Company Directors Disqualification Act 1986

Preliminary

1 Disqualification orders: general

(1) In the circumstances specified below in this Act a court may, and under section 6 shall, make against a person a disqualification order, that is to say an order that he shall not, without leave of the court—

(a) be a director of a company, or

(b) be a liquidator or administrator of a company, or

(c) be a receiver or manager of a company's property, or

(d) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company, for a specified period beginning with the date of the order.

(2) In each section of this Act which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order there is specified the maximum (and, in section 6, the minimum) period of disqualification which may or (as the case may be) must be imposed by means of the order.

(3) Where a disqualification order is made against a person who is already subject to such an order, the periods specified in those orders shall run concurrently.

(4) A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters.

Disqualification for general misconduct in connection with companies

2 Disqualification on conviction of indictable offence

(1) The court may make a disqualification order against a person where he is convicted of an indictable offence (whether on indictment or summarily) in connection with the promotion, formation, management or liquidation of a company, or with the receivership or management of a company's property.

(2) " The court" for this purpose means—

(a) any court having jurisdiction to wind up the company in relation to which the offence was committed, or

(b) the court by or before which the person is convicted of the offence, or

(c) in the case of a summary conviction in England and Wales, any other magistrates' court acting for the same petty sessions area;

and for the purposes of this section the definition of " indictable offence" in Schedule 1 to the [1978 c. 30.] Interpretation Act 1978 applies for Scotland as it does for England and Wales.

(3) The maximum period of disqualification under this section is—

(a) where the disqualification order is made by a court of summary jurisdiction, 5 years, and

(b) in any other case, 15 years.

3 Disqualification for persistent breaches of companies legislation

(1) The court may make a disqualification order against a person where it appears to it that he has been persistently in default in relation to provisions of the companies legislation requiring any return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the registrar of companies.

(2) On an application to the court for an order to be made under this section, the fact that a person has been persistently in default in relation to such provisions as are mentioned above may (without prejudice to its proof in any other manner) be conclusively proved by showing that in the 5 years ending with the date of the application he has been adjudged guilty (whether or not on the same occasion) of three or more defaults in relation to those provisions.

(3) A person is to be treated under subsection (2) as being adjudged guilty of a default in relation to any provision of that legislation if—

(a) he is convicted (whether on indictment or summarily) of an offence consisting in a contravention of or failure to comply with that provision (whether on his own part or on the part of any company), or

(b) a default order is made against him, that is to say an order under any of the following provisions—

(i) section 244 of the Companies Act (order requiring delivery of company accounts),

(ii) section 713 of that Act (enforcement of company's duty to make returns),

(iii) section 41 of the Insolvency Act (enforcement of receiver's or manager's duty to make returns), or

(iv) section 170 of that Act (corresponding provision for liquidator in winding up), in respect of any such contravention of or failure to comply with that provision (whether on his own part or on the part of any company).

(4) In this section "the court" means any court having jurisdiction to wind up any of the companies in relation to which the offence or other default has been or is alleged to have been committed.

(5) The maximum period of disqualification under this section is 5 years.

4 Disqualification for fraud, etc., in winding up

(1) The court may make a disqualification order against a person if, in the course of the winding up of a company, it appears that he—

(a) has been guilty of an offence for which he is liable (whether he has been convicted or not) under section 458 of the Companies Act (fraudulent trading), or

(b) has otherwise been guilty, while an officer or liquidator of the company or receiver or manager of its property, of any fraud in relation to the company or of any breach of his duty as such officer, liquidator, receiver or manager.

(2) In this section "the court" means any court having jurisdiction to wind up any of the companies in relation to which the offence or other default has been or is alleged to have been committed ; and " officer " includes a shadow director.

(3) The maximum period of disqualification under this section is 15 years.

5 Disqualification on summary conviction

(1) An offence counting for the purposes of this section is one of which a person is convicted (either on indictment or summarily) in consequence of a contravention of, or failure to comply with, any provision of the companies legislation requiring a return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the registrar of companies (whether the contravention or failure is on the person's own part or on the part of any company).

(2) Where a person is convicted of a summary offence counting for those purposes, the court by which he is convicted (or, in England and Wales, any other magistrates' court acting for the same petty sessions area) may make a disqualification order against him if the circumstances specified in the next subsection are present.

(3) Those circumstances are that, during the 5 years ending with the date of the conviction, the person has had made against him, or has been convicted of, in total not less than 3 default orders and offences counting for the purposes of this section; and those offences may include that of which he is convicted as mentioned in subsection (2) and any other offence of which he is convicted on the same occasion.

