Preliminary
1 Disqualification orders: general. C1
1
In the circumstances specified below in this Act a court may, and under F1sections 6 and 9A shall, make against a person a disqualification order, that is to say an order that F2for a period specified in the order—
a
he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
b
he shall not act as an insolvency practitioner.
2
In each section of this Act which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order there is specified the maximum (and, in section 6, the minimum) period of disqualification which may or (as the case may be) must be imposed by means of the order F3and, unless the court otherwise orders, the period of disqualification so imposed shall begin at the end of the period of 21 days beginning with the date of the order.
3
4
A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters.
1AF5 Disqualification undertakings: general.
1
In the circumstances specified in sections 7 and 8 the Secretary of State may accept a disqualification undertaking, that is to say an undertaking by any person that, for a period specified in the undertaking, the person—
a
will not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of a court, and
b
will not act as an insolvency practitioner.
2
The maximum period which may be specified in a disqualification undertaking is 15 years; and the minimum period which may be specified in a disqualification undertaking under section 7 is two years.
3
Where a disqualification undertaking by a person who is already subject to such an undertaking or to a disqualification order is accepted, the periods specified in those undertakings or (as the case may be) the undertaking and the order shall run concurrently.
4
In determining whether to accept a disqualification undertaking by any person, the Secretary of State may take account of matters other than criminal convictions, notwithstanding that the person may be criminally liable in respect of those matters.
Disqualification for general misconduct in connection with companies
2 Disqualification on conviction of indictable offence. C2
1
The court may make a disqualification order against a person where he is convicted of an indictable offence (whether on indictment or summarily) in connection with the promotion, formation, management F6liquidation or striking off of a company F7with the receivership of a company’s property or with his being an administrative receiver of a company.
2
“The court” for this purpose means—
a
any court having jurisdiction to wind up the company in relation to which the offence was committed, or
b
the court by or before which the person is convicted of the offence, or
c
in the case of a summary conviction in England and Wales, any other magistrates’ court acting F8in the same local justice area;
and for the purposes of this section the definition of “indictable offence” in Schedule 1 to the M1Interpretation Act 1978 applies for Scotland as it does for England and Wales.
3
The maximum period of disqualification under this section is—
a
where the disqualification order is made by a court of summary jurisdiction, 5 years, and
b
in any other case, 15 years.
3 Disqualification for persistent breaches of companies legislation.
1
The court may make a disqualification order against a person where it appears to it that he has been persistently in default in relation to provisions of the companies legislation requiring any return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the registrar of companies.
2
On an application to the court for an order to be made under this section, the fact that a person has been persistently in default in relation to such provisions as are mentioned above may (without prejudice to its proof in any other manner) be conclusively proved by showing that in the 5 years ending with the date of the application he has been adjudged guilty (whether or not on the same occasion) of three or more defaults in relation to those provisions.
3
A person is to be treated under subsection (2) as being adjudged guilty of a default in relation to any provision of that legislation if—
a
he is convicted (whether on indictment or summarily) of an offence consisting in a contravention of or failure to comply with that provision (whether on his own part or on the part of any company), or
b
a default order is made against him, that is to say an order under any of the following provisions—
i
F9section 452 of the Companies Act 2006 (order requiring delivery of company accounts),
F12ii
section 1113 of that Act (enforcement of company's filing obligations)
iii
section 41 of the Insolvency Act F131986(enforcement of receiver’s or manager’s duty to make returns), or
iv
section 170 of that Act (corresponding provision for liquidator in winding up),
in respect of any such contravention of or failure to comply with that provision (whether on his own part or on the part of any company).
4
In this section “the court” means any court having jurisdiction to wind up any of the companies in relation to which the offence or other default has been or is alleged to have been committed.
F144A
In this section “the companies legislation” means the Companies Acts and Parts 1 to 7 of the Insolvency Act 1986 (company insolvency and winding up).
5
The maximum period of disqualification under this section is 5 years.
4 Disqualification for fraud, etc., in winding up. C3
1
The court may make a disqualification order against a person if, in the course of the winding up of a company, it appears that he—
a
has been guilty of an offence for which he is liable (whether he has ben convicted or not) under F15section 993 of the Companies Act 2006 (fraudulent trading), or
2
In this section “the court” means any court having jurisdiction to wind up any of the companies in relation to which the offence or other default has been or is alleged to have been committed; and “officer” includes a shadow director.
3
The maximum period of disqualification under this section is 15 years.
