Directors and Officers

Our experts provide specialist legal advice to directors and officers in times of crisis or when other issues arise.

Find out how we can help

An increased focus on governance and individual accountability has led to directors and officers coming under greater scrutiny than ever before. As a result, the number of claims against directors has increased, as has the need for directors to take specialist advice on their duties and on specific compliance issues.

 

Strength and depth of our experience

We have an experienced team of lawyers who specialise in advising directors and officers at every stage of a company’s life, from issues arising on incorporation, directors’ duties and governance/compliance, through to employment and regulatory proceedings, shareholder disputes, reputation and crisis management and claims arising from insolvency events. We also have expertise  advising individuals assigned specialist roles such as Head of Internal Audit, SIDs, NEDs, MLROs.

Investigations and regulatory enforcement against directors and officers

Our experience of dealing with regulatory and criminal investigations in particular means that we are able to advise directors and officers in dealing with investigations by the regulators or other agencies including the Serious Fraud Office (SFO), HM Revenue and Customs (HMRC), the Health and Safety Executive (HSE), National Crime Agency (NCA), Financial Conduct Authority (FCA), Financial Reporting Council (FRC), The Institute of Chartered Accountants in England and Wales (ICAEW) and the Association of Chartered Certified Accountants (ACCA).

We also regularly advise on the Senior Managers and Certification Regime (SMCR), on immigration enforcement action, on data protection issues including ICO/GDPR enforcement, on cyber crime issues and on directors’ disqualification proceedings.

More specific examples of the advice we provide and recent work are set out below.

directors' duties and governance

  • Directors' duties
  • Conflict issues
  • Issues regarding powers/authority/execution of document
  • Policy documentation, including regarding anti-bribery and corruption, and anti-money laundering

Read more about our corporate and commercial services.

 

COMPLIANCE & REGULATORY ENFORCEMENT

Recent work:

  • Advising directors of their responsibilities under the Senior Managers and Certification regime
  • Representing directors in prosecutions for Health and Safety offences under the Health and Safety at Work etc. Act 1974
  • Representing directors in prosecutions for licensing offences under the Licensing Act 2003
  • Advising a board of directors on their responsibilities to safeguard children and vulnerable people on its premises
  • Advising directors on their responsibilities to make provision for disabled persons under the Equality Act 2010 (and associated legislation)
  • Representing a director in a criminal prosecution for fire safety offences under the Regulatory Reform (Fire Safety) Order 2005
  • Advising directors on general fire precautions, maintenance, risk assessments and fire safety strategy.
  • Advising (doctor) directors of start-up health and well being clinics on their regulatory responsibilities
  • Representing  (ACCA and ICAEW member) directors on regulatory issues surrounding governance and regulatory compliance
  • Advising (solicitor) directors on their regulatory and compliance obligations to the Solicitors Regulation Authority (SRA)
  • Advising (surveyor) directors on their regulatory and compliance obligations to the Royal Institute of Chartered Surveyors (RICS)

Read more about our regulatory services

 

CLAIMS BY/AGAINST COMPANIES AND DIRECTORS

Our experts can advise on:

We have experience and expertise in acting for both claimants and defendants in these types of claims.

Recent work:

  • Acting for shareholder/directors bringing and defending unfair prejudice petitions
  • Advising on an injunction to prevent parties from taking over the Board
  • Advising on a claim brought by a purported shareholder for rectification of the Register of Members
  • Advising director/shareholders on the sale, or purchase, of shares/the business to/from fellow director/shareholders
  • Bringing and defending claims against directors for breaches of duty e.g. diverting contracts to other companies, using company monies for their own purpose, causing the company to enter into contracts with connected parties, receiving commission from connected companies
  • Advising directors in respect of their purchase of a company from the liquidators

Read more about our dispute resolution services.

 

InvestigATIONS and reputation management advice

In particular:

Read more about our criminal litigation services.