(4) For the purposes of this section—

(a) the definition of " summary offence " in Schedule 1 to the [1978 c. 30.] Interpretation Act 1978 applies for Scotland as for England and Wales, and

(b) " default order " means the same as in section 3(3)(b).

(5) The maximum period of disqualification under this section is 5 years.

Disqualification for unfitness

6 Duty of court to disqualify unfit directors of insolvent companies

(1) The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied—

(a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and

(b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.

(2) For the purposes of this section and the next, a company becomes insolvent if—

(a) the company goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up,

(b) an administration order is made in relation to the company, or

(c) an administrative receiver of the company is appointed ;

and references to a person's conduct as a director of any company or companies include, where that company or any of those companies has become insolvent, that person's conduct in relation to any matter connected with or arising out of the insolvency of that company.

(3) In this section and the next " the court " means—

(a) in the case of a person who is or has been a director of a company which is being wound up by the court, the court by which the company is being wound up,

(b) in the case of a person who is or has been a director of a company which is being wound up voluntarily, any court having jurisdiction to wind up the company,

(c) in the case of a person who is or has been a director of a company in relation to which an administration order is in force, the court by which that order was made, and

(d) in any other case, the High Court or, in Scotland, the Court of Session;

and in both sections " director " includes a shadow director.

(4) Under this section the minimum period of disqualification is 2 years, and the maximum period is 15 years.

7 Applications to court under s. 6; reporting provisions

(1) If it appears to the Secretary of State that it is expedient in the public interest that a disqualification order under section 6 should be made against any person, an application for the making of such an order against that person may be made—

(a) by the Secretary of State, or

(b) if the Secretary of State so directs in the case of a person who is or has been a director of a company which is being wound up by the court in England and Wales, by the official receiver.

(2) Except with the leave of the court, an application for the making under that section of a disqualification order against any person shall not be made after the end of the period of 2 years beginning with the day on which the company of which that person is or has been a director became insolvent.

(3) If it appears to the office-holder responsible under this section, that is to say—

(a) in the ease of a company which is being wound up by the court in England and Wales, the official receiver,

(b) in the case of a company which is being wound up otherwise, the liquidator,

(c) in the case of a company in relation to which an administration order is in force, the administrator, or

(d) in the case of a company of which there is an administrative receiver, that receiver,

that the conditions mentioned in section 6(1) are satisfied as respects a person who is or has been a director of that company, the office-holder shall forthwith report the matter to the Secretary of State.

(4) The Secretary of State or the official receiver may require the liquidator, administrator or administrative receiver of a company, or the former liquidator, administrator or administrative receiver of a company—

(a) to furnish him with such information with respect to any person's conduct as a director of the company, and

(b) to produce and permit inspection of such books, papers and other records relevant to that person's conduct as such a director,

as the Secretary of State or the official receiver may reasonably require for the purpose of determining whether to exercise, or of exercising, any function of his under this section.

8 Disqualification after investigation of company

(1) If it appears to the Secretary of State from a report made by inspectors under section 437 of the Companies Act, or from information or documents obtained under section 447 or 448 of that Act, that it is expedient in the public interest that a disqualification order should be made against any person who is or has been a director or shadow director of any company, he may apply to the court for such an order to be made against that person.

(2) The court may make a disqualification order against a person where, on an application under this section, it is satisfied that his conduct in relation to the company makes him unfit to be concerned in the management of a company.

(3) In this section " the court" means the High Court or, in Scotland, the Court of Session.

(4) The maximum period of disqualification under this section is 15 years.

9 Matters for determining unfitness of directors

(1) Where it falls to a court to determine whether a person's conduct as a director or shadow director of any particular company or companies makes him unfit to be concerned in the management of a company, the court shall, as respects his conduct as a director of that company or, as the case may be, each of those companies, have regard in particular—

(a) to the matters mentioned in Part I of Schedule 1 to this Act, and

(b) where the company has become insolvent, to the matters mentioned in Part II of that Schedule ;

and references in that Schedule to the director and the company are to be read accordingly.

(2) Section 6(2) applies for the purposes of this section and Schedule 1 as it applies for the purposes of sections 6 and 7.

(3) Subject to the next subsection, any reference in Schedule 1 to an enactment contained in the Companies Act or the Insolvency Act includes, in relation to any time before the coming into force of that enactment, the corresponding enactment in force at that time.

(4) The Secretary of State may by order modify any of the provisions of Schedule 1; and such an order may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.

(5) The power to make orders under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Other cases of disqualification

10 Participation in wrongful trading

(1) Where the court makes a declaration under section 213 or 214 of the Insolvency Act that a person is liable to make a contribution to a company's assets, then, whether or not an application for such an order is made by any person, the court may, if it thinks fit, also make a disqualification order against the person to whom the declaration relates.

