A Consultative Paper on the Company Officers Disqualification Bill October 2007

Transcription

1 A Consultative Paper on the Company Officers Disqualification Bill October 2007

2 CONTENTS Page No. Section 1 Introduction 2 Section 2 Summary of contents of the draft Bill compared with current 4-9 disqualification provisions Clause 1 4 Clause 2 and Clause Clause 3 5 Clause 4 5 Clause 5 and Clause Clause 8 and Clause Clause 9 and Clause 10 7 Clause 13 7 Clause 14 8 Clause 16 8 Clause 17 8 Clause 11, Clause 12, Clause 18, Clause 19, Clause 20 and 8 Clause 21 Clause 22, Clause 23, Clause 24, Clause 25 and Clause

3 SECTION 1 1. INTRODUCTION As you may be aware, the Financial Supervision Commission ( the Commission ) is the authority with power to petition the court for the disqualification of persons who may be adjudged to be unfit to act as a director, secretary or liquidator of a company, a receiver or manager of a company s property, or to be in any way concerned or take part in the promotion, formation or management of a company (see s.26 Companies Act 1992 ( CA92 )). The Commission may also apply to the court for the disqualification of a director of an insolvent company where that person s conduct makes him unfit to be concerned in the management of a company (see s.31 Companies Act 1982 ( CA82 )). The Official Receiver may apply to the court for the disqualification of a person who in his opinion has committed a fraud in the promotion or formation of a company or by a director or other officer of a company (see s.208 Companies Act 1931 ( CA31 )). An independent review of the Commission s conduct of a disqualification case pursued under s.26 CA92 identified some deficiencies in the relevant law and the procedures followed by the Commission in that particular case. The Commission issued a public statement on 12 August 2004 stating the key findings of this independent review and how the Commission had already addressed or was proposing to address the recommendations. A primary aim of the Company Officers Disqualification Bill 2007 ( the draft Bill ) is to address the independent review s recommendations. Other recommendations related to making Rules of Court for disqualification proceedings. The Bill provides for the making of Rules of Court for the purposes of regulating and prescribing the practices and procedures to be followed by the Court (see cl.24). The Commission has had initial discussions with the Deemsters, who confirm that it is their intention to make Rules of Court and that such Rules would come into operation at the same time as the Company Officers Disqualification [Act] comes into operation. It is envisaged that these Rules, together with the General Rules of Court, will cover all the matters raised in the independent review. Another primary aim of the draft Bill is to draw together all of the current grounds for disqualification into one stand-alone and more accessible body of law, for the purposes of clarification and transparency. This follows the analogous provisions of the UK s Company Directors Disqualification Act 1986 ( the UK Act ). In preparing the draft Bill, the opportunity has been taken to review the grounds for disqualification, clarifying as necessary. The draft Bill also introduces the concept of a disqualification undertaking which is an agreement between the disqualified person and the Commission whereby that person acknowledges their previous unfit conduct and agrees not to be associated with companies for a certain number of years. In this way, the time and cost of going through the Courts can be avoided when there is agreement between the parties on the facts and willingness to accept an undertaking not to continue to act in the relevant relationship to companies for an agreed period. This was recommended in the independent review. 2

4 Section 2 of this paper details the similarities and differences in the draft Bill in relation to the current disqualification provisions. The intention is to highlight key points in the draft Bill for the purposes of comparison with the current law, to show how the recommendations in the independent review have been addressed and where appropriate, indicating the analogous provision in the UK Act. The Island s law has been tested in the Courts and therefore the draft Bill develops the current Isle of Man law in relation to disqualifications and does not attempt to follow the UK s more prescriptive approach. However, the UK s case law has been considered and adopted as appropriate case law which the Island s Courts may take into account. It would be much appreciated if we could have your response as soon as possible and at the latest by 11 th December Responses to: Mrs E P Berry Senior Adviser - Policy & Legal Unit Financial Supervision Commission PO Box 58 Finch Hill House Bucks Road Douglas IM99 1 BT Tel: (01624) liz.berry@fsc.gov.im 3