 

Employment advice

Read more about our employment services

 

Immigration issues

  • Immigration (Home Office) enforcement advice
  • Advising on key criteria in order to become an Authorising Officer for a Tier 2 employer sponsor licence and on-going responsibilities for Authorising Officers
  • Advising on how to maintain an A rated sponsor licence along with on-going Tier 2 sponsor compliance
  • Carrying out compliance audits as part of a due diligence process
  • Advising on key obligations from an immigration perspective where a merger, de-merger, TUPE or change in corporate structure is concerned

Recent work:

  • Advising on an acquisition worth 5 billion Euros that involves the creation of a wholly owned subsidiary in the UK, to include advising one of the newly appointment Directors on his duties as the Authorising Officer for the purposes of a Tier 2 sponsor licence application. Further, to include working with the Authorising Officer to submit the application to the Home Office and advising on on-going compliance matters
  • Advising on a TUPE transfer following an asset sale that involved Tier 2 non EU national sponsored employees

Read more about our immigration services.

 

data protection and representation at inquiries, inquests and select committees

  • Compliance with data protection law
  • ICO enforcement action in relation to data protection and GDPR breaches
  • Appearing at inquests, public inquiries and select committees

Read more about our data protection services and Public Law services

 

Modern slavery, business and human rights

  • Internal investigations on behalf of corporate clients, including advice to companies caught up in criminal and regulatory investigations
  • Acting in judicial review litigation, involving a broad range of human rights issues including Human Rights Act damages claims
  • Advising on compliance with Modern Slavery legislation, best practice and emerging norms
  • Advice on slavery and human trafficking statements

Read more about our Business and Human  Rights services

 

Divorce and Family issues

Recent work:

  • Acting for directors/shareholders in financial proceedings upon divorce
  • Acting for the spouses of directors/shareholders in financial proceedings upon divorce
  • Representing in divorce proceedings a wife who jointly owned a company with her husband
  • Advising a director/shareholder husband in respect of a postnuptial agreement that dealt with the company that he jointly owned with his wife
  • Advising director/shareholders who intend to get married, or their partners, in respect of prenuptial agreements.

Read more about our Family and Divorce services

 

Complex and stressful situations

We recognise that when you are a company director or officer, taking legal advice in some situations may be personally difficult and stressful. Our specialist team is highly experienced in helping guide you through complex and high pressure situations, particularly where reputation management issues arise in high profile disputes. We also work with specialist D&O insurers who provide cover in a wide range of circumstances.

Further information for directors and officers

If you would like more information or require advice in relation to any of the above areas, please contact a member of our team.

Latest blogs & news

BEIS White Paper on Audit Reform: Will Kwarteng's reforms really unchain entrepreneurs?

In 2012, as a recently elected MP, Kwasi Kwarteng co-authored “Britannia Unchained: Global Lessons for Growth and Properity”, a political pamphlet which championed risk-taking and innovation in the UK economy, and which ever since has led some to label him a fervent Brexiteer. Appointed as the Business Secretary in January 2021, only a few months later his department (BEIS) published one of the longest and most ambitious government White Papers in recent years.

Is a personality clash in the Boardroom a fair reason for dismissal?

A recent case has highlighted a trend that that we have seen over recent years, with Employment Tribunals finding that the dismissal of a senior executive can be fair where there has been a breakdown in relations amongst a management team and one director / executive is considered to be more at fault (Moore v Phoenix Product Development Ltd EAT/0070/20).  Also, the procedural requirements for such dismissals may be more limited, in this case, the fact that no right of appeal was offered did not render the dismissal unfair.

Ignorance is bliss? Not for directors!

In the recent case of TMG Brokers Ltd (In Liquidation) (also known as: Baker v Staines) the High Court held a director of a company to be jointly and severally liable for payments made by his co-director out of the company’s bank account which were made without proper authority and amounted to  disguised distributions of capital. The fact that he had placed trust in the other director for the company's financial affairs did not excuse him from performing his duties.

FCA Moves to Deregulate SPACs

Following the release of the Hill Report at the start of last month, the FCA has announced that it is going to open a consultation into changing the Listing Rules and connected guidance with a view to encouraging the listing of Special Purpose Acquisition Vehicles (SPACs).

ICSA’s Report on Board Evaluations – A Brief Summary

Following a request by the Department of Business, Energy and Industrial Strategy (“BEIS”) ICSA has prepared a report assessing the effectiveness of the independent board evaluation process introduced in the 2018 update of the UK Corporate Governance Code (the “UK Code”).  

