Old public companiesE+W+S

1 Meaning of “old public company”.E+W+S

(1)For the purposes of the M1Companies Act 1985 (“the principal Act”) and this Act, an “old public company” is a company limited by shares or by guarantee and having a share capital in respect of which the following conditions are satisfied—

(a)the company either existed on 22nd December 1980 or was incorporated after that date pursuant to an application made before that date.

(b)on that date or, if later, on the day of the company’s incorporation the company was not or (as the case may be) would not have been a private company within section 28 of the M2Companies Act 1948, and

(c)the company has not since that date or the day of the company’s incorporation (as the case may be) either been re-registered as a public company or become a private company.

(2)References in the principal Act (other than so much of it as is derived from Part I of the M3Companies Act 1980, and other than section 33 (penalty for trading under misleading name)) to a public company or a company other than a private company are to be read as including (unless the context otherwise requires) references to an old public company, and references in that Act to a private company are to be read accordingly.

2 Re-registration as public company.E+W+S

(1)An old public company may be re-registered as a public company if—

(a)the directors pass a resolution, complying with the following subsection, that it should be so re-registered, and

(b)an application for the purpose in the prescribed form and signed by a director or secretary of the company is delivered to the registrar of companies together with the documents mentioned in subsection (4) below, and

(c)at the time of the resolution, the conditions specified in section 3 below are satisfied.

(2)The resolution must alter the company’s memorandum so that it states that the company is to be a public company and make such other alterations in it as are necessary to bring it in substance and in form into conformity with the requirements of the principal Act with respect to the memorandum of a public company.

[F1(3)Chapter 3 of Part 3 of the Companies Act 2006 (resolutions affecting a company’s constitution) applies to a resolution of the directors under this section.]

(4)The documents referred to in subsection (1)(b) are—

(a)a printed copy of the memorandum as altered in pursuance of the resolution, and

(b)a statutory declaration in the prescribed form by a director or secretary of the company that the resolution has been passed and that the conditions specified in section 3 of this Act were satisfied at the time of the resolution.

(5)The registrar may accept a declaration under subsection (4)(b) as sufficient evidence that the resolution has been passed and the necessary conditions were satisfied.

(6)Section 47(1) and (3) to (5) of the principal Act apply on an application for re-registration under this section as they apply on an application under section 43 of that Act.

3 Conditions for re-registering under s. 2.E+W+S

(1)The following are the conditions referred to in section 2(1)(c) (being conditions also relevant under section 4).

(2)At the time concerned, the nominal value of the company’s allotted share capital must not be less than the authorised minimum F2....

[F3(2A)The authorised minimum is defined in section 763 of the Companies Act 2006 and the provisions of section 765 of that Act (authorised minimum: application of initial requirement) apply in relation to the requirement in subsection (2) above.]

(3)In the case of all the shares of the company, or of all those of its shares which are comprised in a portion of the share capital which satisfies the condition in subsection (2)—

(a)each share must be paid up at least as to one-quarter of the nominal value of that share and the whole of any premium on it;

(b)where any of the shares in question or any premium payable on them has been fully or partly paid up by an undertaking given by any person that he or another should do work or perform services for the company or another, the undertaking must have been performed or otherwise discharged; and

(c)where any of the shares in question has been allotted as fully or partly paid up as to its nominal value or any premium payable on it otherwise than in cash, and the consideration for the allotment consists of or includes an undertaking (other than one to which paragraph (b) applies) to the company, then either—

(i)that undertaking must have been either performed or otherwise discharged, or

(ii)there must be a contract between the company and some person pursuant to which the undertaking is to be performed within 5 years from the time of the resolution.

4 Old public company becoming private.E+W+S

(1)An old public company may pass a special resolution not to be re-registered under section 2 as a public company; and section 54 of the principal Act (litigated objection by shareholders) applies to the resolution as it would apply to a special resolution by a public comp any to be re-registered as private.