(2) The maximum period of disqualification under this section is 15 years.

11 Undischarged bankrupts

(1) It is an offence for a person who is an undischarged bankrupt to act as director of, or directly or indirectly to take part in or be concerned in the promotion, formation or management of, a company, except with the leave of the court.

(2) " The court" for this purpose is the court by which the person was adjudged bankrupt or, in Scotland, sequestration of his estates was awarded.

(3) In England and Wales, the leave of the court shall not be given unless notice of intention to apply for it has been served on the official receiver; and it is the latter's duty, if he is of opinion that it is contrary to the public interest that the application should be granted, to attend on the hearing of the application and oppose it

12 Failure to pay under county court administration order

(1) The following has effect where a court under section 429 of the Insolvency Act revokes an administration order under Part VI of the [1984 c. 28.] County Courts Act 1984.

(2) A person to whom that section applies by virtue of the order under section 429(2)(b) shall not, except with the leave of the court which made the order, act as director or liquidator of, or directly or indirectly take part or be concerned in the promotion, formation or management of, a company.

Consequences of contravention

13 Criminal penalties

—If a person acts in contravention of a disqualification order or of section 12(2), or is guilty of an offence under section 11, he is liable—

(a) on conviction on indictment, to imprisonment for not more than 2 years or a fine, or both ; and

(b) on summary conviction, to imprisonment for not more than 6 months or a fine not exceeding the statutory maximum, or both.

14 Offences by body corporate

(1) Where a body corporate is guilty of an offence of acting in contravention of a disqualification order, and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

15 Personal liability for company's debts where person acts while disqualified

(1) A person is personally responsible for all the relevant debts of a company if at any time—

(a) in contravention of a disqualification order or of section 11 of this Act he is involved in the management of the company, or

(b) as a person who is involved in the management of the company, he acts or is willing to act on instructions given without the leave of the court by a person whom he knows at that time to be the subject of a disqualification order or to be an undischarged bankrupt.

(2) Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable.

(3) For the purposes of this section the relevant debts of a company are—

(a) in relation to a person who is personally responsible under paragraph (a) of subsection (1), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company, and

(b) in relation to a person who is personally responsible under paragraph (b) of that subsection, such debts and other liabilities of the company as are incurred at a time when that person was acting or was willing to act on instructions given as mentioned in that paragraph.

(4) For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.

(5) For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given without the leave of the court by a person whom he knew at that time to be the subject of a disqualification order or to be an undischarged bankrupt is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.

Supplementary provisions

16 Application for disqualification order

(1) A person intending to apply for the making of a disqualification order by the court having jurisdiction to wind up a company shall give not less than 10 days' notice of his intention to the person against whom the order is sought; and on the hearing of the application the last-mentioned person may appear and himself give evidence or call witnesses.

(2) An application to a court with jurisdiction to wind up companies for the making against any person of a disqualification order under any of sections 2 to 5 may be made by the Secretary of State or the official receiver, or by the liquidator or any past or present member or creditor of any company in relation to which that person has committed or is alleged to have committed an offence or other default.

(3) On the hearing of any application under this Act made by the Secretary of State or the official receiver or the liquidator, the applicant shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.

17 Application for leave under an order

(1) As regards the court to which application must be made for leave under a disqualification order, the following applies—

(a) where the application is for leave to promote or form a company, it is any court with jurisdiction to wind up companies, and

(b) where the application is for leave to be a liquidator, administrator or director of, or otherwise to take part in the management of a company, or to be a receiver or manager of a company's property, it is any court having jurisdiction to wind up that company.

(2) On the hearing of an application for leave made by a person against whom a disqualification order has been made on the application of the Secretary of State, the official receiver or the liquidator, the Secretary of State, official receiver or liquidator shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.

18 Register of disqualification orders

(1) The Secretary of State may make regulations requiring officers of courts to furnish him with such particulars as the regulations may specify of cases in which—

(a) a disqualification order is made, or

(b) any action is taken by a court in consequence of which such an order is varied or ceases to be in force, or

(c) leave is granted by a court for a person subject to such an order to do any thing which otherwise the order prohibits him from doing ;

and the regulations may specify the time within which, and the form and manner in which, such particulars are to be furnished.

(2) The Secretary of State shall, from the particulars so furnished, continue to maintain the register of orders, and of cases in which leave has been granted as mentioned in subsection (1)(c), which was set up by him under section 29 of the [1976 c. 69.] Companies Act 1976 and continued under section 301 of the [1985 c. 6.] Companies Act 1985.

(3) When an order of which entry is made in the register ceases to be in force, the Secretary of State shall delete the entry from the register and all particulars relating to it which have been furnished to him under this section or any previous corresponding provision.

