A number of new provisions of the Companies Act 2006 come into force on 6 April 2008. These include the following:

1. Abolition of requirement to have a company secretary for private companies
Private companies are no longer required to have a company secretary. Although this may benefit sole director companies, the functions of a company secretary will still need to be carried out and articles of association may need to be amended.

Note that if a company does not have a company secretary, anything which would otherwise be required to be done by or any notice which would otherwise be required to be given to the company secretary can only be done by or given to a director. It may therefore be preferable for many companies to retain their company secretaries or alternatively to use a secretarial service such as BWB Secretarial Ltd (see below).

If an existing company’s articles of association expressly require the company to have a company secretary, these must be amended to remove this requirement.

However, those companies which have Articles of Association incorporating the standard ‘Table A’ articles in relation to the office of company secretary will not need amending. This is because these standard articles deal with aspects of the company secretary’s office but do not expressly require his or her appointment.

For existing companies who wish to cease having a company secretary, the following actions must be carried out:

• Check the articles of association and amend if necessary.
• Obtain the resignation of or remove the company secretary.
• File form 288b with Companies House.
• Ensure the company secretary’s duties and other functions are reassigned to directors.

If a company does have a company secretary but the position is vacant or the company secretary is unable to act, only a director of the company authorised by his colleagues on the Board (as opposed to any person authorised by the Board) can act.

2. Execution of documents
From 6 April 2008 there will be a new way for companies to execute deeds. Instead of needing two authorised signatories, it will now be possible for a deed to be signed on behalf of the company by a single director of the company in the presence of a witness who attests the signature.

This will of course be of great benefit to small, single director companies but for companies with two or more directors this change creates a potential loss of control. Directors of such companies may want to consider tightening up their signing procedures with this in mind.

It is still possible to continue to execute deeds by two authorised signatories and also the (now rarely used) affixing of the company’s common seal. Documents other than deeds may be executed in any of these three ways.

It also remains possible for a company to appoint an individual as its attorney and that individual may then execute a deed as attorney for the company.

3. Filing accounts
The period for filing accounts after the end of the relevant accounting period will drop from 10 months to 9 months for private companies and from 7 months to 6 months for public companies.

If you have any queries about this or any other change introduced by the new Act which affects your company, please contact Bates Wells & Braithwaite and we will be happy to provide guidance.

Peter Bohm
Partner – Corporate/Commercial department
Direct dial: 020 7551 7829
Email: p.bohm@bwbllp.com

Vanessa Williams
Partner - Corporate/Commercial department
Direct dial: 020 7551 7787
Email: v.williams@bwbllp.com