TheIP Company Limited is a private limited company, registered in England and Wales.
It is has just become a client of IPLaw.
TheIP Company Limited did not previously have external legal advisors..
Each year TheIP Company Limited has to sign hundreds of documents to deal with the prosecution of patent applications (IPDocs). Many of these IPDocs are for use outside of England and Wales.
The directors of TheIP Company Limited found it too tedious signing the IPDocs, The directors want one its employees (its IP Manager, JS) to sign them.
The directors hold board of directors meetings once every six months. One director decided he (DH) has had simply enough of signing IPDocs, and he did not want to wait until the next board meeting (in five months’ time).
He instructed his assistant that he wanted some way found so that the IP Manager is authorised to sign the IPDocs.
DH told his assistant that he thought a previous board meeting had authorised the IP Manager to sign documents and that his diary indicated it would have been around 2 December 2017.
After some searching online, DH’s assistant finds a forum dealing with a similar topic and sends a note to DH advising DH that:
TheIP Company Limited should make the IP Manager the attorney of IP Company Limited; and
TheIP Company Limited should sign a power of attorney authorising the IP Manager to sign the documents.
DH asks his assistant to prepare the power of attorney and DH signed it.
DH’s assistant has since discovered that, in fact, there was no resolution appointing the IP Manager as the attorney of TheIP Company Limited. Only a resolution authorising the IP Manager to sign documents regarding patent prosecutions on TheIP Company Limited’s behalf.
DH did not consult with, or inform, the other directors of TheIP Company Limited as to what he was doing.
The other directors have finally had enough of the highhanded and secretive way DH dealt with the affairs of TheIP Company Limited. DH was forced to resign.
The other directors then appointed IPLaw, and asked IPLaw to review the documentation signed by DH in case ‘there were any problems’.
The partner in charge at IPLaw has asked you to review the power of attorney.
The text to the power of attorney is set out from this link.
What the partner at IPLaw wants to know
The partner in charge would like to know:
Whether JS is validly appointed an attorney for and on behalf of the IPCompany Limited;
Whether the power of attorney is validly executed;
If the answer to question 2 is ‘no’;
is the document invalid or voidable, and
can a third party rely on it?
Law you will need to look at
Companies Act 2006, ss 39–42;
Companies Act 2006, ss 43 to 47;
Powers of Attorney Act 1971;
Law of Property (Miscellaneous Provisions) Act 1989; and
Model articles for private companies limited by shares, article 3.
However, looking at the above material may not be enough to answer some parts of the question. You may wish to look at practitioner books on:
company law, particularly the sections on the powers and capacity of directors; and
powers of attorney and/or the execution of documents, if you decide that the power of attorney is not validly executed.
How to present your answer
Use plenty of headings;
Use bullet points or numbered lists;
Confine your answer to 2 sides of A4;
Use a type size no smaller than 12pt; and
For legislative sources etc, you do not need to quote the text of any provision (such reference to section numbers, etc.).