5 SECTION 2 2. SUMMARY OF CONTENTS OF THE BILL COMPARED WITH CURRENT DISQUALIFICATION PROVISIONS (The intention is to highlight key points in the draft Bill for the purposes of comparison with the current law and where appropriate, indicating the analogous provision set by the UK s Company Officers Disqualification Act 1986 ( the UK Act ). However, in order to understand the proposals, it is recommended that you read the draft Bill.) Clause 1 (Disqualification orders: general) This clause identifies the particular roles in relation to companies to which disqualification may apply. These are acting as a director, secretary, registered agent, liquidator, receiver or being directly or indirectly concerned in any way in the formation or management of a company and are referred to throughout the draft Bill as officers of companies. It should be noted that the draft Bill applies to persons and the expression is defined in the Interpretation Act 1976 as including any body of persons, corporate or unincorporated and the gender neutral drafting adopted in legislation should be read to include bodies corporate i.e. the draft Bill also applies to corporate directors and corporate secretaries etc. This is the same as s.26(1) CA92 but with the addition in the draft Bill of "registered agents". Registered agent is defined in cl.22(11) and includes the registered agent of an LLC formed under the Limited Liability Companies Act 1996 and the registered agent of a company incorporated under the Companies Act It should also be noted that the definition of company in cl.22(5) includes unregistered companies which may be wound up under Part X CA31 and foreign companies registered as having established a place of business in the Island under Part XI CA31. Currently s.26 CA92 provides that a disqualification order issued by the Court begins on the date of the order whereas cl.1 states that unless the Court provides otherwise, it shall commence 21 days after the date of the order. For clarification, cl.1(3) states that where a disqualification order is made against a person who is already the subject of an order or disqualification undertaking (see cl.2), the subsequent order may run concurrently with or consecutively after the previous order or undertaking. The period of disqualification by the Court is specified in the relevant sections (but in most cases the period specified is a minimum of two years and maximum of fifteen years). Cl.1(4) notes that an order may be made on the grounds of conduct other than criminal convictions. Clause 2 (Disqualification undertakings) and Clause 6 (Acceptance of undertaking) The independent review of the Commission s procedures and the law relating to disqualifications, which was referred to in Section 1 of this paper, recommended that the Island should introduce disqualification undertakings and to address this recommendation, cl.2 provides for the Commission to accept a disqualification undertaking in the circumstances provided in clause 6 (expedient in the public interest). Furthermore, the 4

6 Commission must be satisfied that the person s conduct as an officer of a company makes him unfit to act in that capacity. The Commission may also accept a disqualification undertaking where a person s conduct as an officer of an insolvent company is construed to have been unfit conduct. Clause 2 follows the UK provision which established that if the facts of the case are agreed between the parties, and the officer is willing to give an undertaking that he or she will refrain from acting as an officer of companies for an agreed period, the matter can be settled out of Court. A disqualification undertaking saves the cost of having to petition the Court and also avoids unnecessarily wasting the Court s time, where there is agreement between the parties. Clause 3 (Power of court to disqualify unfit officers) Clause 3 is the successor to s.26 CA92 in respect of unfit conduct being the grounds for disqualification by the Court and stipulates a minimum period for disqualification of two years and maximum of fifteen years. Clause 4 (Duty of court to disqualify unfit directors of insolvent companies) Clause 4 is similar to the current s.31 CA82 (Disqualification of directors of insolvent companies) but whereas s.31 CA82 only takes account of unfit conduct in relation to insolvent companies where this happens twice within five years, Clause 4 applies in respect of unfit conduct in relation to an insolvent company and could therefore be in relation to a single occurrence. Clause 4 also differs from s.31 CA82 in that it follows the UK provision (s.6 Company Directors Disqualification Act 1986), which places a duty on the Court to disqualify whereas currently this is at the Court s discretion (i.e. the Court must rather than as currently the Court may ). Thus it will be unequivocal that the consequence of unfit behaviour as an officer of an insolvent company is disqualification. The Court does, however, have discretion as to the length of the disqualification which may be for a minimum of two years to a maximum of fifteen years. Clause 5 (Application for disqualification order) and Clause 7 (Reporting provisions) Clause 5(1) requires the applicant for a disqualification order to give 28 days notice to the person who will be the subject of the application, of its intention to apply to the Court. This addresses the independent review s recommendation that the subject of the application for disqualification be given advance notice before the application for an order is submitted to the Court. (Currently, the Commission is required to give ten days notice to the person concerned in respect of an application for disqualification in relation to an insolvent company but is not required to give advance notice in relation to an application under s.26 CA92. However, although it is not currently a requirement in relation to s.26 CA92 disqualification proceedings, the Commission s internal procedures have for some time included giving such notice in all cases.) Clause 5(2) specifies who has the right to apply to the Court for a disqualification order. They are the Commission, the official receiver, the liquidator, or any past or present member or creditor of the relevant company (in relation to which there has been unfit conduct by an officer of the company). However, although the official receiver, liquidator or receiver may make application to the Court, Clause 7 also requires them to report the matter to the Commission when, in the course of their investigation of the company s affairs, 5