5 Disqualification on summary conviction. C4
1
An offence counting for the purposes of this section is one of which a person is convicted (either on indictment or summarily) in consequence of a contravention of, or failure to comply with, any provision of the companies legislation requiring a return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the registrar of companies (whether the contravention or failure is on the person’s own part or on the part of any company).
2
Where a person is convicted of a summary offence counting for those purposes, the court by which he is convicted (or, in England and Wales, any other magistrates’ court acting F17in the same local justice area) may make a disqualification order against him if the circumstances specified in the next subsection are present.
3
Those circumstances are that, during the 5 years ending with the date of the conviction, the person has had made against him, or has been convicted of, in total not less than 3 default orders and offences counting for the purposes of this section; and those offences may include that of which he is convicted as mentioned in subsection (2) and any other offence of which he is convicted on the same occasion.
4
For the purposes of this section—
a
the definition of “summary offence” in Schedule 1 to the M2Interpretation Act 1978 applies for Scotland as for England and Wales, and
b
“default order” means the same as in section 3(3)(b).
F184A
In this section “the companies legislation” means the Companies Acts and Parts 1 to 7 of the Insolvency Act 1986 (company insolvency and winding up).
5
The maximum period of disqualification under this section is 5 years.
Disqualification for unfitness
C6C76 Duty of court to disqualify unfit directors of insolvent companies. C5
1
The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied—
a
that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and
b
that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.
2
For the purposes of this section and the next, a company becomes insolvent if—
a
the company goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up,
F19b
the company enters administration,
c
an administrative receiver of the company is appointed;
and references to a person’s conduct as a director of any company or companies include, where that company or any of those companies has become insolvent, that person’s conduct in relation to any matter connected with or arising out of the insolvency of that company.
F203
In this section and section 7(2), “the court” means—
a
where the company in question is being or has been wound up by the court, that court,
b
where the company in question is being or has been wound up voluntarily, any court which has or (as the case may be) had jurisdiction to wind it up,
F21c
where neither paragraph (a) nor (b) applies but an administrator or administrative receiver has at any time been appointed in respect of the company in question, any court which has jurisdiction to wind it up.
3A
Sections 117 and 120 of the M3Insolvency Act 1986 (jurisdiction) shall apply for the purposes of subsection (3) as if the references in the definitions of “registered office” to the presentation of the petition for winding up were references—
a
in a case within paragraph (b) of that subsection, to the passing of the resolution for voluntary winding up,
F22b
in a case within paragraph (c) of that subsection, to the appointment of the administrator or (as the case may be) administrative receiver.
3B
Nothing in subsection (3) invalidates any proceedings by reason of their being taken in the wrong court; and proceedings—
a
for or in connection with a disqualification order under this section, or
b
in connection with a disqualification undertaking accepted under section 7,
may be retained in the court in which the proceedings were commenced, although it may not be the court in which they ought to have been commenced.
3C
In this section and section 7, “director” includes a shadow director
4
Under this section the minimum period of disqualification is 2 years, and the maximum period is 15 years.
C8C97F23 Disqualification order or undertaking; and reporting provisions.
1
If it appears to the Secretary of State that it is expedient in the public interest that a disqualification order under section 6 should be made against any person, an application for the making of such an order against that person may be made—
a
by the Secretary of State, or
b
if the Secretary of State so directs in the case of a person who is or has been a director of a company which is being F24or has been wound up by the court in England and Wales, by the official receiver.
2
Except with the leave of the court, an application for the making under that section of a disqualification order against any person shall not be made after the end of the period of 2 years beginning with the day on which the company of which that person is or has been a director became insolvent.
F252A
If it appears to the Secretary of State that the conditions mentioned in section 6(1) are satisfied as respects any person who has offered to give him a disqualification undertaking, he may accept the undertaking if it appears to him that it is expedient in the public interest that he should do so (instead of applying, or proceeding with an application, for a disqualification order).
3
If it appears to the office-holder responsible under this section, that is to say—
a
in the case of a company which is being wound up by the court in England and Wales, the official receiver,
b
in the case of a company which is being wound up otherwise, the liquidator,
F26c
in the case of a company which is in administration, the administrator,
d
in the case of a company of which there is an administrative receiver, that receiver,
that the conditions mentioned in section 6(1) are satisfied as respects a person who is or has been a director of that company, the office-holder shall forthwith report the matter to the Secretary of State.
4
The Secretary of State or the official receiver may require the liquidator, administrator or administrative receiver of a company, or the former liquidator, administrator or administrative receiver of a company—
a
to furnish him with such information with respect to any person’s conduct as a director of the company, and
b
to produce and permit inspection of such books, papers and other records relevant to that person’s conduct as such a director,
as the Secretary of State or the official receiver may reasonably require for the purpose of determining whether to exercise, or of exercising, any function of his under this section.
