a company to change its name within a specified period in two circumstances. First, if misleading information was given to enable the adoption of the name. Second, if an undertaking or assurance given to enable the adoption of the name has not been fulfilled. The direction can only be made up to five years after the adoption of the name. It is an offence not to comply with the direction.
Section 76: Misleading indication of activities
177. This section replaces section 32 of the 1985 Act. It provides power for the Secretary of State to direct a company to change its name, regardless of how long the company has had the name, in the specified circumstances. The circumstances are that, in his opinion, not only does the name give a misleading indication of the nature of the company’s activities but also that the public are likely to suffer harm as a result. The company may appeal to the court, who may either confirm the direction or set it aside. It is an offence not to comply with the direction.
178. The section also sets time limits for compliance with the direction (6 weeks) and the application to the court (3 weeks). If the court confirms the direction, it specifies the deadline for compliance.
CHAPTER 5: CHANGE OF NAME
Section 77: Change of name
179. This section replaces section 28(1) of the 1985 Act. Under the existing provision, companies can only change their names:
• by special resolution; or
• following a direction by the Secretary of State in the restricted circumstances provided by section 31 of the 1985 Act, which apply only to companies exempt from their name concluding in “limited.”
180. This section also provides for the following means:
• whatever means are provided in the company’s articles (this means that the company will be able to determine the procedures for changing its own name);
• by an order of the company names adjudicator if an objection under section 73 is upheld, or by a court following an appeal against the adjudicator’s decision under section 74; and
• under section 1033 on the company’s restoration to the register.
Section 78: Change of name by special resolution
181. This section is a new provision. It requires the company to notify the registrar of a change of name when it has been agreed by special resolution. This requirement is in addition to the obligation under Chapter 3 of Part 3 to forward a copy of the special resolution to the registrar. Subsections (2) and (3) address the particular situation where a company has passed a special resolution to change its name but the change is not to take place until some other event has occurred (e.g. a merger). The notice of change of name must say that the change is conditional and whether the event has occurred. If the event has not yet occurred, the registrar will not act on the notice to change the name until she has received a second notice stating that the specified event has occurred. The registrar may rely on that statement without further evidence.
Section 79: Change of name by means provided for in company’s articles
182. This section is a new provision, supplementing the new provision (section 77(1)(b)) whereby a company may change its name by any means provided for in its articles. Subsection (1) requires the company to provide the registrar with both a notice of the name change and a statement that the change has been made in accordance with the company’s articles. Subsection (2) ensures the registrar may rely on that statement without further evidence.
Section 80: Change of name: registration and issue of new certificate of incorporation
183. This section, which partly replaces sections 28(6) and 32(5) of the 1985 Act, provides for the procedures that the registrar must perform before a company’s proposed new name is effective. Subsection (2) provides for the checks both that the name meets all the requirements for a company’s name in this Part of the Act and that the necessary documents have been provided. Subsection (3) provides for the company to be issued with a certificate of incorporation with the new name.
Section 81: Change of name: effect
184. This section, which replaces sections 28(6) and 32(5) in part and, in total, section 28(7) of the 1985 Act, provides that the new name is effective as soon as the altered certificate of incorporation is issued. It also provides that the change of name does not affect the company’s rights or obligations or legal proceedings by or against it in its previous name.
CHAPTER 6: TRADING DISCLOSURES
Section 82: Requirement to disclose company name etc
185. This section replaces sections 348(1), 349(1), and 351(1) and (2) of the 1985 Act and, insofar as it applies to companies, section 4(1) of the Business Names Act 1985. It provides power for the Secretary of State to make regulations requiring every company:
• to display a sign with its name and specified other information at specified locations;
• to include its name and specified other information in specified documents and communications;
• to provide its name and specified other information to those who request it in the course of business (this is a new provision insofar as it applies to companies doing business under their registered names).
Section 83: Civil consequences of failure to make required disclosure
186. This section replaces section 5 of the Business Names Act 1985, so far as it applies to companies. As recommended by the CLR (Final Report, paragraph 11.57), it follows the precedent of the Business Names Act as regards the civil consequences of failure to comply with the information requirements made in regulations under section 82: the provision for personal civil liability of officers in default in section 349(4) of the Companies Act 1985 is not included.
Section 84: Criminal consequences of failure to make required disclosures
187. This section replaces sections 348(2), 349(2) and (3) and 351(5) of the 1985 Act and, insofar as it applies to companies, part of section 7 of the Business Names Act 1985. It makes it an offence not to comply with the requirements, to be specified in regulations under section 82, for every company to disclose its name and specified other information.
Section 85: Minor variations in form of name to be left out of account
188. This section is a new provision. It means that the company’s name as used to comply with the disclosure requirements need not be exactly the same as the registered name. The permitted differences are the case of the letters, the use of punctuation, accents, etc and formatting. However the differences must not result in there being a risk of confusion.
PART 6: A COMPANY’S REGISTERED OFFICE
Section 86: A company’s registered office
189. This section restates section 287(1) of the 1985 Act. It requires every company to have a registered office and provides for that office to be an address to which communications and notices may be sent. Section 1139 provides that the service of a document on a company is effective if it is sent to its registered office.
Section 87: Change of address of registered office
190. This section restates section 287(3) to (6) of the provisions of the 1985 Act. It provides the means by which a company may change the address of its registered office.
Section 88: Welsh companies
191. This section provides a definition of a Welsh company. A company can be set up as a Welsh company by delivering to the registrar a statement on formation that its registered office is to be situated in Wales (see section 9(2)(b)). Subsection (2) restates section 2(2) of the 1985 Act whereby a company may become a Welsh company by passing a special resolution (so that the register states that its registered office is to be situated “in Wales”). As recommended by the CLR, subsection (3) provides a mechanism whereby a company can cease to be a Welsh company (i.e. so that the register states that its registered office is to be situated in “England and Wales”). This is new. At present, while a company may choose to restrict the address of its registered office to Wales on formation or subsequently by special resolution, it is not possible under the 1985 Act for a Welsh company to drop the restriction so that its registered office address can be changed to anywhere in England and Wales.
192. Welsh companies may deliver documents to the registrar in Welsh (see section 1104). Welsh companies may also end their company name with Welsh versions of the statutory indicators of legal status. For example, “cyfyngedig” in place of “limited” or “c.c.c.“ in place of “p.l.c.” (see sections 58 and 59). When a company ceases to be a Welsh company using the procedure under this section, it may no longer take advantage of these provisions.
193. Where a company passes a special resolution under subsection (2) or (3) (and so becomes or ceases to be Welsh company) subsection (4) provides that the registrar will amend the register and issue the company with a new certificate of incorporation.
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