The Secretary

Company Secretary

Every company, including a single member company, must have a secretary. The secretary may also be a director. This is typically the case with small-scale private companies.   A director can be both director and secretary. However, where company law requires a director and secretary to do things separately, it cannot be done by the same person in both capacities.

In contrast to the prohibition of corporate directors, the secretary may be a company. There are companies which specialise in providing company secretarial services.  Secretarial companies are often promoted by accounting or financial services firms and provide secretarial services on a professional basis.

Anything required to be done by the secretary, may while the office is vacant or for other reason, there is no secretary capable of acting, be done by any assistant or deputy secretary. If there is none such, it may be done by any officer of the company authorised generally or specifically in that regard by the directors.

The secretary’s functions include statutory and other functions of an administrative nature.The secretary usually undertakes all filings with the CRO, Revenue, and public authorities. He maintains the statutory books, undertakes share registrations and publishes notices. He commonly receives and manages correspondence.


Qualifications

The directors have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties. This applies to limited companies, designated activity companies, companies limited by guarantee and unlimited companies. Where a company has one director only, that person may not also be secretary

No qualifications are required in the case of the secretary of a private company. The secretary of a public company must have requisite experience and knowledge. Public companies must have a secretary, who is a member of a recognised body. This does not apply to existing secretaries who held office when the legislation which so required commenced.

Where legal acts are to be done, such as the witnessing of the corporate seal by a director and secretary, a single person acting as both, may not undertake both functions.  Accordingly, the sole director may not in practice be the secretary.


Appointment

The default position / standard articles provide that the secretary shall be appointed by the directors for such term, remuneration and upon such conditions, as they think fit. The first secretary is named in the statement filed on incorporation. The secretary may be removed from office by the directors.

The directors in their appointment of the secretary, have a duty to ensure that the person appointed has the skills necessary so as to enable him to maintain (or procure the maintenance of) the records (other than accounting records) required to be kept under this Act in relation to the company.

The register of directors and secretaries must set out details of the office holder’s name, former name, and place of residence. In the case of a corporate secretary, it must set out its name and registered office.

Changes in the particulars of the secretary must be notified to the CRO, in much the same way as in the case of directors. There is equivalent provision to that for directors, by which a former secretary may notify his resignation or termination of office to the CRO if the company fails to do so.


Nature of Office

A secretary is an office holder in the same way as a director. His / its functions and roles are determined by companies law and the requirements of the company, as reflected in the terms of appointment. He may have an employment or services contract with the company. He may have other responsibilities. A corporate secretary may have a services contract with the company.

The secretary’s functions are largely administrative.  The secretary usually undertakes and manages compliance with the Companies Acts’ requirements.

The secretary keeps the various registers required. This includes the register of members, shareholders, directors, directors’ interests, etc. The secretary is primarily responsible for making returns to the Companies Registration Office where required.

Default provisions / standard articles give the secretary duties in connection with convening directors’ meetings and in relation to the general meetings.

A secretary as such does not participate in the board of directors and management of the company. There is no right to participate unless specifically provided for. The person who holds the office of secretary and director may participate as such. Commonly, the secretary will attend board meetings, take and keep minutes.


Duties of Secretary

The Companies Acts provide that the duties of the secretary of a company are, in addition to his statutory and other legal duties, such duties as are delegated to the secretary, from time to time, by the board of directors of the company.A range of statutory duties is imposed on the company secretary. There is a range of duties which arise on specified occasions. Some arise in relatively unusual circumstances.

The secretary, together with the directors must ensure that the requirements of the Companies Act are complied with by the company. They must sign the balance sheet and the annual returns. They must certify that the copy of the balance sheet, profit and loss and auditor’s account laid before the general meeting is a true copy.

The consent in respect of a secretary or joint secretaries to act and the notification to the CRO, shall include a statement by the secretary or secretaries in the following terms:

“I/We acknowledge that, as a secretary, I/we have legal duties and obligations imposed by the Companies Act, other statutes and at common law.”


Duties to Company

The secretary’s duties are owed to the company itself. The secretary must act with due skill and care. He may be sued by the company for negligence or breach of duties. The provision for derivative actions may be available to shareholders for breach of duty, although the matter rarely arises in practice.

The secretary has a duty of loyalty and confidentiality. The general fiduciary duties owed are similar to those applicable to directors. The secretary must not make secret profits and must avoid conflicts of interest.

The secretary must give notice of his interests in shares and of those held by persons connected with him. This covers shares and debentures, options and rights, etc. The provisions are equivalent to those which apply to directors.

There is a range of circumstances in which a company secretary may be prosecuted for breach of company legislation as an officer who may be in default in respect of the relevant obligations.


Public Limited Companies

The directors of a PLC must ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory duty and other duties.  The person must comply with one of the following conditions.

  • he must be a person who for at least three of the five preceding years, has held the position of secretary of a company;
  • the person must be a member of a body recognised for that purpose by the Minister;
  • he must be a person who by virtue of his holding or having held any other position or is having been a member of another body, appears to the directors to be capable of discharging the duties of the office.

References and Sourcse

Primary References

 

Companies Act 2014 (Irish Statute Book)

Companies Act 2014: An Annotation (2015) Conroy

Law of Companies 4th Ed.  (2016)  Ch.13   Courtney

Keane on Company Law 5th Ed. (2016) Ch. 28 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

Shorter Guides

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

UK Sources

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