Company Law: Identifying Members

It is axiomatic that only those individuals registered as members have a right to vote. However the share registers kept by the company may not properly reflect the true membership constituency. In those circumstances the court enjoys the power under s.359 of the Companies Act 1985 to rectify the register. Such an application was considered by Blackburne J. in Re Isis Factors plc [2003] EWHC 1653 (Ch); [2003] EWHC 1653 (Ch). On the facts of that case Blackburne J. stated in para. 89 that in exercising his discretion to rectify he would apply principles comparable to those operating in cases where the court was being asked specifically to perform an agreement to allot shares. Thus, unreasonable delay or prejudice to innocent parties might compel the court to refuse to exercise its discretion. In this case a six-year delay and undoubted prejudice to a third party who had acquired control of the company in ignorance of the claimant’s interest was sufficient to persuade the court not to permit a s.359 rectification.

Sweet & Maxwell’s Company Law Newsletter: May 2004