What are directors’ duties and what happens if they are breached?

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    What are the duties of a company director and what happens if they are breached?

    Company directors have a number of duties imposed on them under the Companies Act 2006 as well as under common and other laws. Failure to carry out directors’ duties can result in substantial penalties, including personal liability for any losses suffered by the company, its shareholders and its creditors.

    The main directors’ duties are those detailed in the Companies Act 2006 (the Act), although there is substantial additional legislation in other areas, such as insolvency and health and safety, which must also be observed. This article will focus on the obligations included the Act.

    Directors’ duties included in the Companies Act 2006

    Directors must act within their powers

    While directors are given a certain amount of discretion to run the company as they see fit, they cannot act outside of the powers conferred on them by the company’s constitution, primarily its articles of association.

    When exercising the powers given to them, they should act in the interests of the company and not in their own interests. For example, allocating too many shares to an individual with views sympathetic to the director may not be in the company’s best interests.

    In addition, they may not exceed the limits of the powers and authority given to them.

    Directors must promote the success of the company

    In making decisions relating to the company, directors should consider whether their actions will promote the company’s success and benefit any shareholders and other stakeholders in the company.

    The Act lists six factors that directors must have regard to in reaching decisions which include consideration of employee interests, the long-term consequences of their proposed actions and fostering business relationships with suppliers and customers.

    However, where a company’s solvency is in doubt, the directors must consider the interests of the company’s creditors instead of the company itself.

    Andrew Hook, Director at Begbies Traynor, provides practical advice to directors when their companies are facing insolvency and the treatment of creditors.

    ‘Running a business is particularly challenging at the moment given Covid-19 and the impact this is having on cash flow.

    The Government have restricted creditors’ ability to wind companies up as a result of emergency legislation which may make it easier to carry on trading without appreciating the significant personal risks for the directors. For example, directors may become personally liable for continuing the trade if there was no reasonable prospect of avoiding insolvency (known as wrongful trading).

    In addition, directors should treat all creditors equally and not prefer one creditor ahead of another. If companies have used Government support schemes such as the Bounce Back Loan then the funds must be used for legitimate purposes rather than using the money to satisfy personally guaranteed debts.

    If directors have concerns about the company’s ability to satisfy creditors as they fall due then they should seek independent advice from a licensed insolvency practitioner, solicitor or accountant. Professional advice at an early stage can protect the directors’ personal position and give the company a greater chance of survival.’

    Directors must exercise independent judgement

    A director is required to make any decisions independently and not to favour any single shareholder or section of a business, for example, if a business merges and directors are appointed from both former enterprises.

    In addition, a director cannot give away their decision-making power to another unless they retain the power to revoke this.

    Directors must exercise reasonable care, skill and diligence

    There are two parts to this duty. Firstly, a director should exercise the care, skill and diligence that would be expected from someone doing the job to a professional standard.

    Secondly, they must act in accordance with the knowledge, skill and expertise that they themselves possess. This means that if a director has in-depth experience in a particular area, they will be expected to use it to the benefit of the company.

    Directors must avoid conflicts of interest

    A director must not only avoid direct and indirect conflicts of interest, but also possible conflicts of interest. This could include awarding a contract to a friend or family member or using company information to benefit their own personal affairs.

    A recent media article was published stating a public relations firm whose managing partner previously advised ministers on Covid-19, was providing consultancy for a testing company signed up by government.

    Lord Feldman’s PR firm began advising Oxford Nanopore after it struck a £28m deal with the Department of Health. He insists he had no involvement in the award of the contract.’

    Exceptions exist where the conflict cannot reasonably be regarded as likely to give rise to a conflict of interest and also where the situation has been authorised by the board of directors (excluding the director concerned), provided the company’s articles of association permit such authorisation.

    Directors must not accept benefits from third parties

    A director may not accept a benefit from a third party where it was offered because of the director’s position in the company or because of any actions they have the power to take as a director.

    In practice, this means that a director should not accept a gift or an invitation to a hospitality event from someone who has a contract that may be offered to the company.

    If it can be shown that no reasonable person would see a conflict of interest in accepting the benefit, it is acceptable, however, it is not always a clear-cut decision and care should be taken before accepting any benefit.

    Directors must declare any interest in a proposed transaction or arrangement with the company

    If a director has a personal interest in a transaction, he must disclose this at a board meeting or in writing to each director before the relevant contract is entered into.

    This could include making a deal to buy supplies from a business owned by a relative or a transaction with another company in which the director has a shareholding.

    Consequences of breach of directors’ duties

    If one of the above directors’ duties is breached, action can be taken against the director by the company or by a shareholder if they have suffered loss. This can be by way of court action or in some instances by way of an agreement with the director.

    Consequences for the director include the following:

    Removal from office

    A director can be removed from office in the event that more than half of the shareholders vote for this. Removal can be permanent or temporary, depending on the severity of the breach in the view of the shareholders.

    Return of company property

    Where property has been inappropriately transferred or taken by a director, its return can be required.

    Restitution of profits

    Where a company has suffered a loss because of the director’s actions, the court can order that any personal profits made by the director in the transaction that breached his duty to be returned to the company.

    The setting aside of a transaction

    The court may make an order setting aside a transaction or contract so that the situation is as though it had never been made.

    An interim injunction

    An injunction can be issued to prevent the director from continuing with the breach of their duty and to prevent further losses.

    Damages or compensation

    Where a director’s breach of duty has resulted in financial loss, a court can order payment of damages and/or compensation from the director personally. This means that a breach of directors’ duties can expose a director to personal liability and the possibility of losing personal assets, to include their home, as well as a risk of bankruptcy.

    A fine under criminal law

    Some breaches are considered so serious that they have been criminalised. An example is the requirement to keep and file the required company registers and accounts.

    Advice for company directors

    Staying within the law as laid out in the Act is not always straightforward and it is sometimes the case that directors’ duties are breached inadvertently. If you have any doubts as to the legality of a proposed transaction, you should seek legal advice before entering into it.

    Get in touch with us

    We have wide-ranging experience in directors’ duties and disqualification, and were named as the ‘Commercial Disputes Specialists of the Year” in the Corporate Livewire Innovation & Excellence Awards 2020 as well as ‘Boutique Litigation Law Firm of the Year’ in both the 2019 and 2020 Global Awards by ACQ5

    If you would like to talk to one of our expert legal team about any queries you may have regarding directors’ duties or what to do when they are breached, contact the author, Dipesh Dosani, or call the team today on 020 3968 6030 and we’ll be happy to help.

    The above information is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a legal advisor.

      Dipesh Dosani Partner
      Dipesh advises clients on a wide range of commercial disputes including breach of contract, directors’ disputes, shareholder remedies, partnership issues, professional negligence and intellectual property. He is also able to provide clients with advice on all aspects of insolvency as well as investigations including misfeasance, undervalue transactions, preferences, transactions to defraud creditors and wrongful trading.

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        2020-12-02T18:20:58+00:00
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