LPC NOTES
[BUSINESS LAW AND PRACTICE]
(2019-2020)
, BUSINESS LAW AND PRACTICE
Forming a company
The documents which must be prepared and delivered to the Registrar for
a private company limited by shares are:
(a) an application for registration as a company;
(b) a memorandum of association for the company; and
(c) possibly articles of association for the company.
The documents may be prepared and delivered to Companies House
either in electronic form, or in paper form in person or by post.
issue a certificate of incorporation for the company.
The company comes into existence on the date stated on its certificate of
incorporation.
Company name
Once you have obtained the preferred names from the client, the first step
is to search the index of company names at Companies House.
Search is necessary, under s 66(1) of the CA 2006, a company must not be
registered with the same name as one already appearing in the index.
Company and Business Names (Miscellaneous Provisions) Regulations
2009 (SI 2009/1085), - ‘same’ name names which would be essentially the
same if simple elements were disregarded.
The Regulations set out which elements are to be disregarded.
Status of the company;
certain words;
punctuation marks;
symbols; and
plurals.
S 59 CA 2006 - private limited company must use either ‘limited’ or ‘ltd’.
S 53 CA 2006 - A company may not use a name which, in the opinion of
the Secretary of State for BIS, would amount to a criminal offence or is
offensive.
Company and Business Names (Miscellaneous Provisions) Regulations
2009 (SI 2009/1085), certain characters may/not be used in a company’s
name.
The name of the company also cannot exceed 160 characters including
spaces.
Certain ‘sensitive’ words need prior approval - Some approval from
Secretary of State for BIS - others both the Secretary of State and a
regulatory body.
The approval process is carried out by Companies House on behalf of the
Secretary of State.
Names which suggest connection between company and HM Government,
other public authorities listed in the Company, Limited Liability Partnership
and Business Names (Public Authorities) Regulations 2009 (SI 2009/2982)
require the approval of the Secretary of State for BIS under s 54 of the CA
2006. – s54 need to write to the body or Secretary of State , asking
whether they object to the use of the name and, if so, why.
, After the company has been formed, the use of the name may still be
challenged by third parties.
The Secretary of State may direct a company to change its name after
the company has been registered if it is the same as or too like a name
already on the index of company names under s 67 of the CA 2006.
if misleading information was given for use of a particular name (s 75),
if the name gives a misleading impression of the nature of the
company’s activities likely to cause harm to the public (s 76).
s 69 of the CA 2006, any person may make an application to the Company
Names Tribunal (CNT) to change a company’s existing name if:
that company’s name is the same as one in which the applicant has
goodwill (defined as reputation of any description), or is
sufficiently similar that it would be likely to mislead by suggesting a
connection.
Where good faith can be shown in adopting the company name already
registered, or where the applicant’s interests are not adversely affected by
the use of the name, the application will fail.
A company may be liable for the tort of passing off if it uses a name which
suggests that the company is carrying on someone else’s business. If a
claimant is successful, a court can order an injunction and damages or an
account of profits.
If a company name includes the name protected by a trade mark then the
holder of a trade mark may bring a claim against the company for
infringement of that trade mark.
Business names
A company, once it has been registered, may choose to operate with a
trading or business name which is different from its registered name.
There are similar restrictions on the use of business names as apply to
the company name proper, although there is no need to register a
business name.
Registered office
A company must have a registered office in accordance with s 86 of the
CA 2006.
CA 2006, s 9(5)(a) -address must be provided on the application and
include the country in (CA 2006, s 9(2)(b)).
The country must correspond to the jurisdiction in which the company is
being registered.
Articles of association
Every company must have a set of articles (CA 2006, s 18).
S 9(5)(b) copy of the articles included with application for registration.
There are three options for the new company’s articles of association.
They might be:
(a) unamended model articles of association (precedent); or
(b) model articles of association with amendments; or
, (c) bespoke articles of association.
There are three different sets of model articles Companies (Model Articles)
Regulations 2008 (SI 2008/3229):
(a) for a private company limited by shares;
(b) for a private company limited by guarantee; and
(c) for a public company.
When opt for unamended model articles - no need to attach a copy to the
application for registration - ss 18(2) and 20(1)(a) of the CA 2006 allow for
this.
It is possible to include provisions in the company’s articles which are
entrenched (CA 2006, s 22). If included - more difficult to change in the
future - must be notified to the Registrar on the application (CA 2006, s
23).
Memorandum of association
s 9(1)CA 2006 - submit together application for registration articles.
Must state subscribers who wish to form a company and that they agree to
become be members of the company taking at least one share each (CA
2006, s 8).
It must be in the form set out in the Companies (Registration) Regulations
2008 (SI 2008/3014).
Simple document requiring name of each subscriber, his authentication
(eg a signature) and the date of authentication.
Post incorporation steps
First board meeting
Chairman
A chairman of the board of directors elected
Incorporation
Report made on the incorporation of the company – note on
identities of the first director (s) and company secretary.
Once the company is in existence, it is common for the directors to
decide that the expense of incorporating the company should
properly come out of company funds.
Bank account
Decide to open a bank account for the company - not legally
necessary.
Directors sign a mandate form, giving specimen signatures and
specifying who is allowed to sign cheques on the company’s behalf,
and whether there is any limit on the amount for which cheques
may be written.
Company seal
One of the ways in which the company may execute documents.
Have company’s name engraved on it in legible characters (CA
2006, s 45(2)), and
when applied it embosses the name of the company on the
document.