7 they become aware that a person s conduct in relation to the company which is being wound up, liquidated or in receivership, renders that person unfit to be an officer of a company. Clause 7 recognises that the official receiver, liquidator or receiver s primary concern is in relation to the company (i.e. realising assets etc) but if their investigation reveals unfit conduct, it may be appropriate for the officer to be disqualified. Clause 7 will give the Commission the opportunity to pursue the matter if appropriate. For comparison, currently the following persons have the right to apply to the Court for a disqualification order under the specific provisions shown on the right Commission Official receiver Liquidator Past or present members Creditors re s.26 CA92 (unfit persons) and s.31 CA82 (directors of insolvent companies) re s.259 CA31 (responsibility of directors for fraudulent trading) re s.259 CA31 (responsibility of directors for fraudulent trading) re s.259 CA31 (responsibility of directors for fraudulent trading) re s.259 CA31 (responsibility of directors for fraudulent trading) Clause 5(3) places a time limit for making an application to the Court (within two years of the date on which the applicant could reasonably be expected to have sufficient knowledge of evidence to justify proceedings). However, the Court has discretion to allow an application to be made outside that period, which would depend on the particular circumstances of the case. The independent review recommended the introduction of a time limit on starting disqualification proceedings. To ensure equitable treatment of the defendant, Clause 5(3) formalises the Commission s current internal procedures by making this a statutory requirement. Clause 8 (Matters for determining unfitness of officers) and Clause 15 (Power of court to order rectification) Clauses 3 and 4 provide for the Court to make a disqualification order if it is satisfied that a person s conduct renders that person unfit to be an officer of a company and the matters the Court must have regard to in this respect are set out in Clause 8 and Schedule 1. Schedule 1 lists as examples of unfit conduct, some specific breaches of company and insolvency law as well as matters which have a broader scope; such as misfeasance or breach of any fiduciary or other duty by the officer in relation to the corporate entity, and misapplication of the company s money or property. Part 1 of the Schedule covers matters that are applicable in all cases and Part II covers matters which apply specifically to insolvent companies where the extent of the officer s responsibility for the insolvent company s actions is stated to be key (e.g. in relation to the causes of the company becoming insolvent; the company s failure to supply goods or services that have been paid for; etc). 6

8 The concept of unfit conduct is already enshrined in s.26 CA92 (unfit persons) and s.31 CA82 (directors of insolvent companies). There have been a number of successful petitions to the Court under s.26 CA92 and the grounds of unfit conduct have therefore been tested by the Court. Consequently, the Isle of Man has a body of case law relevant to the concept of unfit conduct. Clause 8 and Schedule 2 include the examples of unfit conduct currently cited in s.26 CA92. However, for the purpose of clarification and transparency, the matters contained in the draft Bill provide additional detail and some further examples based on case law and the circumstances cited in the UK Act. In considering matters relating to defaults under the Companies Acts, Clause 15 allows the Court to order rectification of the default. Clause 9 (Participation in fraudulent trading) and Clause 10 (Undischarged bankrupts) As noted in Section 1 of this paper, the draft Bill is designed to create a single stand-alone body of law applicable to the disqualification of officers of companies not only by restating and clarifying the current disqualification provisions in respect of unfit persons (s.26 CA92) and insolvent companies (s.31 CA82), but also to include other cases for disqualification. These are contained in Clauses 9 and 10. Clause 9 allows the Court to consider disqualification of a person who the Court has found to be liable in relation to a company having traded fraudulently. In these circumstances the Court may make a disqualification order as a consequence of the person s actions in relation to the fraudulent trading notwithstanding that no application has been made to the Court in that respect. Clause 10 mirrors s.141 CA31, which prohibits undischarged bankrupts from acting as directors of or participating in the management of companies. There is a similar prohibition under the Companies Act 2006 ( CA06 ) (s.93(1) CA06) but only in respect of acting as a director of a company registered under that Act. Clause 10 also mirrors s.141 CA31 in that both allow the person to act in relation to specific companies with the Court s permission. An undischarged bankrupt is required to give notice to his trustee in bankruptcy of his intention to apply to the Court for leave to act as an officer of a company and the trustee in bankruptcy may attend the hearing and oppose the application. In addition, Clause 10 provides that the Commission must also be notified and has the right to attend the hearing and oppose the application. Clause 13 (Register of disqualification orders and undertakings) Clause 13 continues the current requirement for the Commission to maintain public registers of disqualification orders and extends the requirement to include disqualification undertakings, which is a new concept under the draft Bill (see Clauses 2 and 6). Although in practice the public registers currently include notice of leave granted by the Court to act in relation to specific companies, Clause 13 makes this a statutory requirement as was recommended in the independent review referred to in Section 1 of this paper. Clause 13 also formalises how the Commission obtains the information from the Courts when a disqualification order is made or the Court varies an order or undertaking, including granting leave for the person to act in certain circumstances. 7