C11C128 Disqualification after investigation of company. C10
F271
If it appears to the Secretary of State from investigative material that it is expedient in the public interest that a disqualification order should be made against a person who is, or has been, a director or shadow director of a company, he may apply to the court for such an order.
1A
“Investigative material” means—
F28a
a report made by inspectors under—
i
section 437 of the Companies Act 1985, or
ii
section 167, 168, 169 or 284 of the Financial Services and Markets Act 2000; and
b
information or documents obtained under—
ii
section 2 of the Criminal Justice Act 1987;
iii
section 28 of the Criminal Law (Consolidation)(Scotland) Act 1995;
iv
section 83 of the Companies Act 1989; or
v
section 165, 171, 172, 173 or 175 of the Financial Services and Markets Act 2000.
2
The court may make a disqualification order against a person where, on an application under this section, it is satisfied that his conduct in relation to the company makes him unfit to be concerned in the management of a company.
F322A
Where it appears to the Secretary of State from such report, information or documents that, in the case of a person who has offered to give him a disqualification undertaking—
a
the conduct of the person in relation to a company of which the person is or has been a director or shadow director makes him unfit to be concerned in the management of a company, and
b
it is expedient in the public interest that he should accept the undertaking (instead of applying, or proceeding with an application, for a disqualification order),
he may accept the undertaking.
3
In this section “the court” means the High Court or, in Scotland, the Court of Session.
4
The maximum period of disqualification under this section is 15 years.
8AF33 Variation etc. of disqualification undertaking.
1
The court may, on the application of a person who is subject to a disqualification undertaking—
a
reduce the period for which the undertaking is to be in force, or
b
provide for it to cease to be in force.
2
On the hearing of an application under subsection (1), the Secretary of State shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.
F342A
Subsection (2) does not apply to an application in the case of an undertaking given under section 9B, and in such a case on the hearing of the application whichever of the OFT or a specified regulator (within the meaning of section 9E) accepted the undertaking—
a
must appear and call the attention of the court to any matters which appear to it or him (as the case may be) to be relevant;
b
may give evidence or call witnesses.
F353
In this section “the court”—
a
in the case of an undertaking given under section 9B means the High Court or (in Scotland) the Court of Session;
b
in any other case has the same meaning as in section 7(2) or 8 (as the case may be).
C14C159 Matters for determining unfitness of directors. C13
1
Where it falls to a court to determine whether a person’s conduct as a director F36. . . or any particular company or companies makes him unfit to be concerned in the management of a company, the court shall, as respects his conduct as a director of that company or, as the case may be, each of those companies, have regard in particular—
a
to the matters mentioned in Part I of Schedule 1 to this Act, and
b
where the company has become insolvent, to the matters mentioned in Part II of that Schedule;
and references in that Schedule to the director and the company are to be read accordingly.
F371A
In determining whether he may accept a disqualification undertaking from any person the Secretary of State shall, as respects the person’s conduct as a director of any company concerned, have regard in particular—
a
to the matters mentioned in Part I of Schedule 1 to this Act, and
b
where the company has become insolvent, to the matters mentioned in Part II of that Schedule;
and references in that Schedule to the director and the company are to be read accordingly.
2
Section 6(2) applies for the purposes of this section and Schedule 1 as it applies for the purposes of sections 6 and 7 F38and in this section and that Schedule “director” includes a shadow director.
3
F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The Secretary of State may by order modify any of the provisions of Schedule 1; and such an order may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.
5
The power to make orders under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
F44Disqualification for competition infringements
9A Competition disqualification order
1
The court must make a disqualification order against a person if the following two conditions are satisfied in relation to him.
2
The first condition is that an undertaking which is a company of which he is a director commits a breach of competition law.
3
The second condition is that the court considers that his conduct as a director makes him unfit to be concerned in the management of a company.
4
An undertaking commits a breach of competition law if it engages in conduct which infringes any of the following—
a
the Chapter 1 prohibition (within the meaning of the Competition Act 1998) (prohibition on agreements, etc. preventing, restricting or distorting competition);
b
the Chapter 2 prohibition (within the meaning of that Act) (prohibition on abuse of a dominant position);
c
F109Article 101 of the Treaty on the Functioning of the European Union (prohibition on agreements, etc. preventing, restricting or distorting competition);
d
F110Article 102 of that Treaty (prohibition on abuse of a dominant position).
