A quick reference on who you must send a written special resolution to in a private company, and what happens if some members don't receive it. References are to the Companies Act 2006.
The core obligation
Send the resolution to every eligible member, not just enough of them to reach 75%.
- Eligible members are all those entitled to vote on the resolution as at the circulation date (s.289).
- The company must send or submit a copy to every eligible member, so far as reasonably practicable at the same time (s.291).
- The 75% is the approval threshold, not a limit on who you notify. Circulating only to enough members to pass is not permitted.
The passing threshold
A written special resolution passes when members representing not less than 75% of the total voting rights of all eligible members agree (s.283(2)).
- The denominator is the entire voting membership, not just those who responded.
- Members who never respond effectively count as "no", because their voting rights stay in the total.
- The resolution takes effect the moment that 75% is reached (s.296(4)).
If some members don't receive it
Two consequences, and they are different:
- Validity. Failure to send to every eligible member does not, of itself, invalidate the resolution (s.291(7)). So non-receipt does not void a resolution that has otherwise crossed 75% of the total voting rights.
- Offence. Failing to send to every eligible member is an offence by every officer in default (s.291(5)-(6)).
The practical result:
- If agreeing members already represent 75%+ of all voting rights, the resolution is valid despite the gap.
- If they fall below 75% once the non-recipients are counted in, the resolution has simply not passed. Re-circulate or convene a general meeting.
Delivery method matters
Inviting members to a platform is not the same as validly serving them. Communication by website (Schedule 5) generally requires the member to have agreed (or be deemed to have agreed) to that channel, plus separate notification that the document is available. A member who never created a platform account arguably was never validly sent the resolution at all.
Timing is key
- A written resolution lapses if not passed within 28 days of the circulation date, unless the articles say otherwise (s.297).
- A passed special resolution must be filed at Companies House within 15 days, counted from the date the 75% threshold was reached (s.29-30).
Unfair prejudice risk
Even where validity is settled, a minority member deliberately or carelessly left out of the vote could frame the exclusion as unfair prejudice under s.994, especially if the resolution affected their rights (new share classes, dilution, article changes).
Best defensive posture:
- Keep evidence that any omission was accidental (e.g. platform non-adoption, not targeting).
- Promptly send the passed resolution to any member who did not receive it, even after the fact.
