Constituting the Meeting
A valid meeting requires a quorum.The quorum is specified by the constitution. The standard position for a private company requires two persons present in person or by proxy.A meeting generally requires at least two persons for a quorum. The typical position for a PLC is that three persons present in person suffice for a quorum.
If there is no quorum, the meeting cannot be validly held. Standard articles provide that if there is no quorum after 30 minutes, it is deemed adjourned. In the case of a requisitioned meeting, it is dissolved.The court can deem a meeting held without a quorum to be valid.
The default position allows the directors to nominate a chairman of the meeting, who is to preside. If the chairman is not present, directors present can usually choose an alternative chairman. If there is no one present to elect a chairman, the shareholders may elect the chairman.
The chairman conducts the meeting and decides issues of procedural order and regularity that arise. He must conduct meetings fairly and ensure that shareholders and others who are entitled are given the opportunity to be heard. The Chairman may adjourn the meeting. He may require the consent of the shareholders to do so under the constitution.
Resolutions are proposed by the Chairman or a shareholder. Amendments are allowed to resolutions which are not special resolutions. An amended ordinary resolution must come within the scope of the original resolution Special resolutions may be amended if they do not change the substance of the original proposal.
The Chairman puts the resolution to the shareholders. Subject to what the constitution provides, votes are first taken by a show of hands of the shareholders and others entitled to vote. The Chairman counts the hands and should disregard non-members. Persons holding proxies are counted once.
The shareholders who are entitled to vote are those appearing on the register of members at the date of the notice of the meeting. Therefore, a person who has purchased shares may not yet be entered in the register and accordingly may not be entitled to vote.
The chairman of the meeting has an obligation to ascertain the sense of the meeting. The company must keep minutes of its meetings. They should be signed by the chairman of the meeting or that of the next succeeding meeting. They are deemed presumptive evidence of what took place in the event of a dispute.
The minutes must be kept in the registered office and be open for inspection by members without charge. It is an offence for a company to refuse production and inspection.
Default Procedure I
The following provisions apply except to the extent that the company’s constitution otherwise provides.
The chairperson, if any, of the board of directors, shall preside as chairperson of every general meeting of the company. The chairman must ascertain the meeting’s position on matters before it. He must act fairly and ensure that participants are given a reasonable opportunity to be heard.
If there is no such chairperson, if he is not present within 15 minutes after the time appointed for the meeting or if he is unwilling to act, the directors present shall elect one of their members to be the chairperson of the meeting. The chairperson may with the consent of any meeting at which a quorum is present, or if directed by the meeting, adjourn the meeting from time to time and from place to place.
Default Procedure II
No business may be transacted at an adjourned meeting other than the business left unfinished from the earlier meeting. Where a meeting is adjourned for more than 30 days, notice of the adjourned meeting must be given as in the case of the original meeting. Subject to this, it is not necessary to give any notice of the adjournment or business to be transacted at the adjourned meeting.
The general principle of law is that two persons must be present to constitute a meeting of the shareholders. This may consist of persons present as shareholders or by proxy of another shareholder under standard articles/ default position. The quorum is two for meetings of members of a private limited company. The constitution may allow persons to be counted who are present “remotely”, through electronic communication.
In a single-member company, the single-member constitutes the meeting. Similarly, in that case of class shareholdings, a single class holder will constitute the meeting.
The Companies Act provides that a poll can be demanded. This right to a poll cannot be displaced by the constitution.
The Chairman should call a poll if he has any doubt about the position. Each member has one vote per share on a poll. The poll is taken and counted by persons appointed by the directors. The chairman, three shareholders and those holding 10% or more of the share capital may require a poll.
Unless a poll is demanded at any general meeting, a resolution put to the vote at the meeting shall be decided by a show of hands. The declaration by the chairperson that a resolution has been carried or carried unanimously, or by a particular majority, or lost, and an entry in the book containing the minutes of the proceedings of the meeting, shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded for or against. Where there is an equality of votes, whether on a show of hands or on a poll, the chairperson of the meeting shall have a second or casting vote.
Each of the following applies under the 2014 Act, save to the extent that the company constitution otherwise provides.
Subject to the rights or restrictions attaching to any class of shares, where a matter is decided by a show of hands, every member present in person and every proxy shall have one vote. No individual member shall have more than one vote. On a poll, every member, whether present in person or by proxy, shall have one vote for each share of which he is the holder or for each €15 of stock held by him, as the case may be.
Where there are joint holders of a share, the vote of the “senior” who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holder or holders. “Seniority”, in this context is determined by the order in which the names of the joint holder stand in the register of members.
Persons of unsound mind, persons who have made an enduring power of attorney and persons who have been adjudicated of unsound mind may vote, whether on a show of hands or on a poll, by his or her committee, donee of an enduring power of attorney, receiver, guardian or by other person, appointed by the court.
No member shall be entitled to vote at a meeting unless all calls or other sums payable by him in respect of shares have been paid.
No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected is given or tendered. Every vote not disallowed shall be valid for all purposes. Any such objection made in due time shall be referred to the chairman of the meeting, whose decision shall be final and conclusive.
Demand for Poll I
On a poll of the shareholders, each shareholder is entitled to one vote for each share that he holds. He need not vote all of his shares in the same way. The poll may be taken immediately or at a later date. Scrutineers are appointed by the chairman to examine, count the votes and report.
At a meeting, a poll may be demanded in relation to the matter whether before or on the declaration of the result of a show of hands in relation to that matter. The demand may be made by
- the chairperson of the meeting;
- at least three members present in person or by proxy;
- any member or members representing not less than 10% of the total voting rights of the members having the right to vote at the meeting;
- members or a member holding shares conferring the right to vote, being shares on which the aggregate sum has been paid up, equal to not less than 10% of the total sum paid up on all the shares conferring that right.