5
For the purpose of deciding under subsection (3) whether a person is unfit to be concerned in the management of a company the court—
a
must have regard to whether subsection (6) applies to him;
b
may have regard to his conduct as a director of a company in connection with any other breach of competition law;
c
must not have regard to the matters mentioned in Schedule 1.
6
This subsection applies to a person if as a director of the company—
a
his conduct contributed to the breach of competition law mentioned in subsection (2);
b
his conduct did not contribute to the breach but he had reasonable grounds to suspect that the conduct of the undertaking constituted the breach and he took no steps to prevent it;
c
he did not know but ought to have known that the conduct of the undertaking constituted the breach.
7
For the purposes of subsection (6)(a) it is immaterial whether the person knew that the conduct of the undertaking constituted the breach.
8
For the purposes of subsection (4)(a) or (c) references to the conduct of an undertaking are references to its conduct taken with the conduct of one or more other undertakings.
9
The maximum period of disqualification under this section is 15 years.
10
An application under this section for a disqualification order may be made by the OFT or by a specified regulator.
11
Section 60 of the Competition Act 1998 (c. 41) (consistent treatment of questions arising under United Kingdom and F40EU law) applies in relation to any question arising by virtue of subsection (4)(a) or (b) above as it applies in relation to any question arising under Part 1 of that Act.
9B Competition undertakings
1
This section applies if—
a
the OFT or a specified regulator thinks that in relation to any person an undertaking which is a company of which he is a director has committed or is committing a breach of competition law,
b
the OFT or the specified regulator thinks that the conduct of the person as a director makes him unfit to be concerned in the management of a company, and
c
the person offers to give the OFT or the specified regulator (as the case may be) a disqualification undertaking.
2
The OFT or the specified regulator (as the case may be) may accept a disqualification undertaking from the person instead of applying for or proceeding with an application for a disqualification order.
3
A disqualification undertaking is an undertaking by a person that for the period specified in the undertaking he will not—
a
be a director of a company;
b
act as receiver of a company’s property;
c
in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company;
d
act as an insolvency practitioner.
4
But a disqualification undertaking may provide that a prohibition falling within subsection (3)(a) to (c) does not apply if the person obtains the leave of the court.
5
The maximum period which may be specified in a disqualification undertaking is 15 years.
6
If a disqualification undertaking is accepted from a person who is already subject to a disqualification undertaking under this Act or to a disqualification order the periods specified in those undertakings or the undertaking and the order (as the case may be) run concurrently.
7
Subsections (4) to (8) of section 9A apply for the purposes of this section as they apply for the purposes of that section but in the application of subsection (5) of that section the reference to the court must be construed as a reference to the OFT or a specified regulator (as the case may be).
9C Competition investigations
1
If the OFT or a specified regulator has reasonable grounds for suspecting that a breach of competition law has occurred it or he (as the case may be) may carry out an investigation for the purpose of deciding whether to make an application under section 9A for a disqualification order.
2
For the purposes of such an investigation sections 26 to 30 of the Competition Act 1998 (c. 41) apply to the OFT and the specified regulators as they apply to the OFT for the purposes of an investigation under section 25 of that Act.
3
Subsection (4) applies if as a result of an investigation under this section the OFT or a specified regulator proposes to apply under section 9A for a disqualification order.
4
Before making the application the OFT or regulator (as the case may be) must—
a
give notice to the person likely to be affected by the application, and
b
give that person an opportunity to make representations.
9D Co-ordination
1
The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under sections 9A to 9C (relevant functions) which are exercisable concurrently by two or more persons.
2
Section 54(5) to (7) of the Competition Act 1998 (c. 41) applies to regulations made under this section as it applies to regulations made under that section and for that purpose in that section—
a
references to Part 1 functions must be read as references to relevant functions;
b
references to a regulator must be read as references to a specified regulator;
c
a competent person also includes any of the specified regulators.
3
The power to make regulations under this section must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
4
Such a statutory instrument may—
a
contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks appropriate;
b
make different provision for different cases.
9E Interpretation
1
This section applies for the purposes of sections 9A to 9D.
2
Each of the following is a specified regulator for the purposes of a breach of competition law in relation to a matter in respect of which he or it has a function—
F41a
the Office of Communications;
b
the Gas and Electricity Markets Authority;
F42c
the Water Services Regulation Authority;
d
F43Office of Rail Regulation;
e
the Civil Aviation AuthorityF113;
f
Monitor.
3
The court is the High Court or (in Scotland) the Court of Session.
