Our expert team regularly defend public interest winding up petitions and can help get them dismissed from court. If a company has been wound up in the public interest, our team can help defend any director disqualification proceedings which will inevitably follow. Let our team help you avoid the worst consequences of a public interest petition.
In Secretary of State for Business Innovation and Skills v PAG Management Services Ltd [2015] EWHC 2404 (Ch), (a case which involved tax avoidance schemes in relation to business rates) the court set down some helpful guidelines of the points they would need to take in to consideration before making a winding up order.
- the burden of proof lies on the Secretary of State to persuade the court (having proved matters of fact on the balance of probabilities) that it is “just and equitable” to wind the company up;
- even if the Secretary of State thinks it expedient in the public interest to wind up a company, the court still has a discretion whether or not to make a winding up order;
- the court must balance competing reasons why the company should be wound up in the public interest and why it should not be wound up upon a consideration of the totality of the evidence;
- before making a winding up order, the court must be satisfied that it is just and equitable to wind the company up in the public interest;
- as a result of undertaking that exercise the court must be able to identify for itself the aspects of the public interest which would be promoted by making a winding up order in the particular case;
- it is not necessary for the business of the company to involve illegality;
- where the business of the company does not involve the commission of illegal acts or breaches of regulatory requirements the company may nonetheless be wound up if its business is “inherently objectionable” because its activities are contrary to a clearly identified public interest;
- such conduct is sometimes described as disclosing “a lack of commercial probity”, and whilst this frequently involves preying on the public, it can also involve prejudice to the public generally (for example by casting burdens on the general body of tax payers);
- concepts such as “inherent objectionability” or “want of commercial probity” are bound to have some moral content, though that content is not the subjective moral perception of the individual judge, but must be informed by any discernible policy of the law and guided by the view of other judges in other cases;
- to wind up an active and solvent company is a serious step, and the court must be satisfied that reasons of sufficient weight have been advanced to justify taking that course.
At Francis Wilks and Jones, we have helped companies defend public interest winding up petitions which have been presented against them. We can assist with all stages of the process, from drafting witness statements to preparing for trial. Don’t’ delay – call us now.
FWJ exceeded my expectations by not only avoiding an order for my disqualification as a director but also negotiating a complete withdrawal of the prosecution. This has been such a relief and weight off my mind after many years and I am very grateful to them. I strongly recommend instructing them at the very earliest opportunity. Timely advice, realistic expectations, prioritisation and logical legal presentation were key.
A company director we successfully defended against a director disqualification claim by the Registrar of Companies
