Company Law Essay Help : Officers of the Company
Cases referred to in this section
Burland v Earle [1902] AC 83 PC
Re Alexander's Timber Co (1901) 70 LJ Ch 767
Registrar of Restrictive Trading Agreements v WH Smith & Son Ltd [1969] 3 All ER 1065, CA
Gibson v Barton (1875) LR 10 QB 329
Creen v Wright (1876) 1 CPD 591
Prior to the enactment of the Companies Act 1948, there was no statutory definition of 'officer', but the Company Secretary and its auditors where they were appointed as such were held to be officers. A person casually employed by the directoes to prepare the balance sheet would not have been an officer - neither would a solicitor if the company was using his services in the normal way, although he would be an officer if employed on a fixed wage. A person employed to invest and manage the company's money would be an officer, as would a liquidator and administrator appointed under the Insolvency Act 1986.
Trustees of the company, trustees of a debenture trust deed, bankers, experts employed to investigate and report on management and the editor or chief reporter have all held not not be officers of the company.
Since the introduction of the Companies Act 1985, the term 'officer' has been defined in statute as including any director, manager or secretary.
'Manager' means, in everyday language, a person who has the management of the whole affairs of the company (Gibson v Barton (1875) LR 10 QB 329 at 336 per Blackburn J). Such a person holds a position in or with the company of a nature charging him with the duty of managing the affairs of the company for the company's benefit: this would not include a local manager (Registrar of Restrictive Trading Agreements v WH Smith & Son Ltd [1969] 3 All ER 1065 at 1069, CA, per Lord Denning MR).
The Director conducts the affairs of the company although he may be called something else, like trustee, member of the council or governor (directors are discussed in more detail in Directorsand Directors' Duties.
Every company must have a company secretary (Companies Act 1985 s 283(1)); but anything required or authorised to be done by or to the secretary, may, if the office is vacant or if there is for any other reason no secretary capable of acting, be done by or to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or to any officer of the company authorised generally or specially in that behalf by the directors (Companies Act 1985 s 283(3)).
The secretary must be appointed by the company under a written agreement specifying the general conditions of service, including the term of office and the period of notice for its termination.
Apart from any written agreement, the conditions of service for the secretary may be implied by the articles of association (Burland v Earle [1902] AC 83 at 101, PC although if the terms of a written agreement are clear, the articles cannot vary or modify the agreed conditions of service: Re Alexander's Timber Co (1901) 70 LJ Ch 767 at 769 per Wright J) or the general practice of the company or other companies of the same type and may be subject to reasonable notice on either side (Creen v Wright (1876) 1 CPD 591).
The company secretary cannot be:
(1) the sole director of the company (Companies Act 1985 s 283(2)); or
(2) a corporation, the sole director of which is the sole director of the company (Companies Act 1985 s 283(4)(a)).
A provision requiring or authorising a thing to be done by or to a director and the secretary is not satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary (Companies Act 1985 Section 284).
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