(2)If either—

(a)28 days from the passing of the resolution elapse without an application being made under section 54 of the principal Act (as applied), or

(b)such an application is made and proceedings are concluded on the application without the court making an order for the cancellation of the resolution,

the registrar of companies shall issue the company with a certificate stating that it is a private company; and the company then becomes a private company by virtue of the issue of the certificate.

(3)For the purposes of subsection (2)(b), proceedings on the application are concluded—

(a)except in a case within the following paragraph, when the period mentioned in section 54(7) of the principal Act (as applied) for delivering an office copy of the court’s order under that section to the registrar of companies has expired, or

(b)when the company has been notified that the application has been withdrawn.

(4)If an old public company delivers to the registrar of companies a statutory declaration in the prescribed form by a director or secretary of the company that the company does not at the time of the declaration satisfy the conditions specified in section 3 for the company to be re-registered as public, the registrar shall issue the company with a certificate stating that it is a private company; and the company then becomes a private company by virtue of the issue of the certificate.

(5)A certificate issued to a company under subsection (2) or (4) is conclusive evidence that the requirements of that subsection have been complied with and that the company is a private company.

5 Failure by old public company to obtain new classification.E+W+S

(1)If at any time a company which is an old public company has not delivered to the registrar of companies a declaration under section 4(4), the company and any officer of it who is in default is guilty of an offence unless at that time the company—

(a)has applied to be re-registered under section 2, and the application has not been refused or withdrawn, or

(b)has passed a special resolution not to be re-registered under that section, and the resolution has not been revoked, and has not been cancelled under section 54 of the principal Act as applied by section 4 above.

(2)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding one-fifth of the statutory maximum or, on conviction after continued contravention, to a daily default fine not exceeding one-fiftieth of the statutory maximum for every day on which the subsection is contravened.

6 Shares of old public company held by itself; charges on own shares.E+W+S

(1)The following has effect notwithstanding section 1(2).

(2)References to a public company in sections 146 to 149 of the principal Act (treatment of a company’s shares when acquired by itself) do not include an old public company; and references in those sections to a private company are to be read accordingly.

(3)In the case of a company which after 22nd March 1982 remained an old public company and did not before that date apply to be re-registered under section 8 of the Act of 1980 as a public company, any charge on its own shares which was in existence on or immediately before that date is a permitted charge for the purposes of Chapter V of Part V of the principal Act and accordingly not void under section 150 of that Act.

7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4E+W+S

8 Trading under misleading name.E+W+S

(1)An old public company is guilty of an offence if it carries on any trade, profession or business under a name which includes, as its last part, the words “public limited company” or “cwmni cyfyngedig cyhoeddus”.

(2)A company guilty of an offence under this section, and any officer of the company who is in default, is liable on summary conviction as for an offence under section 33 of the principal Act.

9 Payment for share capital.E+W+S

(1)Subject as follows, sections 99, 101 to 103, 106, 108 and 110 to 115 in Part IV of the principal Act apply to a company whose directors have passed and not revoked a resolution to be re-registered under section 2 of this Act, as those sections apply to a public company.

(2)Sections 99, 101 to 103, 108 and 112 of the principal Act do not apply to the allotment of shares by a company, other than a public company registered as such on its original incorporation, where the contract for the allotment was entered into—

(a)except in a case falling within the following paragraph, on or before 22nd June 1982;

(b)in the case of a company re-registered or registered as a public company in pursuance of—

(i)a resolution to be re-registered under section 43 of the principal Act,

(ii)a resolution to be re-registered under section 2 of this Act, or

(iii)a resolution by a joint stock company that the company be a public company,

being a resolution that was passed on or before 22nd June 1982, before the date on which the resolution was passed.

Miscellaneous savingsE+W+S

10 Pre-1901 companies limited by guarantee.E+W+S

Section 15 of the principal Act does not apply in the case of companies registered before 1st January 1901.

