4. Directors Flashcards
What is a ‘De Facto Director’
(1) NOT validly appointed as a director
(2) Purports to be a director
What is a ‘Shadow Director’ ?
(1) NOT validly appointed as a director
(2) Does NOT purport to be a director BUT exerts influence / control over the company
What is the minimum number of directors for:
(a) Private company
(b) Public company
(a) Private - 1
(b) Public - 2
How many ‘human’ directors (i.e. not a company) must a public and private company have?
At least 1
What are the 4 requirements of a person to be a ‘human’ director?
(1) 16 or over
(2) Mentally / physically capable
(3) NOT bankrupt
(4) NOT disqualified from being a director
How are the initial / first director(s) appointed?
Automatically on incorporation - named on the form IN01
How many directors does the Model Articles assume and what is the rational behind this?
2
Why? - meet Quorum requirements in a BM
Under the Model Articles, what 2 groups of people can appoint a director and what must they each pass to do this?
(1) Directors - Board Resolution (BR)
(2) Shareholders - Ordinary Resolution (OR)
What is an ‘Executive Director’?
Director + Employee (of company)
What is a ‘Non-Executive Director’?
Director + NOT Employee (of company)
To appoint a ‘Non-executive Director’, they must be appointed as a Director.What 2 resolutions can be used to do this?
BR or OR
To appoint an ‘Executive Director’, they must be appointed as both a Director and then as an employee. What resolutions are required to do this?
Director - BR or OR
Employee - BR
What 3 steps must be taken after a new Director has been appointed?
(1) NOTIFY COMPANIES HOUSE within 14 days of the appointment by form AP01 (human) or AP02 (company)
(2) Enter director on its REGISTER OF DIRECTORS
(3) Enter director on its REGISTER OF DIRECTORS’ RESIDENTIAL ADDRESSES
When must Companies House be notified of the appointment of a new Director?
Within 14 days (of appointment)
What form is used for the appointment of a new director who is:
(1) Human
(2) Company
(1) AP01
(2) AP02
What type of duty do directors have to a company?
Fiduciary
What is Director’s Duty under s171?
Duty to act within company’s constitution (i.e. ARTICLES) and exercise their power for PROPER PURPOSES
Under s171 - the duty to act within company’s constitution (i.e. Articles) and exercise their power for proper purposes. What is the meaning of ‘exercise their power for a proper purpose’?
Director’s should act in the best interests of the company (NOT their personal interests)
Under s172 - Duty to promote the success of the company. What type of test is used to judge if a director did this?
Subjective (i.e. did the director in GOOD FAITH believe it would promote the success of the company?)
What is Director’s Duty under s172?
Duty to promote the SUCCESS of the company
Under a breach of s172 - Duty to promote the success of the company - is it likely to be established?
No (subjective test - did the director in GOOD FAITH believe it would promote the success of the company?)
What is Director’s Duty under s173?
Duty to exercise INDEPENDENT judgment
Is taking professional legal / financial advice a breach of a director’s duty under s173 -Duty to exercise independent judgment?
No
What is Director’s Duty under s174?
Duty to exercise REASONABLE care, skill and diligence (CSD)
Under Director’s duty s174 - Duty to exercise reasonable care, skill and diligence -
What standard will a director be held to?
Reasonably diligent person
Under Director’s duty s174 - Duty to exercise reasonable care, skill and diligence - a director will be held to the standard of a ‘reasonably diligent person’.
(1) What 2 components make up this test?
(2) Is each component subjective or objective?
(1) OBJECTIVE - knowledge, skill and experience that may REASONABLY be expected of a director in a similar position
(2) SUBJECTIVE - Raised based on the ACTUAL LEVEL of knowledge, skill and experience the person has
What is Director’s Duty under s175?
Duty to avoid conflicts of interest
What 3 areas of conflict are likely to feature in a breach of Director’s Duty under s175 - Duty to avoid conflicts of interest?
(1) Property
(2) Information
(3) Opportunity
What are the 2 exceptions that will stop a director breaching their duty under s175 - Duty to avoid conflicts of interest?