9 Clause 14 (Admissibility in evidence of statements) Clause 14 clarifies the position regarding self-incrimination so that any information obtained under the draft Bill may be used in evidence in relation to a disqualification, which are civil not criminal proceedings. However, Clause 14 provides that in criminal proceedings the prosecution may not use, or ask questions pertaining to, such statements unless the prosecution is responding to evidence presented or questions raised by or on behalf of the defendant. The exception is where the offence relates to falsification of documents and false statements under clauses 18 and 19 of the draft Bill or to perjury. Clause 16 (Inspection and investigation) Clause 16 and Schedule 2 set out the Commission s powers to obtain information and investigate where a person is, on reasonable grounds, suspected of being unfit to act as an officer of a company or acting in breach of a disqualification order or a disqualification undertaking. Clause 17 (Restrictions on disclosure of information) Clause 17 gives effect to Schedule 3 which protects confidentiality. This clause also provides for the restriction on the disclosure of information obtained by persons in relation to their functions under the draft Bill. The exceptions from restrictions on disclosure ( gateways ) mirror the Commission s gateways under regulatory legislation (Schedule 5 of the Financial Services Bill 2007), with the addition of a qualified power to inform other bodies having like powers of disqualification in other jurisdictions. Clause 11 (Criminal penalties), Clause 12 (Personal liability for company s debts where a person acts while disqualified), Clause 18 (Falsification of documents, etc. relevant to an investigation), Clause 19 (False statements), Clause 20 (Offences) and Clause 21 (Offences by body corporate) Clause 11 sets out the criminal penalties for breach of a disqualification order or undertaking, which may be a term of imprisonment or a fine or both. It also allows the Court to make a further disqualification order to run concurrently with, or continue after, the breached order or undertaking. Proceedings in this respect may only be brought by the Attorney General. That the Court should be able to issue a further disqualification and that criminal proceedings may only be at the suit of the Attorney General, follow the recommendation of the independent review (see Section 1 of this paper). Clause 12 is new and provides that a disqualified officer who acts in breach of an order or undertaking will be personally liable for the company s debts incurred as a result of his or her action. Clauses 18 and 19 create offences under the draft Bill in respect of falsifying, concealing, destroying or otherwise disposing of documents, which are known or suspected to be relevant to an investigation by the Commission under the draft Bill; and deliberately or recklessly making a statement or supplying information to the Commission, which is known to be relevant to such an investigation. Clause 21 provides that where an offence is committed by a body corporate and it is proved that it was committed with the consent or connivance or through the neglect of an officer of the company, the officer will also be guilty of the offence. It should be noted that officer is defined differently for the purposes of this Clause (the offences of providing false or misleading information etc). (See definition of officer in cl.22(9) which applies to persons who may be disqualified under the Bill.) 8

10 Clauses 22 (Interpretation), Clause 23 (Transitional provisions, savings, amendments and repeals), Clause 24 (Rules of court), Clause 25 (Orders, rules and regulations) and Clause 26 (Short title and commencement) These clauses define expressions used in the draft Bill; give effect to the transitional provisions in Schedule 4 and amendments and repeals to the Acts specified in Schedules 5 and 6; allow the Deemsters to make Rules of Court; specify the Tynwald procedures that apply to any rules or regulations made under the draft Bill; and finally state the draft Bill s short title and provide for bringing its provisions into operation. 9