Useful advice for directors of public companies from leading Cambridge law firm for the Milner Masterclass program at the St John's Innovation Centre

1. Title goeshere
Subtitle goes here
Name Surname One
Name Surname Two
Growing pains: making sure
you stay legal
Directors – Living up to your responsibilities
27 June 2014
Dona Ardeman

2. Role of Directors
Introduction
o Directors’ general duties
o Directors’ conflicts of interest duties
o Shareholders’ claims for breach of directors’ duties
o How can you protect yourself?
o Other statutory responsibilities
o Credit crunch concerns
o Conclusion

3. Role of directors
Directors’ general duties
Four statutory general duties:
– To act within powers
– To promote the success of the company for
shareholders’ benefit
– To exercise independent judgment
– To exercise reasonable care, skill and diligence

4. Role of Directors
Duty to promote success
Duty to promote success of company – the six factors
 likely consequences of any decision in the long term
 interests of the company’s employees
 need to foster the company’s business relationships with
suppliers, customers and others
 impact of the company’s operations on the community
and the environment
 desirability of maintaining a reputation for high standards
of business conduct, and
 need to act fairly as between members of the company

5. Role of Directors
Duty to promote success
Duty to promote success of company:
– What does “success” mean? For commercial
companies - long term increase in value
– Duty subject to requirement to consider or act in
interests of company’s creditors
– No guidance on resolution of conflicts between
different factors
– Should the company:
o buy the cheaper, environmentally less friendly product from overseas
OR the more expensive, greener option that is produced locally?
o cut costs by reducing manpower locally OR by relocating its call
centre to a deprived region, creating lots of new jobs in that area

6. Role of Directors
Duty to promote success
Recording decisions:
– Greater bureaucracy at board level?
– Not just a box ticking exercise
– Options:
o list consideration of six factors for each decision in board minutes?
o say nothing & rely on supporting board papers?
o take a proportionate approach?
o position to date?
• Director acting in good faith not liable for process
failure if it would not have affected decision

7. Role of Directors
Conflicts of Interest
o CA 2006
– s.175 – duty to avoid situation in which director may
have interest which may conflict with company’s
interests (situational conflicts)
– Uninterested directors can authorise situation
provided Articles do not prevent authorisation

8. Role of Directors
Conflicts of Interest (cont.)
o s.175 CA 2006 – duty to avoid situational conflicts
A Person
commercial
property
company
on board of
management company
rents
Shareholder Director

9. Role of Directors
Conflicts of Interest (cont.)
o CA 2006
– s.175 – duty to avoid situation in which director may have
interest which may conflict with company’s interests
(situational conflicts)
o Uninterested directors can authorise situation provided Articles do not prevent
authorisation
– s.176 – duty not to accept benefits from third parties
– s.177 (and s.182) – duty to declare nature and extent
of interest in proposed (and existing) arrangements
with company

10. Role of Directors
Conflicts of Interest (cont.)
o s.177 (and s.182) – duty to declare interest in proposed (and
existing) arrangements with the company
A Person
property
company
owns
rents
Shareholder Director

11. Role of Directors
Conflicts of Interest (cont.)
o s.180(4) CA 2006
– s.175 – 177 CA 2006 not infringed if directors act in
accordance with provisions of Articles dealing with
conflicts, eg:
o Directors not accountable for benefit derived from authorised situation
o No need to disclose confidential information received in respect of relationship
which has been authorised
o Investor Directors will not infringe s.175 – 177 by virtue of fact they may also
be an employee, trustee, officer, shareholder etc of an Investor or its
investment manager

12. Role of Directors
Shareholders’ claims for breach of director’s
duties
o Derivative actions – used to be for the company to bring
(difficult)
o Unfair prejudice claim

