DIRECTOR LIABILITY
DISQUALIFICATION PROCEEDINGS
4.34 Even if liability for wrongful or fraudulent trading cannot be made out, or the liquidator chooses not to bring an action, the court will make a disqualification order against any director of an insolvent company whose conduct as a director of that company is shown to make them unfit to be concerned in the management of any other company.16
4.35 The Insolvency Service is in charge of investigating a director’s conduct, and if necessary, seeking a disqualification order. It will also accept a voluntary
“disqualification undertaking”, which has the same effect but does not involve court proceedings.
4.36 There is no definitive list of actions which will constitute unfitness; rather, the court is to have regard to the entirety of the director’s conduct, even if it does not fall within the wrongful trading provision, or any other provision, of the Insolvency Act 1986.17 Trading while insolvent, or in the knowledge that insolvency is likely, is one ground for disqualification, though the decision will be taken in the round and also consider other factors. The court will not look narrowly at the test for wrongful trading.18
16 Company Directors Disqualification Act 1986, s 6.
17 Mithani (ed), Directors’ Disqualification (February 2015) p 656; Re Bath Glass Ltd [1988]
BCLC 329, 333.
18 Secretary of State for Trade and Industry v Creegan [2001] EWCA Civ 1742, [2004] BCC 835.
4.37 Between January 2011 and February 2015, 4,419 directors were disqualified.
However, only a tiny proportion of these cases (18, or 0.4%) were primarily concerned with allegations of trading with knowledge of insolvency (and even here the cases do not appear to be about consumer prepayments).19 Of the 18 cases, 16 directors gave voluntary disqualification undertakings. The court made disqualification orders against the remaining two in their absence.
4.38 It is clearly rare for the courts to find against directors on the grounds that they knowingly traded while insolvent, though this may be an aggravating feature in other allegations of misconduct. As we see below, the courts tend to be sympathetic to directors who tried hard to save their companies, even if they were ultimately unsuccessful.
4.39 At present, disqualification proceedings do not result in compensation to consumers. However, this may change. Section 110 of the Small Business, Enterprise and Employment Act 2015 allows the Secretary of State to pursue disqualified directors for compensation orders for the benefit of specific creditors or classes of creditors, or as a general contribution to the assets of the company.20
Case law
4.40 Disqualification proceedings were brought against the directors of World of Leather and Farepak. The former were unsuccessful and the latter were abandoned.
World of Leather and Uno
4.41 The Secretary of State brought disqualification proceedings against five directors of the now defunct furniture retailers World of Leather and Uno (its parent company).21
4.42 These companies had relied heavily on consumer deposits as a source of working capital and from November 1999 to March 2000 faced acute financial difficulties. During this period, deposits increased from £2.1 million to £2.4 million and Uno accepted 100% deposits. On the advice of lawyers and accountants, the directors did not ring-fence or otherwise segregate this money as it came in:
doing so would have caused the company to enter administration immediately.
Instead, the deposits became part of the company’s general assets.
4.43 The directors attempted to find a “corporate solution” but were ultimately unsuccessful. In March 2000, the company entered administration, resulting in customers losing deposits and not receiving the goods ordered.
19 We are grateful to the Insolvency Service for providing these figures.
20 Small Business, Enterprise and Employment Act, s 110, providing for a new section 15A in the Company Directors Disqualification Act 1986. At the time of writing, the Act had received royal assent but was not yet in force.
21 Re Uno plc & World of Leather plc [2004] EWHC 933, [2006] BCC 725. Two other directors had given voluntary disqualification undertakings.
4.44 The court dismissed the Secretary of State’s disqualification proceedings and found that the directors had, at all material times, reasonable grounds for believing that insolvent liquidation could be avoided. The defendants’ conduct in accepting the payment of deposits in order to continue searching for a corporate solution had not crossed the threshold of unfitness.
4.45 The court found that the directors had tried hard to find a solution, including considering a possible management buy-out or a sale to one of the company’s suppliers. They had also taken advice from lawyers and accountants, kept their main creditors and suppliers informed and reviewed the situation regularly.
4.46 Mr Justice Blackburne noted that, had a solution been found, a “satisfactory outcome for all the group’s creditors, including not least its cash-paying customers” would have been made possible by continued trading.22 He found that the directors had “gone out of their way to pursue a solution” and concluded: 23
In my judgment, and notwithstanding the understandable anger of the cash-paying customers, it would be an injustice to brand the defendants’ conduct over this period as meriting disqualification.
Farepak
4.47 At the time of its collapse, Farepak owed consumers some £37 million. Clearly, these deposits had built up over the year. If administrators had been appointed earlier, consumers would have lost less.
4.48 Again, the Secretary of State sought disqualification orders against the directors of Farepak.24 The Secretary of State was unable to present a positive case that liquidation was inevitable prior to October 2006 when administrators were appointed. Instead, his central contention was that the directors had done “too little, too late”. He argued that they should have pursued the various solutions in parallel and that their actions in attempting to achieve a solvent solution were so unacceptable that they were unfit to be directors.