(4) The register shall be open to inspection on payment of such fee as may be specified by the Secretary of State in regulations.

(5) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

19 Special savings from repealed enactments

Schedule 2 to this Act has effect—

(a) in connection with certain transitional cases arising under sections 93 and 94 of the [1981 c. 62.] Companies Act 1981, so as to limit the power to make a disqualification order, or to restrict the duration of an order, by reference to: events occurring or things done before those sections came into force,

(b) to preserve orders made under section 28 of the Companies Act 1976 (repealed by the Act of 1981), and

(c) to preclude any applications for a disqualification order under section 6 or 8, where the relevant company went into liquidation before 28th April 1986.

Miscellaneous and general

20 Admissibility in evidence of statements

In any proceedings (whether or not under this Act), any statement made in pursuance of a requirement imposed by or under sections 6 to 10, 15 or 19(c) of, or Schedule 1 to, this Act, or by or under rules made for the purposes of this Act under the Insolvency Act, may be used in evidence against any person making or concurring in making the statement.

21 Interaction with Insolvency Act

(1) References in this Act to the official receiver, in relation to the winding up of a company or the bankruptcy of an individual, are to any person who, by virtue of section 399 of the Insolvency Act, is authorised to act as the official receiver in relation to that winding up or bankruptcy ; and, in accordance with section 401(2) of that Act, references in this Act to an official receiver includes a person appointed as his deputy.

(2) Sections 6 to 10, 15, 19(c) and 20 of, and Schedule 1 to, this Act are deemed included in Parts I to VII of the Insolvency Act for the purposes of the following sections of that Act—

• section 411 (power to make insolvency rules);

• section 414 (fees orders);

• section 420 (orders extending provisions about insolvent companies to insolvent partnerships);

• section 422 (modification of such provisions in their application to recognised banks); and

• section 431 (summary proceedings).

(3) Section 434 of that Act (Crown application) applies to sections 6 to 10, 15, 19(c) and 20 of, and Schedule 1 to, this Act as it does to the provisions of that Act which are there mentioned.

22 Interpretation

(1) This section has effect with respect to the meaning of expressions used in this Act, and applies unless the context otherwise requires.

(2) The expression " company "—

(a) in section 11, includes an unregistered company and a company incorporated outside Great Britain which has an established place of business in Great Britain, and

(b) elsewhere, includes any company which may be wound up under Part V of the Insolvency Act.

(3) Section 247 in Part VII of the Insolvency Act (interpretation for the first Group of Parts of that Act) applies as regards references to a company's insolvency and to its going into liquidation ; and " administrative receiver " has the meaning given by section 251 of that Act.

(4) " Director " includes any person occupying the position of director, by whatever name called, and in sections 6 to 9 includes a shadow director.

(5) " Shadow director ", in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act (but so that a person is not deemed a shadow director by reason only that the directors act on advice given by him in a professional capacity).

(6) Section 740 of the Companies Act applies as regards the meaning of " body corporate " ; and " officer " has the meaning given by section 744 of that Act.

(7) In references to legislation other than this Act—

• " the Companies Act " means the [1985 c. 6.] Companies Act 1985 ;

• " the Companies Acts " has the meaning given by section 744 of that Act; and

• " the Insolvency Act " means the [1986 c. 45.] Insolvency Act 1986 ;

and in sections 3(1) and 5(1) of this Act " the companies legislation " means the Companies Acts (except the Insider Dealing Act), Parts I to VII of the Insolvency Act and, in Part XV of that Act, sections 411, 413, 414, 416 and 417.

(8) Any reference to provisions, or a particular provision, of the Companies Acts or the Insolvency Act includes the corresponding provisions or provision of the former Companies Acts (as defined by section 735 (1)(c) of the Companies Act, but including also that Act itself) or, as the case may be, the [1985 c. 65.] Insolvency Act 1985.

(9) Any expression for whose interpretation provision is made by Part XXVI of the Companies Act (and not by subsections (3) to (8) above) is to be construed in accordance with that provision.

23 Transitional provisions, savings, repeals

(1) The transitional provisions and savings in Schedule 3 to this Act have effect, and are without prejudice to anything in the [1978 c. 30.] Interpretation Act 1978 with regard to the effect of repeals.

(2) The enactments specified in the second column of Schedule 4 to this Act are repealed to the extent specified in the third column of that Schedule.

24 Extent

(1) This Act extends to England and Wales and to Scotland.

(2) Nothing in this Act extends to Northern Ireland.

25 Commencement

This Act comes into force simultaneously with the Insolvency Act 1986.

26 Citation

This Act may be cited as the Company Directors Disqualification Act 1986.