As explained in my question, the resolution came from the directors acting on their own. There was never any resolution passed at a general meeting. For your information, I've attached a copy of the resolution, as filed at Companies House.
For some reason, the image upload feature on the JustAnswer website doesn't seem to be working. If you want to look for yourself on the Companies House website, it's company number 05024183 and the resolution was filed on 18/06/2009.
The directors were acting under the advice/coercion of our managing agent, who was company secretary at the time and was the instigator of the action. I don't think any of the members would want to hold the directors responsible for acting in good faith on the incorrect advice they received.
Only one of the directors who were party to the resolution is still in office, and he wants to resign as soon as replacement directors can be found. The only two people prepared to stand as directors are non-resident leaseholders, which is why this issue has come under scrutiny. If the resolution has no legal standing, then the remaining director can appoint two new directors straight away.
Could you also comment on my analysis of the effect of the 2009 model Articles?
Thank-you very much. It sounds like we can proceed to appoint two non-resident leaseholders as directors, without any further concerns.
As I understand from the 2009 articles 16(3)(a), a sole director is empowered to appoint new directors, who will subsequently have to be re-elected at the next AGM of members. Is this correct?
Can you please repeat your last sentence above - I think one or more words are missing.
Would minutes of a directors' meeting, acknowledging that the 2009 resolution was invalid, be OK as a "proper company record"?
Is that necessary? From your earlier answer, the model 2009 articles are already in effect and we're quite happy for that situation to continue. Why would we need to file another set of articles which would be identical to the 2009 model articles already in place?
First, I'm confused by your words "when the invalid articles were incorporated into the company constitution". As the correct process was not followed, surely the amendment to the articles never became legally incorporated into the company constitution?
Second, there's an added complication here (or maybe not). When the directors' resolution was filed on 18/06/2009, a set of articles was filed alongside them on the same date. However, those articles appear to be identical to our original M&As from 2004 and do not contain the amendments specified in the directors' resolution.
Third, I still don't understand why we need to inform CH of the correct articles, when the correct articles (in the form of the 2009 model articles) are already in place, by default, as of 01/10/2010.
The answer is no. Only 2 sets of M&As have ever been filed at CH. The first was on 23/01/2004 when the company was first incorporated. The second was on 18/06/2009, supposedly in support of the directors' resolution that was filed on the same date. However, this second set of M&As was identical to the 2004 M&As and did not contain the amendment specified in the directors' resolution.
I still don't understand why this is relevant, though. We've established that, on 01/10/2010, the new model articles replaced our existing articles by default, as if we'd filed them ourselves. Even if invalid articles had been filed at an earlier date, surely they would have been superceded by the new model articles?
But I thought we established that no changes to the constitution of the company ever legally took place.