4
Conduct includes omission.
5
Director includes shadow director.
Other cases of disqualification
C17C1810 Participation in wrongful trading. C16
1
Where the court makes a declaration under section 213 or 214 of the Insolvency Act F451986 that a person is liable to make a contribution to a company’s assets, then, whether or not an application for such an order is made by any person, the court may, if it thinks fit, also make a disqualification order against the person to whom the declaration relates.
2
The maximum period of disqualification under this section is 15 years.
11C19 Undischarged bankrupts.
F461
It is an offence for a person to act as director of a company or directly or indirectly to take part in or be concerned in the promotion, formation or management of a company, without the leave of the court, at a time when—
a
he is an undischarged bankrupt,
F47aa
a moratorium period under a debt relief order applies in relation to him, or
b
a bankruptcy restrictions order F48or a debt relief restrictions order is in force in respect of him.
F1112
For this purpose, the court is—
a
in the case of a person adjudged bankrupt or, in Scotland, whose estate was sequestrated, the court by which the person was adjudged bankrupt or sequestration of the person’s estate was awarded,
b
in the case of a person in respect of whom a court made a debt relief restrictions order (under Schedule 4ZB of the Insolvency Act 1986), the court by which the order was made, and
c
in the case of any other person, the court to which the person would make an application under section 251M(1) of the Insolvency Act 1986 (if the person were dissatisfied as mentioned there).
3
In England and Wales, the leave of the court shall not be given unless notice of intention to apply for it has been served on the official receiver; and it is the latter’s duty, if he is of opinion that it is contrary to the public interest that the application should be granted, to attend on the hearing of the application and oppose it.
F494
In this section “company” includes a company incorporated outside Great Britain that has an established place of business in Great Britain.
12 Failure to pay under county court administration order.
1
The following has effect where a court under section 429 of the Insolvency Act revokes an administration order under Part VI of the M4County Courts Act 1984.
C202
A person to whom that section applies by virtue of the order under section 429(2)(b) shall not, except with the leave of the court which made the order, act as director or liquidator of, or directly or indirectly take part or be concerned in the promotion, formation or management of, a company.
12AF50 Northern Irish disqualification orders.
A person subject to a disqualification order under F51the Company Directors Disqualification (Northern Ireland) Order 2002—
a
shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the High Court of Northern Ireland, and
b
shall not act as an insolvency practitioner.
12BF52Northern Irish disqualification undertakings
A person subject to a disqualification undertaking under the Company Directors Disqualification (Northern Ireland) Order 2002–
a
shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the High Court of Northern Ireland, and
b
shall not act as an insolvency practitioner.
Consequences of contravention
13 Criminal penalties.
—If a person acts in contravention of a disqualification order or F53disqualification undertaking or in contravention of section 12(2) F54, 12A or 12B, or is guilty of an offence under section 11, he is liable—
a
on conviction on indictment, to imprisonment for not more than 2 years or a fine, or both; and
b
on summary conviction, to imprisonment for not more than 6 months or a fine not exceeding the statutory maximum, or both.
14 Offences by body corporate.
1
Where a body corporate is guilty of an offence of acting in contravention of a disqualification order F55or disqualification undertaking or in contravention of section 12AF56or 12B, and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.
2
Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
C22C2315 Personal liability for company’s debts where person acts while disqualified. C21
1
A person is personally responsible for all the relevant debts of a company if at any time—
a
F59b
as a person who is involved in the management of the company, he acts or is willing to act on instructions given without the leave of the court by a person whom he knows at that time—
i
to be the subject of a disqualification order made or disqualification undertaking accepted under this Act or under the Company Directors Disqualification (Northern Ireland) Order 2002, or
ii
to be an undischarged bankrupt.
2
Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable.
3
For the purposes of this section the relevant debts of a company are—
a
in relation to a person who is personally responsible under paragraph (a) of subsection (1), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company, and
b
in relation to a person who is personally responsible under paragraph (b) of that subsection, such debts and other liabilities of the company as are incurred at a time when that person was acting or was willing to act on instructions given as mentioned in that paragraph.
4
For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.
F605
For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given without the leave of the court by a person whom he knew at that time—
a
to be the subject of a disqualification order made or disqualification undertaking accepted under this Act or under the Company Directors Disqualification (Northern Ireland) Order 2002, or
b
to be an undischarged bankrupt,
is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.