One hand in the cookie jar: Fraud and directors’ duties in insolvency

What happens when a director commits fraud by misappropriating company assets?  Or what of the director who continues trading knowing that the company has no realistic prospect of paying its debts as and when they fall due? To whom does a director owe duties at that point and what recourse is there against that director? This article explores these questions.

Money, money, money: what are directors’ duties in respect of the company’s bank account?

Disputes between directors often arise because of, and/or result in, disputes about company money. Directors need to be alert to how they are required to act, particularly in times of conflict.

Can a De Facto Director be disqualified as a Director?

It is well known that directors owe duties to the company of which they are a director and, in certain circumstances, its shareholders, creditors and employees. Many people believe that if you have not been formally appointed as a director, i.e. you do not appear on Companies House records as a director, you will not owe the usual directors’ duties and, therefore, cannot be in breach of such duties or subject to sanctions for breach.

Fit and proper person requirements for directors in the health and care sector – what does this mean and what are service providers required to do?

All providers registered with the Care Quality Commission (“CQC) must assure themselves that all directors who are responsible for delivering care to service users are fit and proper – in other words, they must be able to diligently carry out their responsibility to ensure the quality and safety of care. This forms part of the providers’ duty to ensure the service is well-led, which is one of the focus points during an inspection. Not only does the CQC monitor compliance at the point of registration, but it is an on-going duty and can lead to enforcement action where it is not met.

Directors’ communications with their solicitors: perhaps not as privileged as you think (Part 2)

In the recent case of Barrowfen Properties Ltd v (1) Girish Dahyabhai Patel (2) Stevens & Bolton LLP (3) Barrowfen Properties II [2020] EWHC 2536 (Ch), the High Court extended the iniquity exception to breaches of a director’s statutory duties.

Insolvency Practitioners: the regulator’s reach is wide when it comes to integrity

It goes without saying that Insolvency Practitioners must behave honestly and with integrity in all their professional dealings.  IPs must handle money and assets in a way which justifies the trust placed in them, but some professionals don’t realise that the way they behave on a Saturday night may be just as relevant to their ability to continue in their chosen profession as the way they behave on a Monday morning.   

Coronavirus business loan scheme fraud

In response to the coronavirus (“COVID-19”) pandemic, the government introduced a number of loan schemes in order to assist businesses struggling financially.  Recent reports suggest that these schemes, as outlined below, have become a target for fraudulent loan applications, by both genuine businesses and also organised criminal enterprises.  This blog briefly examines the various loan schemes in place and the criminal offences which are likely to be the focus of investigating authorities in the coming months.

The driving force fallacy

Court of Appeal overturns injunction in favour of son who sought to restrain his family from participating in the management of their caravan park business - Loveridge –v- Loveridge [2020] EWCA Civ 1104.

Directors disqualified following history of health and safety and waste law breaches

Brother and sister Mark and Rachel Penfold were directors of a waste management company. In February 2016 an employee of the business suffered a serious injury when his arm was caught in a conveyer he was operating whilst at work. The Health and Safety Executive prosecuted the company and both individuals under the Provision and Use of Work Equipment Regulations 1998 (PUWER). 

Director of an insolvent company? Know your exposure…

We live in uncertain and financially very troubling times.  The coronavirus pandemic and the unprecedented measures put in place to tackle it have caused severe disruption to businesses.  Big names such as Harveys, TM Lewin, Intu and the owners of Café Rouge and Bella Italia all went into administration at the beginning of the month.  They will not be the last.

Stretching the limits of Directors’ personal liability for torts?

It is a sad reality that the Covid-19 Pandemic is likely to lead to a spike in the number of companies being put into insolvency.  This has the potential to leave parties with claims against those companies with a reduced prospect of full recovery, even if their claims are strong.  As a result, claimants may look for alternative targets, including ways in which they could sue directors personally. 

Company Succession Planning: Death of a sole director – now what?

Company succession planning is critical to ensure that a company can continue to run in the unfortunate event that a director (or shareholder) dies. If there are other surviving directors, they are able to step in and run the company, but what happens when a sole company director dies?

