When an Administrator or Liquidator establishes a Misfeasance claim there are a number of ramifications, the most important being:
- Details of the Misfeasance will form part of the Directors’ conduct report that the Administrator or Liquidator is required to submit to the Insolvency Service. This will have some impact upon the Insolvency Service’s decision to commence disqualification proceedings;
- The Director of Officeholder may be made liable to repay, restore or account to the company for any money or property received; and
- The Director or Officeholder may be made to compensate the company.
If it can be demonstrated that there was shareholders assent to the alleged Misfeasance or if the Director or Officeholder acted honestly and reasonably, the claim may be defeated.
Factors that will be taken into account in determining whether or not a Misfeasance claim succeeds include the loss to the company, the personal benefit derived, if sanction was sought from stakeholders and the degree of blameworthiness.
What Duties do Directors or Officeholders have that Would Constitute Misfeasance if Breached?
There are various duties that Directors and Officeholders have that if breached would constitute Misfeasance. These are contained in both legislation and common law. These include duties to promote the success of the company, to exercise independent judgement, to avoid conflicts of interest, to exercise reasonable skill, care and diligence, to act within their powers and not to declare or pay illegal dividends.
What Are Examples of Misfeasance?
There are numerous examples of actions that a Director or Officeholder may take that could constitute misfeasance. These would include paying unlawful dividends to shareholders, causing preferential payments to connected parties, misapplying company assets, trading at the expense of HMRC. Other activities could be failing to act in the interests of the company by diverting contacts to other companies that the Director or Officeholder also has an interest in or making a secret profit by taking a personal payment from a contractor as an inducement to use their services.
What are the Defences to a Misfeasance claim?
There are two separate and distinct defences to a Misfeasance claim. These are contained in either in common law or in legislation. In common law the defence occurs when it can be shown that the shareholders assented to the action that constitutes the alleged Misfeasance. However, this cannot be relied upon where the company was insolvent at the time that the shareholders ratified the action. The defence in legislation occurs if it can be shown that the Director or Officeholder acted honestly and reasonably, having regard to the circumstances of the case.
How Can the Defence to a Misfeasance Claim be Demonstrated?
There are various measures that could have been put into place to demonstrate that every step was taken to ensure that Directors or Officeholders were not malfeasant. These would include such things as having a shareholders meeting to ratify certain activities that could be construed as breaching of duty and making sure that financial records were maintained to demonstrate solvency at the time, holding Board Meetings to document why certain decisions were made and provide full transparency and obtaining professional or legal advice before undertaking such an activity.
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