Corporate and Commercial

Carla Bernstein, Ewan Ooi
February 2025

  • The High Court has once again expanded on the confusing area of sole director decision making, where a company has adopted the Model Articles.

Confusion within the Model Articles

It is widely accepted that the Model Articles are free from inconsistencies and are suitable for all company incorporations. However, the Model Articles has faced scrutiny in the High Court on numerous occasions, as their suitability for companies with a sole director has been questioned.

Article 7(2) of the Model Articles states that if (a) the company only has one director, and (b) no provision of the articles requires it to have more than one director, the general rule does not apply, and the director may take decisions without regard to any of the provisions of the articles relating to directors’ decision-making.

On the other hand, Article 11(2) stipulates that the minimum number of directors required to hold a board meeting must be at least two (i.e., the quorum for a board meeting is two) and that no other decisions can be made (as a sole director) save for appointing another director.

The case of Hashmi v Lorimer Wing [2022] concluded that one director is not sufficient for a board meeting to be held and decisions to be made, given that a sole director is unable to create a quorum by satisfying the minimum of two directors that are required for a board meeting, as set out in Article 11(2).  

In contrast, in the same year, the case of Re Active Wear Limited [2022] concluded that a sole director has valid authority to make decisions on behalf of the company. It is important to note that the judge commented that this would not have been the case where the company has in the past had more than one director.

Whilst the decision of Re Active Wear Limited [2022] was welcomed, the confusion created by contrasting interpretations of Articles 7(2) and 11(2) of the Model Articles remained.

Clarification: Re KRF Services (UK) Ltd [2024] EWHC 2978 (Ch)

In the recent case of Re KRF Services (UK) Ltd [2024], the High Court has provided further clarification on the tension between Articles 7(2) and 11(2) of the Model Articles.

After consideration of the aforementioned cases of Hashmi v Lorimer Wing [2022] and Re Active Wear Limited [2022], the judge held that where a company has adopted Model Articles, the sole director has the authority to act under Model Article 7(2). The judge commented that, insofar as the company has adopted unamended Model Articles, Article 7(2) will triumph over Article 11(2). The Court distinguished the case of Hashmi v Lorimer Wing, as that involved a modification to the minimum number of directors, and the judge concluded that the historical number of directors is irrelevant in determining whether Article 7(2) will take precedence over Article 11(2).

What does this mean for companies that have adopted the Model Articles?

Whilst the case of Re KRF Services (UK) Ltd [2024] has provided some clarification and has indicated that the courts are leaning towards allowing sole directors to act where Model Articles have been adopted, it is important to note that it is a High Court decision which does not overrule the previous judgments. It has merely provided some clarification.

As a result, companies with a sole director and who have Model Articles need to be alert to the fact that decisions made by a sole director have previously been deemed to be invalid by the Court. Therefore, it is worth considering whether it would be commercially expedient to appoint another director to ensure all future board meetings are quorate and compliant with Model Article 11(2).

In our experience advising financial institutions in debt finance transactions involving corporate borrowers the preference is amending the company’s Articles. The amendment explicitly states that a quorum can be formed with only one sole director present, and such director has all powers of decision making. It is prudent for shareholders to ratify previous decisions of the sole director as part of this process. This documentation and amendment to the Articles can give comfort to sole directors that they can operate the company as they deem fit without the risk of challenge.