Director Disqualification Orders and Undertakings | Solicitors defending Company Directors
Dean Phillips of Kangs Solicitors provides some guidance in relation to Company Director Disqualification Proceedings.
The circumstances leading to Director Disqualification Proceedings frequently involve a number of various issues and allegations.
Although the Court or Secretary of State may only be concerned as to whether a company director is “unfit” to be involved in the management of a company, the same circumstances may also give rise to other potential civil or, indeed, criminal proceedings being brought against the director.
Once a Director Disqualification Order has been made, or a director has given an Undertaking containing a schedule of facts, consideration needs to be given as to the impact this Order or Undertaking could have on defending other proceedings which may be brought.
Use of Judicial Findings | Director Disqualification Solicitors
Where evidence has been presented and tested before a Judge in open Court, the Judge’s findings may be available for use in subsequent civil cases.
This will often be on the grounds that the facts have already been litigated on or that forcing parties to re-litigate these facts could be an abuse of process.
It should be emphasised that whether or not these prior findings will be binding is highly dependent on the facts of the case including:
- The level of representations
- The parties to the case
- Whether the point was properly contested in the earlier hearing.
Due to the higher standard of proof required in criminal cases, the findings and determinations made in civil cases are not binding on the criminal court.
Can the Director’s Undertaking subsequently be used against him? | Defending Company Directors
Although the fact that an Undertaking was accepted by the Secretary of State may be adduced in evidence in subsequent proceedings, the relevance of the facts within the Schedule were considered in the cases of R v Blackspur Group plc (No.3) SoS v Davies (No.3) 2001 and Brazzo v Ruutledge .
In R v Blackspur, the Court held that the content of Schedules forming part of Undertakings cannot be relied upon on as evidential proof for the purposes of subsequent proceedings.
Additionally, it was held that the only evidential use of the Schedule content is that the matters referred to are not disputed and are not admissions of those matters.
In Brazzo v Routledge, it was accepted that the fact that such an Undertaking was signed can be put to a defendant in cross-examination and he is allowed to explain the reasons why the undertaking was given.
In the same case, it was also accepted that the defendant was entitled to confirm that the facts of the Schedule were completely disputed and that the Undertaking was only given in order to “reduce the period of disqualification and save costs”
Considering the future implications | Solicitors defending Insolvency Service proceedings
Giving an Undertaking may be advantageous in order to guard against the possibility of an anticipated adverse ruling being subsequently used against the former director in ancillary civil or criminal proceedings.
If you are in the position where Director Disqualification Proceedings are being considered or, indeed, ongoing against you, you need to carefully consider your options before deciding how to respond if an Undertaking is offered or whether to offer one voluntarily.
How can we help you? | Kangs Solicitors
Kangs Solicitors have experience in dealing with all stages of Director Disqualification Proceedings and will be able to offer you:
- a detailed appraisal of the situation
- the potential options open to you
- the various consequences that may flow from any course of action decided upon.
Please feel free to contact any of our team as detailed below: