The register of directors is what the outside world relies on. Section 137 of the Companies Act 1997 keeps it current, and section 136 protects those who have relied on it.
Section 136 — a defective appointment does not invalidate the acts
The acts of a person as a director are valid even though —
(a) the person’s appointment was defective; or
(b) the person is not qualified for appointment.
Section 136 sits with section 19(1)(b), under which a company cannot assert against an outsider that a person named in the most recent section 137 notice is not a director, has not been duly appointed, or lacks customary authority; and with section 18, under which an act is not invalid for want of capacity or power.
The Act protects the transaction and directs the consequences inwards. Under section 129(4), a disqualified person who acts as a director is a director for every provision imposing a duty or obligation — so the individual carries the burden even though their acts stand.
Note that section 133(3) expressly preserves section 136 where an appointment resolution is void for having bundled two or more appointments contrary to section 133(1).
Section 137(1) — the notice
(a) a change in the directors — whether by a director ceasing to hold office, the appointment of a new director, or both; or
(b) a change in the name or the address or the postal address of a director,
is submitted to the Registrar for registration.
A notice shall be submitted within one month of —
(i) the change occurring, in the case of the appointment or resignation of a director; or
(ii) the company first becoming aware of the change, in the case of the death of a director or a change in the name, address, or postal address of a director.
For an appointment or resignation the company controls the event, so the month runs from the change itself. For a death or a change of a director’s personal details the company may not know at once, so the month runs from when it first becomes aware.
Note that a change under section 135(1)(c) — a director becoming disqualified — vacates the office automatically and is a “change in the directors” requiring notice.
Section 137(2A) — the consent to be kept
A company shall keep at its registered office a signed consent by each new person named as a Director, in the prescribed form, and shall forthwith produce such consents to the Registrar when required to do so by written request.
This repeats for new directors what section 13A(1) requires at incorporation, and complements section 130, under which a person shall not be appointed unless they have consented in writing and certified that they are not disqualified.
- The section 130 consent and certification, signed by the appointee before appointment.
- The section 137(2A) copy kept at the registered office, producible forthwith on written request.
- The section 137(1) notice filed with the Registrar within one month.
Section 137(3) — the offence
Where the board fails to comply with this section, every director of the company commits an offence and is liable on conviction to the penalty in section 414(2).
The obligation is on the board; the offence falls on every director individually. A director who assumed someone else would attend to the filing is not excused — the same pattern appears in sections 33(4), 34(6), 44(4), 47(4), 56(5), 62(4) and 63(9).
Why the notice matters so much
| Provision | Effect |
|---|---|
| s 19(1)(b) | A company cannot assert against an outsider that a person named in the most recent notice is not a director, was not duly appointed, or lacks customary authority — unless the outsider knew or ought to have known |
| ss 395, 398 | The register is open to inspection, and a certified copy is admissible in evidence |
| s 215 | The annual return confirms the particulars; s 215A allows the Registrar to alter the register |
| ss 431, 432 | Service of documents may depend on knowing who the directors are |
| ss 425–429 | The register is how a prohibition on managing companies is monitored |
If the company does not file the notice, the former director remains named in the most recent section 137 notice — and section 19(1)(b) then prevents the company denying their authority to outsiders. A resigning director should therefore check the notice was filed, and if it was not, write to the Registrar enclosing the signed resignation and proof of delivery to the address for service.
Note also section 135(3): a former director remains liable for acts, omissions and decisions made while in office, whatever the register says.
Sources
- Companies Act 1997 — ss 13A, 18, 19, 33, 34, 44, 47, 56, 62, 63, 129, 130, 133, 135–137, 167, 215, 215A, 395, 398, 414, 425–429, 431, 432
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.