Director disqualification proceedings are usually commenced under the provisions of the Company Directors Disqualification Act 1986 (‘CDDA 1986’). Such proceedings are brought against “directors”. However, it is not only the directors registered at Companies House who may be the subject of an investigation or court proceedings.
A person may be a “director” in law, and therefore subject to proceedings, even if not registered at Companies House. Such persons may be targeted as “de facto” directors or as “shadow” directors.
Proceedings usually have to be commenced against the director within two years of the date of the formal insolvency of the company to which the conduct relates. Disqualification lasts between 2 and 15 years, depending on the severity of the admitted or proven “unfit conduct.”
In order to prove the case, the Secretary of State will usually have to demonstrate that the director has been involved in or allowed others to be involved in unfit conduct, usually arising out of a failed company. The question of what constitutes unfit conduct must be determined on the facts of each individual case.
Each case must be considered on its own merits and in the context of all relevant facts. The company director is best placed to know those facts and to provide the relevant instructions to the legal team defending the claim.
It is vital that the company director seeks and obtains specialist legal advice as early as possible as insolvency law, procedure and director disqualification claims are complex and require expert advice if the matter is to be brought to a successful conclusion.
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The response from a company director will very much depend on the facts of each case and on what the director wishes to achieve by way of an outcome.
The options available to a company director include:
- Fighting to defeat the claim in its entirety, or
- Negotiating a lower period of disqualification than that being offered by the Secretary of State, or
- Entering into a director disqualification “undertaking” in agreed terms to end the proceedings
No. It isn’t.
The Secretary of State in putting together a case against a company director often only knows one side or part of the story. It is vital that the director who has “lived” the story puts this version of the events to the Secretary of State at the earliest opportunity.
In response to a letter from the Secretary of State (or its appointed solicitors) the well advised director will meet the claim head on and respond to it in appropriate terms.
This will usually involve preparing written representations to the Secretary of State and/or having a face-to-face meeting with the Secretary of State to ensure that the director’s position is fully understood by the Secretary of State.
Obtaining and interpreting the Secretary of State’s evidence bundle is a crucial first step, so that the full extent of the alleged case against the director is understood.
Many director disqualification cases can be successfully defended on the basis of misunderstandings and errors contained in the Claimant’s evidence.
Yes, this can and often does happen if the director can demonstrate that at no stage could any action or inaction by the director be deemed to amount to unfit conduct.
The Secretary of State can and does review the director disqualification proceedings at every stage of the case, even after the issue and service of formal court proceedings.
It is not unusual for director disqualification proceedings to be abandoned by the Secretary of State, even after the commencement of legal proceedings.
Each case will be unique but there are many common examples when the Secretary of State may allege that the director is guilty of unfit conduct.
For example, the Secretary of State may allege that the director:
- Caused the company to trade on for too long (“trading to the detriment of the Creditors” or “trading with knowledge of insolvency”)
- “Traded to the detriment of the Crown” or failed in the statutory obligations, by allowing the company to run up Crown debts, in respect of any combination of VAT, PAYE and Corporation Tax
- Entered into transactions to the detriment of the company (e.g. paying off a personally guaranteed bank debt prior to insolvency) or by selling company assets at an undervalue
- Failed to maintain, preserve or deliver up the books and records of the company to its appointed Insolvency Practitioner
A Director Disqualification Order usually precludes the disqualified director from being involved in “the promotion, formation or management” of another Limited Company, during the currency of the disqualification.
“Management” is widely construed and it is very easy for a director to become involved in a new business and to unwittingly breach a Director Disqualification Order.
Such a breach has criminal law and civil law consequences for the Director.
Often the Secretary of State will not seek to recover legal costs from the director if matters resolve before the commencement of proceedings.
Legal Aid is not ordinarily available to defend director disqualification claims. The director may be compelled to fund the legal expense of defending or negotiating a settlement of the claim.
If the right advice is sought and given at the very early stages of a claim it is often money well spent.
This can happen in several ways and some examples of how the director can bring proceedings to an end include by:
- Successfully defend the claim at a final hearing, or
- Persuading the Secretary of State to abandon the case, or
- Entering into a Director Disqualification Undertaking
An “Undertaking” is a document which details the unfit conduct that a director may be willing to admit to in order to end the claim as quickly and cost effectively as possible.
An Undertaking can be entered into before or after the commencement of formal court proceedings.
The terms of the Undertaking need to be carefully scrutinised and agreed in terms that are acceptable to the director so that, for example, those terms do not leave the director exposed to other civil or criminal action.