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Charities Act 2006

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This is the original version (as it was originally enacted).

38Power of Commission to relieve trustees, auditors etc. from liability for breach of trust or duty
This section has no associated Explanatory Notes

After section 73C of the 1993 Act (inserted by section 37 above) insert—

73DPower to relieve trustees, auditors etc. from liability for breach of trust or duty

(1)This section applies to a person who is or has been—

(a)a charity trustee or trustee for a charity,

(b)a person appointed to audit a charity’s accounts (whether appointed under an enactment or otherwise), or

(c)an independent examiner, reporting accountant or other person appointed to examine or report on a charity’s accounts (whether appointed under an enactment or otherwise).

(2)If the Commission considers—

(a)that a person to whom this section applies is or may be personally liable for a breach of trust or breach of duty committed in his capacity as a person within paragraph (a), (b) or (c) of subsection (1) above, but

(b)that he has acted honestly and reasonably and ought fairly to be excused for the breach of trust or duty,

the Commission may make an order relieving him wholly or partly from any such liability.

(3)An order under subsection (2) above may grant the relief on such terms as the Commission thinks fit.

(4)Subsection (2) does not apply in relation to any personal contractual liability of a charity trustee or trustee for a charity.

(5)For the purposes of this section and section 73E below—

(a)subsection (1)(b) above is to be read as including a reference to the Auditor General for Wales acting as auditor under section 43B above, and

(b)subsection (1)(c) above is to be read as including a reference to the Auditor General for Wales acting as examiner under that section;

and in subsection (1)(b) and (c) any reference to a charity’s accounts is to be read as including any group accounts prepared by the charity trustees of a charity.

(6)This section does not affect the operation of—

(a)section 61 of the Trustee Act 1925 (power of court to grant relief to trustees),

(b)section 727 of the Companies Act 1985 (power of court to grant relief to officers or auditors of companies), or

(c)section 73E below (which extends section 727 to auditors etc. of charities which are not companies).

73ECourt’s power to grant relief to apply to all auditors etc. of charities which are not companies

(1)Section 727 of the Companies Act 1985 (power of court to grant relief to officers or auditors of companies) shall have effect in relation to a person to whom this section applies as it has effect in relation to a person employed as an auditor by a company.

(2)This section applies to—

(a)a person acting in a capacity within section 73D(1)(b) or (c) above in a case where, apart from this section, section 727 would not apply in relation to him as a person so acting, and

(b)a charity trustee of a CIO.”

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