Can a resolution of the members be passed as a written resolution?

It is not possible in a public company. Resolutions may only be passed at a meeting.

Subject to observance of the correct procedures it is possible in all private companies, and it is very common. However, it is not possible to remove a director or auditor before the expiry of their term of office in this way. This is because they have the right to speak at the meeting and a written resolution would deprive them of this opportunity.

What are the rules for a written resolution of the members in a private company?

A written resolution is passed if it obtains the number of votes that would have sufficed at a meeting with all votes being cast. So, if there are ten members with one vote each, an ordinary resolution will be passed if six votes are cast in favour and a special resolution will be passed if eight votes are cast in favour. It is immaterial whether the other votes are not cast or are cast against.

A written resolution can be proposed by the directors or by members holding at least 5 per cent of the voting rights, though this percentage may be reduced by the articles. The members may also supply a statement of up to 1,000 words for circulation with the resolution. The directors must circulate the resolution and the statement unless they successfully apply to the court for permission not to do so. Such an application may be based on the contention that they are defamatory of any person, frivolous, vexatious or that the resolution, if passed, would not be legally effective.

A written resolution is in effect a postal ballot though, subject to the requirements, it may be conducted electronically. The members must receive a statement informing them how to signify agreement and the date that the resolution is to pass if it is not to lapse. The period allowed is the period specified in the articles, or 28 days if no period is specified.

I have heard that a decision may be taken as an informal corporate act rather than by passing a resolution. How does this happen?

You have heard correctly. Judges have long taken the view, and not just in company matters, that if a group of men and women are absolutely unanimous, it is unnecessary to insist on the formalities of their constitution. This common law doctrine is recognised by the Act and it applies in both public and private companies, though it is of course most likely to be invoked in small private companies.

The members can take most decisions as an informal corporate act, provided that they are absolutely unanimous. There is no notice, no resolution and no meeting - the members just act. There are though just a few decisions that cannot be made in this way, and they include the removal of a director or an auditor, but most decisions that would normally require a special resolution may be taken as an informal corporate act.

There is a rather optimistic requirement that informal corporate acts be minuted as though decisions had been taken at a meeting. Also they must where applicable be registered with the Registrar of Companies as though they had been taken as resolutions in a meeting. Furthermore, it will probably not escape your notice that in the event of a challenge it may be difficult to show that there was 100 per cent agreement to an informal corporate act. It is recommended that in very few cases indeed and only in small companies, should reliance be placed on informal corporate acts. Better still if possible, it is best not to rely on it at all.

Would you please summarise the required notice periods for the different resolutions and also the majority of votes cast in each?

Articles may call for longer notice periods.

Would you please explain what is meant by 'clear days'?

It depends on the articles and how the notice is sent, and this answer is valid for notice of meetings as well as notice of resolutions.

The day that the notice is sent and the day of the meeting must both be added - so as an absolute minimum 14 days clear notice means 16 calendar days. If the notice is posted, it is normal to add a further 48 hours for the post plus Sundays and bank holidays - so 14 clear days means at least 18 calendar days.

What resolutions must be registered with the Registrar of Companies?

It is quite a list but in practice you are not likely to encounter most of it. Special resolutions (which are needed to amend the articles) are the most common. In all cases the resolutions must be delivered within 15 days. The list is as follows:

any special resolution (s. 29(1)(a) (2006);

any resolution or agreement agreed to by all the members that, if not so agreed, would not have been effective unless passed as a special resolution (s. 29(1)(b) (2006);

any resolution or agreement agreed to by all the members of a class of shareholders that, if not so agreed to, would not have been effective unless passed by some particular majority or otherwise in some particular manner (s. 29(1)(c) (2006);

any resolution or agreement that effectively binds all the members of a class of shareholders though not agreed to by all those members (s. 29(1)(d) (2006);

a resolution of the members under para. 10 of Schedule 5 to the 2006 Act (company communication provisions: deemed agreement of members to use of website);

a resolution for voluntary winding up passed under s. 84(1) of the Insolvency Act 1986;

a resolution passed by the directors of an old public company under s. 2(1) of the Companies Consolidation (Consequential Provisions) Act 1985 that a company should be re-registered as a public company;

a resolution of the directors passed by virtue of reg. 16(2) of the Uncertificated Securities Regulations 2001 allowing title to the company's shares to be evidenced and transferred through CREST;

a resolution of the directors passed by virtue of reg. 16(6) of the Uncertificated Securities Regulations 2001 preventing or reversing a resolution of the directors allowing title to the company's shares to be evidenced and transferred through CREST.