11 Company official seal.E+W+S

(1)A company which was incorporated before 12th February 1979 and which has such an official seal as is mentioned in section 40 of the principal Act may use the seal for sealing such securities and documents as are there mentioned, notwithstanding anything in any instrument constituting or regulating the company or in any instrument made before that date which relates to any securities issued by the company.

(2)Any provision of such an instrument which requires any such securities or documents to be signed shall not apply to the securities or documents if they are sealed with that seal.

[F5(3)The foregoing provisions of this section are without prejudice to the right of a company to subscribe such securities and documents in accordance with the Requirements of Writing (Scotland) Act 1995.]

12 Share premiums: retrospective relief.E+W+S

(1)The relief given by this section (being a replacement of section 39 of the M4Companies Act 1981) applies only where a company has issued shares in circumstances to which this section applies before 4th February 1981.

(2)Subject as follows, this section applies where the issuing company (that is, the company issuing shares as mentioned in section 130 of the principal Act) has issued at a premium shares which were allotted in pursuance of any arrangement providing for the allotment of shares in the issuing company on terms that the consideration for the shares allotted was to be provided by the issue or transfer to the issuing company of shares in another company or by the cancellation of any shares in that other company not held by the issuing company.

(3)The other company in question must either have been at the time of the arrangement a subsidiary of the issuing company or of any company which was then the issuing company’s holding company or have become such a subsidiary on the acquisition or cancellation of its shares in pursuance of the arrangement.

(4)Any part of the premiums on the shares so issued which was not transferred to the company’s share premium account in accordance with section 56 of the Act of 1948 shall be treated as if that section had never applied to those premiums (and may accordingly be disregarded in determining the sum to be included in the company’s share premium account).

(5)Section 133(2) and (3) of the principal Act apply for the interpretation of this section; and for the purposes of this section—

(a)“company” (except in references to the issuing company) includes any body corporate, and

(b)the definition of “arrangement” in section 131(7) of the principal Act applies.

(6)This section is deemed included in Chapter III of Part V of the principal Act for the purpose of the Secretary of State’s power under section 134 of that Act to make regulations in respect of relief from the requirements of section 130 of that Act.

13 Saving, in case of re-issued debentures, of rights of certain mortgagees.E+W+S

Whereas by section 104 of the M5Companies (Consolidation) Act 1908 it was provided that, upon the re-issue of redeemed debentures, the person entitled to the debentures should have the same rights and priorities as if the debentures had not previously been issued:

And whereas section 45 of the M6Companies Act 1928 amended section 104 of the Act of 1908 so as to provide (among other things) that the said person should have the same priorities as if the debentures had never been redeemed, but saved, in the case of debentures redeemed before, but re-issued after, 1st November 1929, the rights and priorities of persons under mortgages and charges created before that date:

Now, therefore, where any debentures which were redeemed before the date last mentioned have been re-issued after that date and before the commencement of the Act of 1948 (1st July 1948), or are or have been re-issued after that commencement, the reissue of the debentures does not prejudice, and is deemed never to have prejudiced, any right or priority which any person would have had under or by virtue of any such mortgage or charge as above referred to if section 104 of the Act of 1908, as originally enacted, had been enacted in the Act of 1948 instead of section 90 of that Act, and in the principal Act instead of section 194 of that Act.

F614 Removal of directors appointed for life pre-1945.E+W+S

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F715 Tax-free payments to directors.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 Statutory declaration of solvency in voluntary winding up.E+W+S

In relation to a winding up commenced before 22nd December 1981, section 577 of the principal Act applies in the form of section 283 of the Act of 1948, without the amendment of that section made by section 105 of the Act of 1981.

17 Court’s power to control proceedings.E+W+S

Nothing in section 603 of the principal Act affects the practice or powers of the court as existing immediately before 1st November 1929, with respect to the staying of proceedings against a company registered in England and Wales and in course of being wound up.

