Defending a Disqualification Claim
Directors can be disqualified either by voluntarily offering a Disqualification Undertaking or by way of a Disqualification Order sought by the Secretary of State or Official Receiver.
Legal proceedings are never to be taken on lightly and, where the government (or rather the Secretary of State) is the Claimant then the costs disincentive of taking a case through to trial does not exist.
Our webpage here sets out the main risks of legal proceedings, although it should not be forgotten that there are other risks of accepting a Disqualification Undertaking to avoid legal proceedings, namely that as a result of providing a Disqualification Undertaking you may be liable to pay a much larger sum by way of a Compensation Order.
Process of Claim
A Disqualification Claim does not follow conventional legal proceedings – no Particulars of Claim are served providing details of the legal specifications of the complaint.
The claim exists as a claim form with accompanying evidence (i.e. affidavit evidence provided by a senior civil servant setting out the investigations carried out and the findings as a result of such investigations).
Upon issue of the claim a date will be fixed for a hearing. Once the date has been fixed, the Secretary of State (normally acting through a private firm of solicitors) will serve the Court sealed claim form, witness evidence and exhibits on the director(s).
The Disqualification Proceedings may return to Court to ensure the effective case management of these proceedings, and a number of hearings may be listed as the Court manages the various stages and directs amendments of any deadlines for evidence or otherwise.
Upon receipt or service of the Disqualification Claim papers, the directors have 28 days to prepare, file and serve their own affidavit evidence in answer to the Disqualification Claim. This is effectively their form of defence.
Upon receipt of this defence evidence, the Secretary of State (acting through their solicitors) will be able to reply to the director’s evidence. This will be the last piece of evidence filed in Court in the proceedings (the directors have no further ability to answer this unless the Court deems appropriate).
Following this the Court will then list the case for a trial which will extend for a period dependant on the complexity of the legal arguments and the number of witnesses (and Defendant directors) involved.
Use of Witnesses
A director does not need to just rely on his/her own testimony as a witness in disqualification proceedings. Indeed, it is often the case that a former employee, co-director or accountant prepares their own affidavit evidence in support of the director’s defence.
However, to obtain such evidence a director usually needs to be on good terms with the third party witness, which may not be so easy when they are (for example) a former employee who lost their job as a result of the company’s insolvency.
Equally, the Secretary of State can rely on witnesses of fact, i.e. the testimony of individuals who were there at the time, rather than the Secretary of State’s representative (who comes as a stranger and just reports on the outcome of investigations).
The director’s evidence in answer to the Disqualification Claim has to address the underlying purpose of Director Disqualification proceedings i.e. to protect the public interest.
Therefore, if the director’s evidence can demonstrate that, although the facts alleged did occur, the director was not acting irresponsibly or without due regard to the group at risk, then this may lead the Court either to find that the Director was not guilty of misconduct meriting a finding of unfitness, or that such misconduct was not sufficient to disqualify them.
There is no pattern of how a director’s evidence should be constructed in Director Disqualification proceedings – the situations addressed are varied and the allegations of misconduct often depend on lots of subjective matters – including the director’s personality, whether this is an analysis being done in retrospect and whether the public interest was truly at risk on this occasion.
At Francis Wilks & Jones we have considerable experience of Director Disqualification matters and defending directors in legal proceedings. In a majority of cases where we have represented directors at trial, the defence has been successful.
Please call any member of our Director Disqualification team for a consultation now on 020 7841 0390. Alternatively please email us with your enquiry and we will call you back at a time convenient for you.