4.49 However, on legal advice and in the public interest, the decision was later taken to discontinue these proceedings. The judge, Mr Justice Peter Smith, recognised that those who had lost their Christmas savings had directed their frustrations at the directors and would be angry that the directors had not been held accountable. He therefore, unusually, issued a statement in open court to explain the position:25
I felt strongly in this case that all the depositors would have been left with a sense of being cheated again if they did not understand why the case has collapsed against the people who have been pursued for the last five years as being the evil people who caused their losses.
22 Above at [157].
23 Above at [165].
24 Secretary of State v Fowler and others (2012). As the proceedings were abandoned, this case was not reported.
25 Available online at https://www.judiciary.gov.uk/judgments/farepak-judges-statement.
4.50 The judge noted that the directors had “received a huge amount of criticism over their conduct”, with savers believing that “the directors were responsible for their losses”.26 He thought these criticisms were misguided. Instead, he found that the directors had made “genuine strenuous efforts” to save the group. Additionally, the directors had asked the bank on at least two occasions whether Farepak could protect future deposits (by holding them on trust) or stop taking deposits altogether. Both these proposals were refused by the bank, meaning the directors
“were in effect obliged to continue to receive the deposits and pay them over for the bank”.27
4.51 Although the judge did not criticise the directors, he commented that HBOS, the group’s bank, had “a policy of playing hardball”. HBOS had “substantially benefited” from deposits that were received in the two months preceding the group entering administration; indeed, it was perhaps the “sole beneficiary” of the consumers’ payments. The judge found that HBOS was aware that deposits accepted during these last two months were “overwhelmingly likely” to be lost. In the end, HBOS received full recovery of the indebtedness owed to it, £10 million of which was attributed to the continued taking of deposits.28
4.52 The judge noted that HBOS had acted lawfully: it was perfectly entitled to enforce its security. However, both he and (subsequently) the Secretary of State urged HBOS to make a further contribution to the distress fund for Farepak customers beyond the £2 million it had already pledged. Lloyds Banking Group, which acquired HBOS in 2009, proceeded to contribute an additional £8 million. It also met its own legal fees, allowing a further £1 million to be distributed to the unsecured creditors.
4.53 Despite the judge’s comments exculpating the directors, Deborah Harvey, co-founder of the Farepak Victims’ Committee was reported as stating: 29
But I am still angry that directors who were behind the company have got away scot free.
And of the £8.2 million in fees drawn by the administrator:30
The directors/owners of EHR31/Farepak should be paying for that. We have had our cash taken, they messed the business up and to add insult to injury we have to pay to sort their mess out. How the hell can that be right?
26 Above, para 19.
27 Above, para 26.
28 See, for example, para 22 of the judge’s statement.
29 http://www.mirror.co.uk/money/personal-finance/farepak-customers-in-8m-payout-from-lloyds-1135426.
30 http://www.theguardian.com/money/2012/jul/06/farepak-victims-get-compensation.
31 European Home Retail (EHR) was Farepak’s parent company.
4.54 We do not think that it is helpful to blame the directors personally. However, the Farepak debacle points to weaknesses in the law. The first problem is that, as we explained in Chapter 1, savings schemes are not regulated if they promise vouchers rather than cash repayments. We consider this in Chapter 11. The second problem is that under the current insolvency regime floating charge holders benefit directly from any increased consumer deposits in the lead up to insolvency. We return to this in Chapter 12.
Other cases
4.55 Further case law on directors’ liability for accepting consumer prepayments prior to insolvency is rare and cases are generally unreported. However, we are aware of two cases involving lost deposits where directors gave voluntary disqualification undertakings (which have the same effect as a disqualification order but do not involve the court).
4.56 The Insolvency Service announced on its website that two directors of Chevron Lifts Ltd, a lift engineering firm in Northampton, were disqualified for seven years for “accepting a deposit [of £11,471] when they ought to have known there were no reasonable grounds for believing they would be able to provide the goods”.32 However, it should be noted that:
there were many other elements which may have characterised the directors’ unfitness in this case, such as entering into transactions for their own benefit.
4.57 The Insolvency Service also announced a five-year disqualification of the two directors of Manor Furniture (Swindon) Ltd for:33
putting customers’ funds at unreasonable risk by accepting deposits when they ought to have known there were no reasonable grounds for believing they would be able to provide the goods.
4.58 The first director had taken £59,735 in the last months of trading, and the second director £40,614. Both directors in this case gave disqualification undertakings.
Conclusion
4.59 Directors have every reason to try to avoid insolvency: it is human nature that they may continue their efforts to save their companies for too long. Similarly, creditors who are about to lose money will tend to focus narrowly on getting “their money” back, often at the expense of other creditors. We do not think that it is helpful to place blame on individuals who act in this way.
4.60 However, we do think there is a case for looking hard at a system of legal rules which allows floating charge holders to benefit from additional deposits taken from consumers at a time when those “in the know” realise that contracts may not be fulfilled. In Chapter 12, we examine how this issue may be addressed.
32 https://www.gov.uk/government/news/lift-installers-get-7-year-bans-for-accepting-customer-deposits-when-company-was-insolvent.
33 https://www.gov.uk/government/news/furniture-retailers-get-5-year-bans-for-accepting-deposits-and-failing-to-deliver-goods.