Supplementary provisions
16 Application for disqualification order. C24
1
A person intending to apply for the making of a disqualification order by the court having jurisdiction to wind up a company shall give not less than 10 days’ notice of his intention to the person against whom the order is sought; and on the hearing of the application the last-mentioned person may appear and himself give evidence or call witnesses.
2
An application to a court with jurisdiction to wind up companies for the making against any person of a disqualification order under any of sections 2 to F614 may be made by the Secretary of State or the official receiver, or by the liquidator or any past or present member or creditor of any company in relation to which that person has committed or is alleged to have committed an offence or other default.
3
On the hearing of any application under this Act made by F62a person falling within subsection (4), the applicant shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.
F634
The following fall within this subsection—
a
the Secretary of State;
b
the official receiver;
c
the OFT;
d
the liquidator;
e
a specified regulator (within the meaning of section 9E).
17F64 Application for leave under an order or undertaking.
1
Where a person is subject to a disqualification order made by a court having jurisdiction to wind up companies, any application for leave for the purposes of section 1(1)(a) shall be made to that court.
2
Where—
a
a person is subject to a disqualification order made under section 2 by a court other than a court having jurisdiction to wind up companies, or
b
a person is subject to a disqualification order made under section 5,
any application for leave for the purposes of section 1(1)(a) shall be made to any court which, when the order was made, had jurisdiction to wind up the company (or, if there is more than one such company, any of the companies) to which the offence (or any of the offences) in question related.
3
Where a person is subject to a disqualification undertaking accepted at any time under section 7 or 8, any application for leave for the purposes of section 1A(1)(a) shall be made to any court to which, if the Secretary of State had applied for a disqualification order under the section in question at that time, his application could have been made.
F653A
Where a person is subject to a disqualification undertaking accepted at any time under section 9B any application for leave for the purposes of section 9B(4) must be made to the High Court or (in Scotland) the Court of Session.
4
But where a person is subject to two or more disqualification orders or undertakings (or to one or more disqualification orders and to one or more disqualification undertakings), any application for leave for the purposes of section 1(1)(a) F661A(1)(a) or 9B(4) shall be made to any court to which any such application relating to the latest order to be made, or undertaking to be accepted, could be made.
5
On the hearing of an application for leave for the purposes of section 1(1)(a) or 1A(1)(a), the Secretary of State shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.
F676
Subsection (5) does not apply to an application for leave for the purposes of section 1(1)(a) if the application for the disqualification order was made under section 9A.
7
In such a case and in the case of an application for leave for the purposes of section 9B(4) on the hearing of the application whichever of the OFT or a specified regulator (within the meaning of section 9E) applied for the order or accepted the undertaking (as the case may be)—
a
must appear and draw the attention of the court to any matters which appear to it or him (as the case may be) to be relevant;
b
may give evidence or call witnesses.
18F68 Register of disqualification orders and undertakings.
1
The Secretary of State may make regulations requiring officers of courts to furnish him with such particulars as the regulations may specify of cases in which—
a
a disqualification order is made, or
b
any action is taken by a court in consequence of which such an order F69or a disqualification undertaking is varied or ceases to be in force, or
c
leave is granted by a court for a person subject to such an order to do any thing which otherwise the order prohibits him from doing; F70or
d
leave is granted by a court for a person subject to such an undertaking to do anything which otherwise the undertaking prohibits him from doing
and the regulations may specify the time within which, and the form and manner in which, such particulars are to be furnished.
C25C262
The Secretary of State shall, from the particulars so furnished, continue to maintain the register of orders, and of cases in which leave has been granted as mentioned in subsection (1)(c) F71....
C27F722A
The Secretary of State must include in the register such particulars as he considers appropriate of—
a
disqualification undertakings accepted by him under section 7 or 8;
b
disqualification undertakings accepted by the OFT or a specified regulator under section 9B;
c
cases in which leave has been granted as mentioned in subsection (1)(d).
C283
When an order F73or undertaking of which entry is made in the register ceases to be in force, the Secretary of State shall delete the entry from the register and all particulars relating to it which have been furnished to him under this section or any previous corresponding provision F73and, in the case of a disqualification undertaking, any other particulars he has included in the register.
4
The register shall be open to inspection on payment of such fee as may be specified by the Secretary of State in regulations.
F744A
Regulations under this section may extend the preceding provisions of this section, to such extent and with such modifications as may be specified in the regulations, to disqualification orders F75... F76or disqualification undertakings made under the Company Directors Disqualification (Northern Ireland) Order 2002.