18 Effect of floating charge in winding up.E+W+S

In relation to a charge created on or before 31st December 1947, section 617(1) of the principal Act has effect with the substitution of “6 months” for “12 months”.

19 Saving from s. 649 of principal Act.E+W+S

Nothing in section 649 of the principal Act affects the practice or powers of the court as existing immediately before 1st November 1929, with respect to the costs of an application for leave to proceed with an action or proceeding against a company which is being wound up in England and Wales.

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8E+W+S

F921 Priority of old debts in winding up.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Saving as to certain old liquidations.E+W+S

(1)The provisions of the principal Act with respect to winding up (other than sections 635, 658 and 620 as applied for the purposes of section 620 and subsection (2) below) shall not apply to any company of which the M7winding up commenced before 1st November 1929; but every such company shall be wound up in the same manner and with the same incidents as if the Companies Act 1929, the Act of 1948 and the principal Act (apart from the sections above-mentioned) had not passed; and, for the purposes of the winding up, the Act or Acts under which the winding up commenced shall be deemed to remain in full force.

(2)A copy of every order staying or sisting the proceedings in a winding up commenced as above shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar of companies, who shall enter the order in his records relating to the company.

23 Restrictions on shares imposed pre-1982.E+W+S

Where before 3rd December 1981 shares in a company were directed by order of the Secretary of State to be subject to the restrictions imposed by section 174 of the Act of 1948, and the order remains in force at the commencement date, nothing in this Act prevents the continued application of the order with such effect as it had immediately before the repeal of section 174 took effect.

24 Saving for conversion of winding up under 1981 s. 107.E+W+S

(1)The repeal of section 107 of the 1981 Act (conversion of creditors’ winding up into members’ voluntary winding up, due to circumstances arising in the period April to August 1981) does not affect the enablement for such a conversion by means of a statutory declaration (complying with subsection (2) of the section) delivered to the registrar of companies after the commencement date.

(2)For the purposes of sections 577(4) and 583 of the principal Act (consequences of actual or prospective failure to pay debts in full within the period stated by the directors in the declaration of solvency), the period stated in the declaration in the case of a winding up converted under section 107 is taken to have been 12 months from the commencement of the winding up, unless the contrary is shown.

Miscellaneous amendmentsE+W+S

F1025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

26 Industrial and Provident Societies Act 1967.E+W+S

(1)The following provisions of this section have effect with regard to the M8Industrial and Provident Societies Act 1967 (of which certain provisions were amended by section 10 of the M9Companies (Floating Charges and Receivers) (Scotland) Act 1972).

(2)For section 3 of the Act of 1967 the following shall be substituted—

“3 Application to registered societies of provisions relating to floating charges.

(1)Subject to the following provisions of this section, the following provisions of the Companies Act 1985 relating to floating charges, namely Chapter I of Part XVIII together with sections 517(2) and 617(3) (which provisions are in this Part referred to as “the relevant provisions”) shall apply to a registered society as they apply to an incorporated company.

(2)Accordingly (subject as aforesaid) the relevant provisions shall, so far as applicable, apply as if—

(a)references to a company or an incorporated company were references to a registered society;

(b)references to the registrar and the registrar of companies were references to the registrar under this Act; and

(c)references, however expressed, to registration of a floating charge, or registration in accordance with Chapter II of Part XII of the Act of 1985, or delivery to or receipt by the registrar of particulars for registration, were references to the delivery to the registrar of any document required by section 4(1) of this Act to be so delivered.

(3)Where, in the case of a registered society, there are in existence—

(a)a floating charge created by the society under the relevant provisions as applied by this section, and

(b)an agricultural charge created by the society under Part II of the Agricultural Credits (Scotland) Act 1929,

and any assets of the society are subject to both charges, sections 463(1)(c) and 464(4)(b) of the Act of 1985 shall have effect for the purpose of determining the ranking with one another of those charges as if the agricultural charge were a floating charge created under the relevant provisions and registered under that Act at the same time as it was registered under Part II of the Act of 1929.