(1) Situation CANNOT REASONABLY be regarded as likely to give rise to a conflict of interest
(2) Directors AUTHORISE breach by Board Resolution (BR)
(1) How can a director’s breach of s175 -Duty to avoid conflicts of interest - be authorised?
(2) Will the interested director be able to vote?
(1) Board Resolution (BR)
(2) No
What is Director’s Duty under s176?
Duty to NOT accept benefits from third parties (e.g. a client)
(1) What is the exception to the director breaching their duty under s176 - Duty to NOT accept benefits from third parties (e.g. a client)
(2) What is the main example of this?
(1) Acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict
(2) Normal corporate hospitality
What is Director’s Duty under s177?
Duty to declare interest in a proposed transaction or arrangement
(SEE Deck 3)
What are the 4 remedies available for a breach of Director’s Duties under s171-177 (NOT s174)?
(1) Account of profits
(2) Damages
(3) Rescission
(4) Injunction
What is the 1 remedy available for a breach of Director’s Duties under s174 - Duty to exercise reasonable care, skill and diligence
Damages
What are the 3 ways a Director can obtain relief from liability for a breach of Director’s Duties?
(1) Approval by Directors
(2) Approval by Shareholders
(3) Approval by Court
A breach of Director’s Duties can be authorised by SHAREHOLDERS
(a) Through what resolution?
(b) Whose votes will be excluded?
(a) By ordinary resolution (OR)
(b) Any ‘interested’ director who is also a shareholder
Relief from a breach of Director’s Duties can be authorised by the court. What 2 tests must the court be satisfied of - ‘The court believes the Director…
(1) Acted reasonably AND
(2) Best interests of the company
What powers do the MA give to the Directors?
All power subject to any direction given by Special Resolution
How are the 2 ways Director’s are able to make a decision?
(1) Pass a Board Resolution (BR) at a Board Meeting (BM)
(2) Unanimous agreement
What are the 4 key restrictions on Director’s powers that require the involvement of shareholders?
(1) Substantial property contracts
(2) Director’s service contracts
(3) Loans to directors
(4) Loss of office payments
(SEE NEXT DECK)
What are the 5 ways a Director will no longer serve as a Director? (clue - 2Ds3Rs)
(1) Death
(2) Retirement
(3) Resignation
(4) Removal (by shareholders)
(5) Disqualification (CCDA 1986)
2Ds3Rs
A Director who wishes to retire or resign voluntarily, must serve what?
Serve a notice of resignation to the company
What are the 2 key ways a Director can be removed?
(1) Bankruptcy Order
(2) Mentally / physically incapable
For the shareholders to remove a Director:
(1) What must they call?
(2) What notice period must be given?
(3) What resolution must be passed at the meeting?
(1) General Meeting (GM)
(2) ‘Special notice’ - 28 CLEAR days
(3) Ordinary Resolution (OR)
When removing a Director through a OR by the shareholders, what key clause in the Articles should be checked beforehand?
Bushell v Faith clause
(1) What is a ‘Bushell v Faith’ clause?
(2) Is it contained in the Model Articles?
(1) Clause that gives shareholders who are also directors weighted voting rights on a resolution to remove them as a director (e.g. 2 votes per share)
(2) NO
Following the appointment / removal of a Director, what 3 procedural steps must be taken?
(1) Update the ‘register of directors’
(2) Update the ‘register of director’s residential addresses (if held)’
(3) File relevant form (AP01, AP02, TM01, TM02) at Companies House within 14 days
To appoint or remove a director, the relevant forms must be submitted at Companies House within 14 days. What form would be submitted for:
(1) Appointment of a human director
(2) Appointment of a company director
(3) Removal of a human director
(4) Removal of a company director
(1) AP01
(2) AP02
(3) TM01
(4) TM02
Who can disqualify Directors?
The court
How long can the court disqualify a director for?
2 to 15 years
What are the 2 main grounds the court will disqualify a director under?
(1) UNFIT director of an INSOLVENT company (e.g. deliberate disregard for creditors like hiding stock)
(2) Wrongful / fraudulent trading