5
Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
19 Special savings from repealed enactments.
Schedule 2 to this Act has effect—
a
in connection with certain transitional cases arising under sections 93 and 94 of the M5Companies Act 1981, so as to limit the power to make a disqualification order, or to restrict the duration of an order, by reference to events occurring or things done before those sections came into force,
b
to preserve orders made under section 28 of the Companies Act 1976 (repealed by the Act of 1981), and
Miscellaneous and general
C32C3320 Admissibility in evidence of statements. C31
F771
In any proceedings (whether or not under this Act), any statement made in pursuance of a requirement imposed by or under sections 6 to 10, 15 or 19(c) of, or Schedule 1 to, this Act, or by or under rules made for the purposes of this Act under the Insolvency Act F781986, may be used in evidence against any person making or concurring in making the statement.
F792
However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—
a
no evidence relating to the statement may be adduced, and
b
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
3
Subsection (2) applies to any offence other than—
a
an offence which is—
i
created by rules made for the purposes of this Act under the Insolvency Act F801986, and
ii
designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;
b
an offence which is—
i
created by regulations made under any such rules, and
ii
designated for the purposes of this subsection by such regulations;
c
an offence under section 5 of the M6Perjury Act 1911 (false statements made otherwise than on oath); or
d
an offence under section 44(2) of the M7Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath).
4
Regulations under subsection (3)(a)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
20AF103Legal professional privilege
In proceedings against a person for an offence under this Act nothing in this Act is to be taken to require any person to disclose any information that he is entitled to refuse to disclose on grounds of legal professional privilege (in Scotland, confidentiality of communications).
21 Interaction with Insolvency Act F811986 .
1
References in this Act to the official receiver, in relation to the winding up of a company or the bankruptcy of an individual, are to any person who, by virtue of section 399 of the Insolvency Act F821986 , is authorised to act as the official receiver in relation to that winding up or bankruptcy; and, in accordance with section 401(2) of that Act, references in this Act to an official receiver includes a person appointed as his deputy.
2
Sections F831A 6 to 10 F8313, 14, 15, 19(c) and 20 of, and Schedule 1 to, this Act F83and sections 1 and 17 of this Act as they apply for the purposes of those provisions are deemed included in Parts I to VII of the Insolvency Act F821986 for the purposes of the following sections of that Act—
section 411 (power to make insolvency rules);
section 414 (fees orders);
section 420 (orders extending provisions about insolvent companies to insolvent partnerships);
section 422 (modification of such provisions in their application to recognised banks); . . . F84
3
F864
For the purposes of summary proceedings in Scotland, section 431 of that Act applies to summary proceedings for an offence under section 11 or 13 of this Act as it applies to summary proceedings for an offence under Parts I to VII of the Act.
21AF104Bank insolvency
Section 121 of the Banking Act 2009 provides for this Act to apply in relation to bank insolvency as it applies in relation to liquidation.
21BF105Bank administration
Section 155 of the Banking Act 2009 provides for this Act to apply in relation to bank administration as it applies in relation to liquidation.
21CF106Building society insolvency and special administration
Section 90E of the Building Societies Act 1986 provides for this Act to apply in relation to building society insolvency and building society special administration as it applies in relation to liquidation.
22 Interpretation. C34
1
This section has effect with respect to the meaning of expressions used in this Act, and applies unless the context otherwise requires.
F872
“Company” means—
a
a company registered under the Companies Act 2006 in Great Britain, or
b
a company that may be wound up under Part 5 of the Insolvency Act 1986 (unregistered companies).
3
Section 247 in Part VII of the Insolvency Act F881986(interpretation for the first Group of Parts of that Act) applies as regards references to a company’s insolvency and to its going into liquidation; and “administrative receiver” has the meaning given by section 251 of that Act F89and references to acting as an insolvency practitioner are to be read in accordance with section 388 of that Act.
4
“Director” includes any person occupying the position of director, by whatever name called F90. . ..
5
“Shadow director”, in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act (but so that a person is not deemed a shadow director by reason only that the directors act on advice given by him in a professional capacity).
F916
“Body corporate” and “officer” have the same meaning as in the Companies Acts (see section 1173(1) of the Companies Act 2006).
F927
“The Companies Acts” has the meaning given by section 2(1) of the Companies Act 2006.
F938
Any reference to provisions, or a particular provision, of the Companies Acts or the Insolvency Act 1986 includes the corresponding provisions or provision of corresponding earlier legislation.
F949
Subject to the provisions of this section, expressions that are defined for the purposes of the Companies Acts F95(see section 1174 of, and Schedule 8 to, the Companies Act 2006) have the same meaning in this Act.
