Directors and Officers

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

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)

CLAIMS BY/AGAINST COMPANIES AND DIRECTORS

Our experts can advise on:

Disputes between directors, shareholders and partners
Breach of duty/misfeasance claims
Unfair prejudice claims
Derivative actions
Injunctive relief
Breach of warranty claims
Liabilities of shadow directors
Corporate and personal insolvency
Liabilities of directors arising from a corporate insolvency
Directors disqualification proceedings
Professional negligence
Reputation and crisis management/Defamation

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

InvestigATIONS and reputation management advice

In particular:

Internal investigations, including into:
- Suspected criminal or regulatory misconduct of any kind
- Business Crime and Human Rights and Modern Slavery Act compliance
- #MeToo issues
Dawn raids & crisis management including search and seizure of company and residential premises
Police station advice and representation for directors, NEDs, officers and employees
Advice on criminal investigations, both domestic and international, including:
- Financial crime
- Cybercrime
- Cartel investigations and prosecutions
- Sanctions and export controls
- Corporate manslaughter and health and safety offences
- Environmental crime
Advice on criminal liability for corporates and directors
Advice on deferred prosecution agreements
Representation of company or individuals in any prosecution

Employment advice

Contracts including non-executive director (NED) appointment letters
Directors’ indemnities and directors’ and officers’ liability insurance
Personal liabilities including whistleblowing, discrimination and health and safety
Duties and liabilities under the Senior Managers & Certification Regime
Remuneration
Resignations and removals
Termination of employment

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

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

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.