Demand for Poll II
The instrument appointing a proxy to vote at a meeting shall be deemed to confer authority to demand or join in demanding a poll.
A demand for a poll may be withdrawn. If a poll is demanded, it should be taken in such manner as the chairperson directs. The result of the poll is deemed to be the resolution, in relation to the matter concerned.
A poll demanded in relation to the election of a chairperson or on a question of adjournment shall be taken forthwith. A poll on any other question shall be taken at such time as the chairperson directs. Any business other than that on which a poll is demanded may be proceeded with, pending the taking of the poll.
On a poll taken at a meeting of a company or a class of members of a company, by members whether present in person or by proxy, members entitled to more than one vote need not, use all the votes or cast in the same way.
Any person entitled to attend and vote at a shareholders’ meeting may appoint a proxy. Subject to the terms of the appointment, the proxy has the same rights as the appointing shareholder to attend, speak, and vote on a poll or in a vote. The notice of the meeting must inform shareholders of their right to appoint a proxy. It is an offence for the company and every officer in default not to do so.
The right to appoint a proxy is protected by the Companies Acts. Generally, one proxy only may be appointed, unless the constitution otherwise provides.
Generally, a proxy is free to vote as he wishes. A proxy may direct the proxy holder to vote in a particular way or may give him discretion. Proxy holders must act in accordance with the instructions of the member who has appointed him. A proxy can be revoked unless it is given for consideration and expressed by its terms to be irrevocable.
Unless the company’s constitution otherwise provides, a member is not entitled to appoint more than one proxy to attend on the same occasion.
The chairperson of a meeting may require a person claiming to be an authorised person to produce such evidence of the person’s authority as such, as the chairperson may reasonably specify and, if such evidence is not produced, the chairperson may exclude such person from the meeting.
The format of the instrument of proxy is specified by the legislation. It is to be in writing under the hand of the appointer or of his attorney, duly authorised in writing. In the case of a company or other corporate body, the proxy shall be appointed under seal or under the hand of an officer or attorney duly authorised in writing.
The instrument of proxy and any power of attorney under which it is signed or a notarised/ certified copy of them, shall be deposited at the registered office of the company concerned or at another place within the State as specified for that purpose in the notice convening the meeting, not later than 48 hours before the holding of the meeting or adjourned meeting, or such lesser period as the company’s constitution may provide. The depositing of a proxy may be undertaken by electronic means. If the proxy is not lodged in accordance with these requirements, it is invalid.
A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the appointer, the revocation of the proxy or of the authority under which the proxy was executed or the transfer of the share in respect of which the proxy is given. This does not apply if notice in writing of such death, insanity, revocation or transfer is received by the company concerned at its registered office before the commencement of the meeting or the adjourned meeting at which the proxy is used.
If for the purpose of any meeting of a company, invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the company’s expense to some only of the members entitled to be sent a notice of the meeting and to vote at it by proxy, any officer of the company who knowingly and intentionally authorises or permits their issue in that manner is guilty of a category 3 offence.
An officer shall not be guilty by reason only of the issue to a member, at his or her request in writing, of a form of appointment naming the proxy or of a list of persons willing to act as proxy if the form or list is available on request in writing to every member entitled to vote at the meeting by proxy.
Corporate Proxies / Appointees
A body corporate may, if it is a member or creditor of a company, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company.
Similarly, it may appoint a person to act as its representative at any meeting of any creditors of the company held under the Companies Act or the provisions contained in any debenture or trust deed, in the case of a creditor.
The authorised person is entitled to exercise the same powers on behalf of the body corporate which he or she represents as that body corporate could exercise if it were an individual member of the company, creditor or holder of debentures of the company.
References and Sources
Companies Act 2014 S.185 – S.199(Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch.14 Courtney
Keane on Company Law 5th Ed. (2016) Ch.25 Hutchinson
Other Irish Sources
Tables of Origins & Destinations Companies Act 2014 (2016) Bloomsbury
Introduction to Irish Company Law 4th Ed. (2015) Callanan
Bloomsbury’s Guide to the Companies Act 2015 Courtney & Ors
Company Law in Ireland 2nd Ed. (2015) Thuillier
Pre-2014 Legislation Editions
Modern Irish Company Law 2nd Ed. (2001) Ellis
Cases & Materials Company Law 2nd Ed. (1998) Forde
Company Law 4th Ed. (2008) Forde & Kennedy
Corporations & Partnerships in Ireland (2010) Lynch-Fannon & Cuddihy
Companies Acts 1963-2012 (2012) MacCann & Courtney
Constitutional Rights of Companies (2007) O’Neill
Court Applications Under the Companies Act (2013) Samad
Company Law – Nutshell 3rd Ed. (2013) McConville
Questions & Answers on Company Law (2008) McGrath, N & Murphy
Make That Grade Irish Company Law 5th Ed. (2015) Murphy
Company Law BELR Series (2015) O’Mahony
Companies Act 2006 (UK) (Legilsation.gov.uk)
Statute books Blackstone’s statutes on company law (OUP)
Gower Principles of Modern Company Law 10th Ed. (2016) P. and S. Worthington
Company Law in Context 2nd Ed. (2012) D Kershaw
Company Law (9th Ed.) OUP (2016) J Lowry and A Dignam
Cases and Materials in Company law 11th Ed (2016) Sealy and Worthington
UK Practitioners Services
Tolley’s Company Law Handbook
Palmer’s Company Law