F9610
Any reference to acting as receiver—
a
includes acting as manager or as both receiver and manager, but
b
does not include acting as administrative receiver;
and “receivership” is to be read accordingly.
22AF97 Application of Act to building societies.
1
This Act applies to building societies as it applies to companies.
2
References in this Act to a company, or to a director or an officer of a company include, respectively, references to a building society within the meaning of the Building Societies Act 1986 or to a director or officer, within the meaning of that Act, of a building society.
3
In relation to a building society the definition of “shadow director” in section 22(5) applies with the substitution of “building society” for “company”.
4
In the application of Schedule 1 to the directors of a building society, references to provisions of F98the Companies Act 2006 or the Insolvency Act 1986 include references to the corresponding provisions of the Building Societies Act 1986.
22BF99Application of Act to incorporated friendly societies.
1
This Act applies to incorporated friendly societies as it applies to companies.
2
References in this Act to a company, or to a director or an officer of a company include, respectively, references to an incorporated friendly society within the meaning of the Friendly Societies Act 1992 or to a member of the committee of management or officer, within the meaning of that Act, of an incorporated friendly society.
3
In relation to an incorporated friendly society every reference to a shadow director shall be omitted.
4
In the application of Schedule 1 to the members of the committee of management of an incorporated friendly society, references to provisions of F100the Companies Act 2006 or the Insolvency Act 1986 include references to the corresponding provisions of the Friendly Societies Act 1992.
22CF107Application of Act to NHS foundation trusts
1
This Act applies to NHS foundation trusts as it applies to companies within the meaning of this Act.
2
References in this Act to a company, or to a director or officer of a company, include, respectively, references to an NHS foundation trust or to a director or officer of the trust; but references to shadow directors are omitted.
3
22DF108Application of Act to open-ended investment companies
1
This Act applies to open-ended investment companies with the following modifications.
2
In section 8(1) (disqualification after investigation), the reference to investigative material shall be read as including a report made by inspectors under regulations made by virtue of section 262(2)(k) of the Financial Services and Markets Act 2000.
3
In the application of Part 1 of Schedule 1 (matters for determining unfitness of directors: matters applicable in all cases) in relation to a director of an open-ended investment company, a reference to a provision of the Companies Act 2006 is to be taken to be a reference to the corresponding provision of the Open-Ended Investment Companies Regulations 2001 or of rules made under regulation 6 of those Regulations.
4
In this section “open-ended investment company” has the meaning given by section 236 of the Financial Services and Markets Act 2000.
22FF112Application of Act to charitable incorporated organisations
1
This Act applies to charitable incorporated organisations (“CIOs”) as it applies to companies.
2
Accordingly, in this Act—
a
references to a company are to be read as including references to a CIO;
b
references to a director or an officer of a company are to be read as including references to a charity trustee of a CIO; and
c
any reference to the Insolvency Act 1986 is to be read as including a reference to that Act as it applies to CIOs.
3
As they apply in relation to CIOs, the provisions of this Act have effect with the following modifications—
a
in section 2(1), the reference to striking off is to be read as including a reference to dissolution;
b
in section 4(1)(a), the reference to an offence under section 993 of the Companies Act 2006 is to be read as including a reference to an offence under regulation 60 of the Charitable Incorporated Organisations (General) Regulations 2012(fraudulent trading);
c
sections 9A to 9E are to be disregarded;
d
references to any of sections 9A to 9E are to be disregarded;
e
references to a shadow director are to be disregarded.
4
In the application of Schedule 1 to the charity trustees of a CIO, references to the provisions of the Companies Act 2006 are to be read as including references to the corresponding provisions (if any) of the Charities Act 2011 and regulations made under that Act.
5
In this section “charity trustees” has the meaning given by section 177 of the Charities Act 2011.
23 Transitional provisions, savings, repeals.
1
The transitional provisions and savings in Schedule 3 to this Act have effect, and are without prejudice to anything in the M8Interpretation Act 1978 with regard to the effect of repeals.
2
The enactments specified in the second column of Schedule 4 to this Act are repealed to the extent specified in the third column of that Schedule.
24 Extent.
1
This Act extends to England and Wales and to Scotland.
2
Nothing in this Act extends to Northern Ireland.
25 Commencement.
This Act comes into force simultaneously with the Insolvency Act 1986.
26 Citation.
This Act may be cited as the Company Directors Disqualification Act 1986.
Ss. 9A-9E and cross-heading inserted (20.6.2003) by 2002 c. 40, ss. 204(2), 279; S.I. 2003/1397, art. 2, Sch.