[BUSINESS LAW AND PRACTICE]
(2019-2020)
, BUSINESS LAW AND PRACTICE
Forming a company
The documents which must be prepared and delivered to the Registrar for
a private company limited by shares are:
(a) an application for registration as a company;
(b) a memorandum of association for the company; and
(c) possibly articles of association for the company.
The documents may be prepared and delivered to Companies House
either in electronic form, or in paper form in person or by post.
issue a certificate of incorporation for the company.
The company comes into existence on the date stated on its certificate of
incorporation.
Company name
Once you have obtained the preferred names from the client, the first step
is to search the index of company names at Companies House.
Search is necessary, under s 66(1) of the CA 2006, a company must not be
registered with the same name as one already appearing in the index.
Company and Business Names (Miscellaneous Provisions) Regulations
2009 (SI 2009/1085), - ‘same’ name names which would be essentially the
same if simple elements were disregarded.
The Regulations set out which elements are to be disregarded.
Status of the company;
certain words;
punctuation marks;
symbols; and
plurals.
S 59 CA 2006 - private limited company must use either ‘limited’ or ‘ltd’.
S 53 CA 2006 - A company may not use a name which, in the opinion of
the Secretary of State for BIS, would amount to a criminal offence or is
offensive.
Company and Business Names (Miscellaneous Provisions) Regulations
2009 (SI 2009/1085), certain characters may/not be used in a company’s
name.
The name of the company also cannot exceed 160 characters including
spaces.
Certain ‘sensitive’ words need prior approval - Some approval from
Secretary of State for BIS - others both the Secretary of State and a
regulatory body.
The approval process is carried out by Companies House on behalf of the
Secretary of State.
Names which suggest connection between company and HM Government,
other public authorities listed in the Company, Limited Liability Partnership
and Business Names (Public Authorities) Regulations 2009 (SI 2009/2982)
require the approval of the Secretary of State for BIS under s 54 of the CA
2006. – s54 need to write to the body or Secretary of State , asking
whether they object to the use of the name and, if so, why.
, After the company has been formed, the use of the name may still be
challenged by third parties.
The Secretary of State may direct a company to change its name after
the company has been registered if it is the same as or too like a name
already on the index of company names under s 67 of the CA 2006.
if misleading information was given for use of a particular name (s 75),
if the name gives a misleading impression of the nature of the
company’s activities likely to cause harm to the public (s 76).
s 69 of the CA 2006, any person may make an application to the Company
Names Tribunal (CNT) to change a company’s existing name if:
that company’s name is the same as one in which the applicant has
goodwill (defined as reputation of any description), or is
sufficiently similar that it would be likely to mislead by suggesting a
connection.
Where good faith can be shown in adopting the company name already
registered, or where the applicant’s interests are not adversely affected by
the use of the name, the application will fail.
A company may be liable for the tort of passing off if it uses a name which
suggests that the company is carrying on someone else’s business. If a
claimant is successful, a court can order an injunction and damages or an
account of profits.
If a company name includes the name protected by a trade mark then the
holder of a trade mark may bring a claim against the company for
infringement of that trade mark.
Business names
A company, once it has been registered, may choose to operate with a
trading or business name which is different from its registered name.
There are similar restrictions on the use of business names as apply to
the company name proper, although there is no need to register a
business name.
Registered office
A company must have a registered office in accordance with s 86 of the
CA 2006.
CA 2006, s 9(5)(a) -address must be provided on the application and
include the country in (CA 2006, s 9(2)(b)).
The country must correspond to the jurisdiction in which the company is
being registered.
Articles of association
Every company must have a set of articles (CA 2006, s 18).
S 9(5)(b) copy of the articles included with application for registration.
There are three options for the new company’s articles of association.
They might be:
(a) unamended model articles of association (precedent); or
(b) model articles of association with amendments; or
, (c) bespoke articles of association.
There are three different sets of model articles Companies (Model Articles)
Regulations 2008 (SI 2008/3229):
(a) for a private company limited by shares;
(b) for a private company limited by guarantee; and
(c) for a public company.
When opt for unamended model articles - no need to attach a copy to the
application for registration - ss 18(2) and 20(1)(a) of the CA 2006 allow for
this.
It is possible to include provisions in the company’s articles which are
entrenched (CA 2006, s 22). If included - more difficult to change in the
future - must be notified to the Registrar on the application (CA 2006, s
23).
Memorandum of association
s 9(1)CA 2006 - submit together application for registration articles.
Must state subscribers who wish to form a company and that they agree to
become be members of the company taking at least one share each (CA
2006, s 8).
It must be in the form set out in the Companies (Registration) Regulations
2008 (SI 2008/3014).
Simple document requiring name of each subscriber, his authentication
(eg a signature) and the date of authentication.
Post incorporation steps
First board meeting
Chairman
A chairman of the board of directors elected
Incorporation
Report made on the incorporation of the company – note on
identities of the first director (s) and company secretary.
Once the company is in existence, it is common for the directors to
decide that the expense of incorporating the company should
properly come out of company funds.
Bank account
Decide to open a bank account for the company - not legally
necessary.
Directors sign a mandate form, giving specimen signatures and
specifying who is allowed to sign cheques on the company’s behalf,
and whether there is any limit on the amount for which cheques
may be written.
Company seal
One of the ways in which the company may execute documents.
Have company’s name engraved on it in legible characters (CA
2006, s 45(2)), and
when applied it embosses the name of the company on the
document.
