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Introduction
Individual directors of UK companies must currently file their residential addresses at Companies House, and therefore make them available to the public. This has long been a concern to many directors – particularly those operating in sensitive sectors, celebrities and other high-profile individuals. Equally, with the increased threat of identity theft, other directors are keen to keep personal details private.
Under provisions of the Companies Act 2006, coming into force on 1 October 2009, it will be possible for directors to limit the circumstances in which their residential addresses may be disclosed.
What is the current position?
At the moment, the usual residential address of a director is a matter of public record – available at Companies House and on the company's own register of directors.
Following a number of publicised incidents of animal-rights activists’ mounting campaigns of harassment and abuse against individuals, having obtained their home-address details from Companies House, Parliament issued amending legislation in 2002, enabling certain directors to remove their residential address from the register. 1
This exceptional relief, however, can only be obtained by seeking a statutory confidentiality order and is only granted where a director (or a person living with the director) is at "serious risk" of violence or intimidation if the address is disclosed.
What is the new position, from 1 October 2009?
In summary, newly appointed individual directors will be able to keep their residential addresses off the public register, which will now only publish service addresses.
Companies House will hold two separate registers: (a) the Register of Directors’ Residential Addresses, which will be kept private as this will be "protected information"; and (b) the Register of Directors, containing directors’ service addresses, which will be available to the public.
If convenient, the Register of Directors can simply record that a director's service address is "the company's registered office".
Similarly, each company will keep a record of its directors’ residential addresses, but will not make this available to the public.
Confidentiality obligations
For companies:
If a director gives a service address that is different from the director’s residential address, the company has a statutory duty not to use or disclose the director’s residential address unless:
- the director consents; or
- it is to communicate with the director concerned; or
- it is to comply with any provision to send information to Companies House; or
- it is to comply with a court order.
For Companies House:
Companies House is also placed under statutory confidentiality provisions and is not permitted to put a director’s residential address on the public record unless it is provided as the director’s service address. 2 Companies House is, however, under no obligation to check whether this information is provided to it by mistake (e.g. in other documents, such as the company's annual return).
From 1 October 2009, Companies House may only:
- use the director’s residential address to communicate with the director concerned; or
- disclose the director's residential address:
- in pursuance of a court order; or
- to specified public authorities (e.g. the Serious Fraud Office, the Panel on Takeovers and Mergers, or the Financial Services Authority) 3 or to credit reference agencies, subject to certain conditions. A director may, however, make an application to prevent this information being passed to a credit reference agency; or
- put the director’s residential address on the public record if (a) communications sent to the director at the service address which require a reply within a stated period are not answered or (b) there is evidence that sending documents to the service address is ineffective in bringing them to the director's attention. 4
Disclosure under court order
A court may, on the application of an interested person (e.g. a liquidator, creditor or shareholder), order the company or Companies House 5 to disclose a director's residential address if:
- there is evidence that service at the service address is not effective; or
- it considers that it is necessary or expedient for the information to be provided in connection with the enforcement of an order or decree of the court.
Some key implications
For directors:
- These new provisions will no doubt be seen as introducing positive change. From 1 October 2009, the onus will no longer on an individual director to show that he or she is at serious risk of violence or intimidation if the director’s residential address is disclosed; rather, the onus will generally be on an applicant to apply to court to have a director’s residential address disclosed.
- The new provisions are not, however, retrospective, so existing directors’ residential addresses that already appear on the public register will not automatically be removed. They will automatically be deemed to be service addresses for the purpose of the Companies Act 2006, so will not be treated as "protected information" (although any changes to directors' details after 1 October 2009 will be protected under the new regime).
- Individuals whose home addresses were placed on the register on or after 1 January 2003 can apply to have their home addresses made entirely unavailable for public inspection, as well as removed from the public register. To do so, they must follow a procedure similar to the previous confidentiality-order provisions (i.e. must provide evidence of a serious threat of violence or intimidation).
For companies:
- Creating and maintaining an additional Register of Directors' Residential Addresses will place additional burdens on companies, particularly as many new private companies will not have company secretaries charged with the administration of filings and maintenance of statutory records. Appropriate processes will also need to be implemented to ensure that directors' residential addresses are kept confidential. Nevertheless, once all the initial information has been gathered and systems have been put in place, it should become part of a company’s standard operating procedures.
- It is important to note that a director’s residential address does not cease to be confidential when the individual concerned ceases to be a director of the company. At the moment, other than explained above, there are no provisions in the Companies Act 2006 that deal with when these confidentiality obligations on the company (or on Companies House) come to an end.
Next steps
Companies and directors should consider what steps they should take to benefit from, and to comply with, this new legislation.
For further information in relation to this bulletin, please contact Caroline Copeland or Angus Bujalski.
Caroline Copeland and Angus Bujalski
1 Companies (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002 (SI 2002/912).
2 A director can state that the director’s usual residential address is the same as the service address, in which case that fact will also be "protected information" and kept confidential (but the address itself will be a matter of public record).
3 The full list of specified public authorities is contained in Schedule 1 to The Companies (Disclosure of Address) Regulations 2009 (SI 2009/214), coming into force on 1 October 2009.
4 If Companies House takes this action and follows the procedure outlined in the Companies Act 2006, the director may not file a service address other than the director’s residential address for five years.
5 The court will only order disclosure by Companies House if the company does not have the residential address or the company has been dissolved.
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