The impact of the coronavirus crisis on business valuations in divorce settlements

The impact of COVID-19 is being felt in many different ways.  For those going through a separation or divorce, the pandemic has added a layer of uncertainty and stress to an already difficult process. This is particularly so for those who own a business (or whose spouse does), where the value of their business may have been affected and they are concerned with the impact on a financial settlement. In this blog, we look at the complexities of valuing businesses in divorce proceedings at this unprecedented time and provide some practical considerations.

Liquidation and Fiduciary Duties: No Rest for (the Wicked?) Directors

In Hunt (as Liquidator of System Building Services Group Ltd) v Michie & Ors [2020] EWHC 54 (Ch), ICC Judge Barber has confirmed that directors of insolvent companies remain subject to fiduciary duties, even after those companies enter into an insolvency procedure.

Compensation orders against company directors: a new way around Limited Liability?

The case of the Secretary of State for Business, Energy and Industrial Strategy v Kevin William Eagling [2019] EWHC 2806 (Ch) was the first brought by the Secretary of State under a regime in the Company Directors Disqualification Act 1986 providing for compensation orders. The court found in favour of the Secretary of State and made its first ever compensation order under the regime requiring a company director to provide compensation.

Directors and Officers Insights

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Blogs

BEIS White Paper on Audit Reform: Will Kwarteng's reforms really unchain entrepreneurs?

Is a personality clash in the Boardroom a fair reason for dismissal?

Ignorance is bliss? Not for directors!

As Lockdown Ends – Updated Guidance on General Meetings During Covid

One hand in the cookie jar: Fraud and directors’ duties in insolvency

Money, money, money: what are directors’ duties in respect of the company’s bank account?

Can a De Facto Director be disqualified as a Director?

Fit and proper person requirements for directors in the health and care sector – what does this mean and what are service providers required to do?

Directors’ communications with their solicitors: perhaps not as privileged as you think (Part 2)

Insolvency Practitioners: the regulator’s reach is wide when it comes to integrity

Insolvency and furlough fraud – directors beware!

The driving force fallacy

Directors disqualified following history of health and safety and waste law breaches

Director of an insolvent company? Know your exposure…

Stretching the limits of Directors’ personal liability for torts?

Company Succession Planning: Death of a sole director – now what?

Liquidation and Fiduciary Duties: No Rest for (the Wicked?) Directors

Insolvency Service investigations into trading companies

Compensation orders against company directors: a new way around Limited Liability?

Lurking in the shadows - When is a "director" a director?

What is required to prove contempt of court?

Cutting a long story short: Reform of witness evidence in the Business & Property Courts

Immigration related risks in a “compliant environment"

Death of a sole director and shareholder

Post-Brexit immigration rules – not so bad for the finance sector?

A change of direction in director disqualification for breaches of competition law?

UK's Senior Managers And Certification Regime - All Change On 9 December?

Getting a senior job with a boutique firm in London is about to become complicated

No man is an island, but being a sole director might come close

The role of a Financial Director – a life in the spotlight

Unfair prejudice petitions: can a director’s breach of duty bar their claim?

What have we learned from the Senior Managers and Certification Regime?

‘World-leading’ Modern Slavery Act 2015: review confirms more to be done

Identity Fraud: company directors at double the risk of other individuals

Health and Safety Sentencing – Three years on and now for the bad news…

Tackling fraud: more must be done

Real Estate Directorship may carry a real risk

Accountant’s participation in a charity tax avoidance scheme leads to a 10 year ban by the Financial Reporting Council

Tough action against solicitor who laundered proceeds of bogus investment scheme

Three companies convicted of corporate manslaughter in a week

Dutch businessman sentenced to 19 years for arms trafficking and war crimes

Companies and directors of larger companies face criminal prosecution and unlimited fines for non or misreporting of payment practices

Directors of a solvent company are under no duty to prioritise the interests of potential creditors when entering transactions, even where there is a recognised risk of insolvency

Senior Managers Regime – the FCA predicts more enforcement litigation in the new regime

How the government took the fight to corporate criminals in 2016

Corporate corruption: Smith & Ouzman ordered to pay £2.2m

A director must exercise his/her powers only for a proper purpose

Legal update: Former director liable for copyright infringement and breach of director’s duties despite delay in bringing claim

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