(4)In this section, and in the following provisions of this Part of this Act, “registered society” does not include a registered society whose registered office is situated in England and Wales.

(5)In their application to a registered society, the relevant provisions shall have effect with the following modifications—

(a)in sections 462(2) and 517(2), the references to the Court of Session shall be read as references to any sheriff court;

(b)section 462(5) shall be subject only to such provisions of the Act of 1985 as apply (by virtue of section 55 of the principal Act) to registered societies; and

(c)in section 466, subsections (4) and (5) and the words “subsection (4) of” in subsection (6) shall be omitted.”

(3)Subsections (1) and (2)(a) of section 4 of the Act of 1967 continue in force as amended by paragraph (iv) of section 10 of the M10Companies (Floating Charges and Receivers) (Scotland) Act 1972.

(4)In sections 4 and 5 of the Act of 1967, for the words “Part I of the Act of 1972” there shall be substituted the words “the relevant provisions of the Companies Act 1985”.

F1127 Amendment of Table A.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeal of obsolete provisionsE+W+S

F1228 Stannaries and cost-book companies.E+W+S

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Repeals, etc. consequential on Companies Acts consolidation; continuity of lawU.K.

29 Repeals.U.K.

The enactments specified in the second column of Schedule 1 to this Act are repealed to the extent specified in the third column of the Schedule.

30 Amendment of post-1948 statutes.E+W+S

The enactments specified in the first column of Schedule 2 to this Act (being enactments passed after the Act of 1948 and containing references to that Act or others of the Companies Acts 1948 to 1983) are amended as shown in the second column of the Schedule.

31 Continuity of law.E+W+S

(1)In this section—

(a)“the new Acts” means the principal Act, the M11Company Securities (Insider Dealing) Act 1985, the M12Business Names Act 1985 and this Act;

(b)“the old Acts” means the Companies Acts 1948 to 1983 and any other enactment which is repealed by this Act and replaced by a corresponding provision in the new Acts; and

(c)“the commencement date” means 1st July 1985.

(2)So far as anything done or treated as done under or for the purposes of any provision of the old Acts could have been done under or for the purposes of the corresponding provision of the new Acts, it is not invalidated by the repeal of that provision but has effect as if done under or for the purposes of the corresponding provision; and any order, regulation or other instrument made or having effect under any provision of the old Acts shall, in so far as its effect is preserved by this subsection, be treated for all purposes as made and having effect under the corresponding provision.

(3)Where any period of time specified in a provision of the old Acts is current immediately before the commencement date, the new Acts have effect as if the corresponding provision had been in force when the period began to run; and (without prejudice to the foregoing) any period of time so specified and current is deemed for the purposes of the new Acts—

(a)to run from the date or event from which it was running immediately before the commencement date, and

(b)to expire (subject to any provision of the new Acts for its extension) whenever it would have expired if the new Acts had not been passed;

and any rights, priorities, liabilities, reliefs, obligations, requirements, powers, duties or exemptions dependent on the beginning, duration or end of such a period as above mentioned shall be under the new Acts as they were or would have been under the old.

(4)Where in any provision of the new Acts there is a reference to another provision of those Acts, and the first-mentioned provision operates, or is capable of operating, in relation to things done or omitted, or events occurring or not occurring, in the past (including in particular past acts of compliance with any enactment, failures of compliance, contraventions, offences and convictions of offences), the reference to that other provision is to be read as including a reference to the corresponding provision of the old Acts.

(5)A contravention of any provision of the old Acts committed before the commencement date shall not be visited with any severer punishment under or by virtue of the new Acts than would have been applicable under that provision at the time of the contravention; but—

(a)where an offence for the continuance of which a penalty was provided has been committed under any provision of the old Acts, proceedings may be taken under the new Acts in respect of the continuance of the offence after the commencement date in the like manner as if the offence had been committed under the corresponding provision of the new Acts; and

(b)the repeal of any transitory provision of the old Acts (not replaced by any corresponding provision of the new Acts) requiring a thing to be done within a certain time does not affect a person’s continued liability to be prosecuted and punished in respect of the failure, or continued failure, to do that thing.

