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Reminder: Dual Capacity

A single director company cannot satisfy certain requirements of the Companies Act by the signature of the sole director in a dual capacity as both director and secretary. Section 134 Companies Act 2014 prohibits this.

Section 134 of the 2014 Act provides
“A provision of—
(a) this Act;
(b) an instrument under it; or
(c) a company’s constitution,
requiring or authorising a thing to be done by or to a director and the secretary shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary”. (Emphasis added)

The Companies Act 2014 introduced the concept of single director companies. (Private limited by shares companies registered under Part 2 of the Companies Act 2014 can be single director companies (LTD companies). These companies are still required to have a separate company secretary. The company secretary must be someone other than the existing sole director. If the sole director appoints a separate company to act as its secretary, the sole director in question might also be a director of that secretarial company. However, he/she cannot sign documents for the first company as secretary where a document requires the signatures of both the director and secretary i.e. a person cannot sign both as director and as, or in place of, the secretary on the same form. Please note, that section 134 of the Companies Act which provides this rule also applies to companies with two or more directors. Companies have the capacity to appoint a registered person under section 39 Companies Act 2014 to act on behalf of the company (form B46).

Notable forms which require the signatures of both the director and the secretary include:

Form A1 – the company incorporation document and
Form B1 – the annual return
.

Two different people have to sign off on the forms. Equally and as already pointed out above, this would apply to companies with two directors signing off on the form B1. The one individual as director cannot sign the same form as both secretary and director. The second director is required to sign as well.

If a form A1 or B1 is received (or any other prescribed form that requires the signatures of both a director and the secretary for certification) and the same individual signs as both director and secretary, this form will be rejected and returned to the presenter.