Impact on Director Disqualifications
Where a company has been wound-up on grounds it has been trading contrary to the public interest then almost certainly the director’s conduct will be investigated once the company has been wound-up.
Before a Public Interest Petition is issued Companies Investigation, a department within government, will have conducted comprehensive enquiries into the company’s affairs, its management structure, the business model and who is controlling it.
Director disqualification proceedings are brought to protect the public interest. There is no need for any malicious or fraudulent behaviour on the part of the director, the purpose is to protect the public not punish the director (although this is a consequence).
Please see our webpage here which deals with the reasons for Director Disqualification.
However, where a company has been wound-up in the public interest, it is almost certainly the case that there will be allegations that the appointed director(s) have committed some negligent or deliberate wrongdoing and may be targeted for disqualification.
Shadow/De Facto Directors
Companies House includes a register of the directors who the company state are the appointed directors of the company. These individuals will usually be the ones who are investigated and targeted for disqualification by the Secretary of State.
However, not all directors of a company are listed at Companies House (a register which is required to be maintained by directors) and so other third parties may also be targeted for disqualification on the basis that they are either a Shadow Director or a De Facto Director.
Shadow Directors are defined under Section 251 of both the Insolvency Act 1986 and the Companies Act 2006 have identical definitions of a Shadow director as follows:
“a person in accordance with whose directions or instructions the directors of the company are accustomed to act.”
A Shadow director cannot be someone who provides advice to directors in a professional capacity. However, a Shadow director is often easily identifiable, often being an individual who historically ran the company (and may have since been disqualified or have retired) or, which is more concerning, an individual who is accustomed to ensuring directors do what they are told without ever having any such official title.
De Facto Director
There is no statutory definition of a De Facto director, but this is an interpretation which has evolved through company case law referring to an individual who acts as a director, regardless of their title.
The individual may often attend board meetings, execute key contracts with suppliers and act equally to all other appointed directors. They are often very visible to customers, sign off documents as a director and have key roles in the company’s business. They are a director “of fact”, i.e. in all but name.
Defending a Director Disqualification Claim
Defending a Director Disqualification claim is not straightforward – often the information available is minimal, it requires witnesses to come forward and all of the circumstances referred to happened some time ago.
The added burden of a Public Interest disqualification claim makes this more difficult, because the company has been wound-up in the public interest, but not impossible.
Where a director has not been involved in the alleged wrongdoings, or was misguided by advisors or third parties, this will not always be sufficient to deal with a Disqualification Claim as the claim is brought to protect the public, and thus even individuals who passively allowed such conduct are a threat to the public interest (although their misconduct is a matter for dispute in proceedings).
As an alternative, a director does not have to defend a Director Disqualification claim but can offer a Disqualification Undertaking. However, this presents the risk that they could then become liable for a Compensation Order as a result of the undertaking provided.
At Francis Wilks & Jones we have extensive experience of Director Disqualification matters and are able to advise and assist where you face enquiries into your conduct after a Winding-Up Order has been made, or alternatively where you are facing litigated Director Disqualification proceedings.
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.