(6)A reference in any enactment, instrument or document (whether express or implied, and in whatever phraseology) to a provision (whether first in force before or after the Act of 1948 or contained in that Act) which is replaced by a corresponding provision of the new Acts is to be read, where necessary to retain for the enactment, instrument or document the same force and effect as it would have had but for the passing of the new Acts, as, or as including, a reference to that corresponding provision.

(7)The generality of subsection (6) is not affected by any specific conversion of references made by this Act, nor by the inclusion in any provision of the new Acts of a reference (whether express or implied, and in whatever phraseology) to the provision of the old Acts corresponding to that provision, or to a provision of the old Acts which is replaced by a corresponding provision of the new.

(8)Nothing in the new Acts affects—

(a)the registration or re-registration of any company under the former Companies Acts, or the continued existence of any company by virtue of such registration or re-registration; or

(b)the application of—

(i)Table B in the M13Joint Stock Companies Act 1856,

or

(ii)Table A in the M14 Companies Act 1862, the M15Companies (Consolidation) Act 1908,the M16Companies Act 1929 or the M17Companies Act 1948,

to any company existing immediately before the commencement date; or

(c)the operation of any enactment providing for any partnership, association or company being wound up, or being wound up as a company or as an unregistered company under any of the former Companies Acts.

(9)Anything saved from repeal by section 459 of the Act of 1948 and still in force immediately before the commencement date remains in force notwithstanding the repeal of the whole of the Act.

(10)Where any provision of the new Acts was, immediately before the commencement date, contained in or given effect by a statutory instrument (whether or not made under a power in any of the old Acts), then—

(a)the foregoing provisions of this section have effect as if that provision was contained in the old Acts, and

(b)insofar as the provision was, immediately before that date, subject to a power (whether or not under the old Acts) of variation or revocation, nothing in the new Acts is to be taken as prejudicing any future exercise of the power.

(11)The provisions of this section are without prejudice to the operation of sections 16 and 17 of the M18Interpretation Act 1978 (savings from, and effect of, repeals); and for the purposes of section 17(2) of that Act (construction of references to enactments repealed and replaced; continuity of powers preserved in repealing enactment), any provision of the old Acts which is replaced by a provision of the principal Act, the M19Company Securities (Insider Dealing) Act 1985 or the M20Business Names Act 1985 is deemed to have been repealed and re-enacted by that one of the new Acts and not by this Act.

GeneralE+W+S

32 Interpretation.E+W+S

In this Act—

• “the Act of 1948” means the M21Companies Act 1948,

• “the Act of 1980” means the M22Companies Act 1980,

• “the Act of 1981” means the M23Companies Act 1981, and

• “the principal Act” means the M24Companies Act 1985;

• and expressions used in this Act and also in the principal Act have the same meanings in this Act as in that (the provisions of Part XXVI of that Act to apply accordingly).

33 Northern Ireland.E+W+S

Except in so far as it has effect for maintaining the continuity of the law, or—

(a)repeals any enactment which extends to Northern Ireland, or

(b)amends any enactment which extends to Northern Ireland (otherwise than by the insertion of provisions expressed not so to extend),

nothing in this Act extends to Northern Ireland.

34 Commencement.E+W+S

This Act comes into force on 1st July 1985.

35 Citation.E+W+S

This Act may be cited as the Companies Consolidation (Consequential Provisions) Act 1985.

SCHEDULES

Section 29.

SCHEDULE 1U.K. Enactments Repealed

X1F14F15 SCHEDULE 2U.K.Amendments of Enactments Consequential on Consolidation of Companies Acts