Back
Effective 1 June, we have a new address: 34 Imperial Square, Cheltenham, Gloucestershire GL50 1QZ
Get in Touch Menu

Duomatic principle throws shareholder consent under spotlight

15 November 2017

The Duomatic principle is a long-established common law principle of company law. It allows shareholders of a company to consent to a matter informally, without the need for attending and voting at a general meeting. The consent must be unanimous and be given in full knowledge of the matter in order to be binding in the same way as a resolution passed at a general meeting. The Duomatic principle was the subject of a recent Court of Appeal decision.

In Randhawa and another v Turpin and another (2017), the Randhawas were creditors of BW Estates Limited (Company) in which Mr David Williams (DW) held 75% of the shares on bare trust for his father, Mr Robert Williams (RW). The remaining 25% was held by Belvadere Investment Company Limited (Belvadere), which was dissolved in 1996.

The Company’s articles of association (Articles) stated that the quorum for board meetings was two directors and the quorum for general meetings was two shareholders. However, DW had been acting as the sole director of the Company since 2009 when RW was disqualified as a director.

At an informal meeting, it was decided that the Company would be put into administration and DW resolved to appoint administrators at a board meeting. The Randhawas claimed that the appointment of the administrators was invalid because the decision had been made at an inquorate board meeting. The administrators argued that their appointment was valid under the Duomatic principle.

The High Court held that:

  • the quorum in the Articles had been informally amended on the basis that DW had been allowed to run the Company as a sole director
  • the assent of Belvadere was not necessary as it was incapable of exercising its voting shares having been dissolved
  • even if consent was required, the Duomatic principle had been triggered by the fact that RW was likely to be the beneficial owner of all the shares in the Company and had assented to the Articles being amended.

The Randhawas appealed and the decision was overturned by the Court of Appeal for the following reasons:

  • Belvadere remained a member of the Company (being listed on the register of members) and that membership could not be disregarded.
  • The Duomatic principle requires the consent of all the shareholders notwithstanding the fact that Belvadere was a dissolved company and was therefore incapable of consenting.
  • Even if it could be shown that RW beneficially owned the shares in Belvadere, his consent would be meaningless because Belvadere’s assets had been transferred to the Crown and the Crown had not consented.

Frustratingly, the judgment did not comment on whether the Duomatic principle will apply when a company’s beneficial owners assent where there is nobody formally entitled to agree on behalf of the registered shareholder.

However, the case is a reminder of the importance of keeping the register of members up-to-date as the Duomatic principle requires unanimous consent of all the voting shareholders on the register of members, irrespective of whether or not they are capable of voting.

We're here to help
Contact
Chris Wills LLB (Hons)
Partner
View profile
Chris Wills
Related services
Share this article
Resources to help

Related articles

Top tips for improving wellbeing in the workplace

Employment

A recent CIPD Health and Wellbeing at work survey has reported that most organisations are taking additional measures to support employee health and wellbeing, in response to COVID-19. Three quarters…

Jenny Hawrot LLB (Hons)
Partner

SCCs: New rules governing cross-border data transfers and data exchanges from the EU and EEA

GDPR & data protection

This September brings change to the use of standard contractual clauses (SCCs) governing data transfers from the EU and EEA. In June this year, the European Commission published two sets…

Kym Fletcher LLB (Hons) Euro
Consultant, solicitor

Catch up on our free legal webinars

Commercial

Our legal experts have been busy sharing valuable expertise in their first series of free webinars for employers, and businesses across the county who missed the live events can now…

Willans
Solicitors
Contact us