The disqualification regime applies to all directors.
A director is not precisely defined in legislation but refers to all individuals who hold the position of director by whatever name called (section 250 Companies Act 2006). This includes:
i) De Facto Directors – directors who are held out as directors or perform functions which could only be carried out by a director, but who are not formally recorded as director in the Company’s statutory records and at Companies House;
ii) Shadow Directors – those individuals who whilst not openly acting as a director may instruct the company’s directors in the performance of their duties and the direction of the company. This is defined by Section 251 Companies Act 2006;
iii) Corporate Directors – i.e. companies who sit on the board of directors and are appointed as such;
iv) Directors of corporate directors;
v) Non-executive directors – whose responsibilities in respect of the management and direction of the company, including its financial affairs, are no different to that of appointed De Jure directors;
If shareholders act in any of the above ways it will be extremely difficult to distance themselves from any allegations of unfitness as a director in director disqualification proceedings. As such, all individuals involved in the management of a company must be aware of what their role is and whether it is conduct that could only be performed by a director.
The general rule is that non-executive directors who fail to take part in the management of the affairs of the company can also be disqualified for unfitness. A non-executive director, as any other conventional director (see our comments above), can be disqualified for incompetence or any other finding of unfitness.
As a rule of thumb, non-executive directors in larger organisations are likely to be at less risk than those attached to smaller organisations. In larger organisations, non-executive directors are invited to attend board meetings and receive regular (and often better prepared) management information. However, there is still a duty on the non-executive director to ensure that the information before him at a board meeting is accurate and that directors act properly in determining how to deal with any issues which may give cause for concern.
Andyfwj
Partner at Francis Wilks and Jones
Andy Wilks is the head of commercial litigation at Francis Wilks & Jones LLP.
Andy completed his articles at Davies Arnold Cooper solicitors and then joined niche receivables finance firm, Wildes. Before setting up Francis Wilks and Jones LLP, he also spent a year at city firm, Hammond Suddards Edge.
Andy’s range of expertise includes the following:
Undertaking many thousands of debt recovery cases for clients, from lower value claims to high value complex contractual disputes.
Undertaking high value fraud cases on behalf of clients, often requiring the need for urgent injunctive relief at court and the obtaining of relevant freeing orders and ancillary disclosure orders. Andy is currently running a $20m claim for an invoice finance and trade finance client involving allegations of fraud.
Conducting all manner of director disqualification claims, both pre and post issue. Andy is one of the country’s leading lawyers in this specialist area and has built up a highly specialised director disqualification team at FWJ over the last decade.
Undertaking numerous types of insolvency litigation claims, including preference claims both for and against directors and advising directors generally on their fiduciary duties.