These are claims under the Insolvency Act brought by Insolvency Practitioners against directors where it is considered that a directors actions were either wrongful, fraudulent or in breach of his/her duty to the company which caused the company to sustain a loss. As a result of the directors actions the Insolvency Practitioner can bring a claim against the director to try and claim back from him/her any loss that the Company sustained as result of such actions.
Claims under the Companies Act for breach of duties
Under the Companies Act 2006 directors have the following duties:
- Duty to act within powers
- Duty to promote the success of the Company
- Duty to exercise independent judgment
- Duty to exercise reasonable care skill and diligence
- Duty to avoid conflicts of interest
- Duty not to accept benefits from third parties
- Duty to declare an interest in a proposed transaction or arrangement with the company
A breach of any of these duties could lead to a claim being brought against that director by the Company (whether it is in a formal insolvency arrangement or not).
Repayment of Directors overdrawn loan account
If as a director you have an overdrawn loan account and the Company enters into Insolvency that overdrawn loan account is a debt due to the Company which you are personally liable to repay.
Dividends paid
If as a director you have allowed a payment to shareholders, called a distribution or a dividend, in excess of the company’s distributable reserves the amount paid in excess of the distributable reserves is subject to being repaid by the shareholder or if that is not possible from the director for authorising or allowing the payment to be made. Quite often directors are also shareholders.
Personal Guarantees
If you have given a personal guarantee to the Company’s lender, following the insolvency of the company, the lender is likely to call upon you under the terms of the personal guarantee for payment. You may have also secured the payment of the personal guarantee against your home which the lender may sell to repay company debts but only to the amount stated in the personal guarantee if it is for a limited amount.
For help or advice on this or other related matter, please contact Leanne-Schneider Rose l.schneider-rose@sydneymitchell.co.uk on 08081668827
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