13. Role of Directors
How to protect yourself? – penalties for breach
Directors’ duties – penalties for breach
– Action may be brought by:
o company
o shareholders (derivative claim or unfairly prejudicial conduct action)
o insolvency practitioner
– No codification of remedies for breach of directors’ duties
– Civil penalties - save for failure to declare interest in existing
transaction / arrangement which may be a criminal offence
– CA 2006 says consequences of breach are “ the same as
would apply if the corresponding common law rule or equitable
principle applied” (s178(1))

14. Role of Directors
How to protect yourself? – penalties for breach
Directors’ duties – penalties for breach
– Remedies for breach of fiduciary duties include:
o injunction (to stop an ongoing breach)
o setting aside the transaction
o restitution and account of any profits made or other unjust enrichment
o damages in respect of any loss suffered
o indemnity for costs or expenses incurred
– Remedy for breach of non fiduciary duty (eg duty of care and
skill) = damages

15. Role of Directors
How to protect yourself?
o Indemnity from company
o D&O insurance
o Shareholder ratification
o Proper systems in place

16. Role of Directors
Other issues – other statutory responsibilities
Other statutory responsibilities including:
– Statutory returns
– Preparation and filing of accounts
– Publicity requirements - on company’s business stationary,
website, e-mails and order forms
– PLUS:
o Compliance with other laws eg environmental law, Health & Safety,
employment law, data protection, defamation, libel and providing
misleading information, etc
o Payment of correct amounts of tax, VAT and NI

17. Role of Directors
Credit crunch concerns - directors’ duties when
company in financial difficulty
Directors’ duties when company in financial difficulty
– Whilst solvent, directors’ duties are owed to company for benefit of
present and future shareholders
– When doubt as to solvency arises (or company becomes insolvent)
common law duty (to act in interests of company) and CA 2006
duty (to promote success of company) is redefined
– Directors’ duties are still owed to company but also have to act in
interests of creditors with a view to minimising loss to creditors
from time to time
– Common law, statutory and regulatory duties are relevant
– Breach may lead to personal liability and possible disqualification

18. Role of Directors
Credit crunch concerns – wrongful and fraudulent
trading
Wrongful and fraudulent trading
– Wrongful trading
o applies where company gone into insolvent liquidation, therefore retrospective in application
o civil claim by liquidator in course of winding-up
o personal liability for directors – may be required to make contribution to company’s assets
– Aims to deter directors from continuing to trade where there is no
reasonable prospect of company avoiding insolvent liquidation – any kind of
act or failure to act (unless it minimises losses to creditors) may attract
liability
– Fraudulent trading
o applies in circumstances which amount to carrying on business with intent to defraud creditors
o potential for civil claim by liquidator
o court can order any person concerned to make a contribution to insolvent company’s assets
– Fraudulent trading is also criminal offence

19. Role of Directors
Credit crunch concerns – other issues
Other issues
– Section 212 Insolvency Act 1986 – misfeasance
etc – misapplication of company property eg:
o transactions at undervalue
o granting preferences
– Disqualification of directors

20. Role of Directors
Credit crunch concerns – some practical
considerations
Practical considerations
– Avoid incurring further debts, so far as possible
– Hold regular board meetings to review situation, consider as much
up-to-date financial information as possible and document all
decisions reached at such meetings
– Seek regular advice from insolvency practitioner/company’s lawyers
regarding company’s viability and best way to proceed
– Resigning as director may not be viable option
– Check D&O cover for liabilities relating to insolvency and consider
precautionary notification?

21. Companies Act 2006
Where can you go for help?
Further information is available from:
– Mills & Reeve CA 2006 website page at: http://www.mills-
reeve.com/companies_act_2006.asp
– Mills & Reeve briefings – What you need to know about the
Companies Act 2006
– Mills & Reeve seminars and bespoke training
– Department for Business Innovation and Skills website at
http://www.dti.gov.uk/bbf/co-act-2006/index.html
– Companies House website at http://www.companies-
house.gov.uk/companiesAct/companiesAct.html

22. 98279526.ppt