CHAPTER 15 – ANNEX A – CATEGORISATION OF DISQUALIFICATION ALLEGATIONS
These categories relate to the OPI scores applicable in each case and therefore are based on the likely resources needed to undertake the investigation, rather than the severity of the misconduct for the purposes of calculating the appropriate period for disqualification in accordance with the Sevenoaks Stationers (Retail) Ltd ([1991] CH 164) brackets.
Category A
Trading While Insolvent:
Trading at the risk of creditors generally, such an allegation will involve evidencing knowledge of insolvency and analysis of how debts have increased over a specific period of time. The nature of trading covered by such an allegation must be sufficiently complex to involve several creditors.
Trading Through a Successor Company:
Cases where it is alleged that the current company was set up in a way which was the same as or similar to that of a previous failure and that the director has not learned from the preceding failure.
S216 allegations and a transfer of assets allegation may form part of this allegation.
Breach of Fiduciary Duty:
Cases where it is alleged that the conduct of the director is such that he has benefited from his position as a director, where he is in a position of trust in control of individual’s funds.
e.g. Deposit taking after insolvency
Misuse of pension funds
Number of defendants:
Cases with 4 or more defendants
Category B
Trading to the detriment of specific creditors.
Cases where it is alleged that trading was to the detriment of a specific creditor other than the Crown.
Failure to maintain/preserve accounting records.
Cases where it is alleged that the director has failed to maintain adequate accounting records. This requires evidencing responsibility and showing effect.
Cases where it is alleged that the director has failed to preserve accounting records, this will require proving the existence of the records and necessitates showing an effect of the lack of preservation.
Shadow/de facto director
A report that alleges that someone has acted as a shadow /de facto director will fall in this category.
Breach of Fiduciary Duty
Cases where it is alleged that the director has protected himself over other creditors after, or as a result of which the company became insolvent, e.g;
Number of Defendants
Cases with 3 defendants.
Category C
Trading to the Detriment of the Crown
Director allowed the company to operate a deliberate policy of non payment of crown debts.
Director allowed the company to continue to trade while not paying the Crown as an involuntary creditor encompassing failure to file returns, trading at unreasonable risk to the crown and trading where the Crown is treated differently to other creditors. (See Bulletin 1/03)
S216 allegations:
Director reusing a prohibited company name in the company being reported on.
Statutory Filing Defaults:
This will include allegations of failing to file annual accounts, annual returns, PAYE returns, VAT returns.
Abrogation of duty:
This includes failure to comply with a statutory duty to cooperate with an office holder and failure to participate actively in the management of a company and thereby implicitly allowing misconduct of another director.