Persons instructing unfit directors

Order disqualifying person instructing unfit director of insolvent company11A

1

The High Court may make a disqualification order against a person (“P”) if, on an application under Article 11B, it is satisfied—

a

either—

i

that a disqualification order under Article 9 has been made against a person who is or has been a director (but not a shadow director) of a company, or

ii

that the Department has accepted a disqualification undertaking from such a person under Article 10(3), and

b

that P exercised the requisite amount of influence over the person.

That person is referred to in this Article as “the main transgressor”.

2

For the purposes of this Article, P exercised the requisite amount of influence over the main transgressor if any of the conduct—

a

for which the main transgressor is subject to the order made under Article 9, or

b

in relation to which the undertaking was accepted from the main transgressor under Article 10(3),

was the result of the main transgressor acting in accordance with P's directions or instructions.

3

But P does not exercise the requisite amount of influence over the main transgressor by reason only that the main transgressor acts on advice given by P in a professional capacity.

4

Under this Article the minimum period of disqualification is 2 years and the maximum period is 15 years.

Application for order under Article 11A11B

1

If it appears to the Department that it is expedient in the public interest that a disqualification order should be made against a person under Article 11A, the Department may—

a

make an application to the High Court for such an order, or

b

in a case where an application for an order under Article 9 against the main transgressor has been made by the official receiver, direct the official receiver to make such an application.

2

Except with the leave of the High Court, an application for a disqualification order under Article 11A must not be made after the end of the period of 3 years beginning with the day on which the company in question became insolvent (within the meaning given by Article 9(2)).

3

Paragraph (5) of Article 10 applies for the purposes of this Article as it applies for the purposes of that Article.

Disqualification undertaking instead of an order under Article 11A11C

1

If it appears to the Department that it is expedient in the public interest to do so, the Department may accept a disqualification undertaking from a person (“P”) if—

a

any of the following is the case—

i

a disqualification order under Article 9 has been made against a person who is or has been a director (but not a shadow director) of a company,

ii

the Department has accepted a disqualification undertaking from such a person under Article 10(3), or

iii

it appears to the Department that such an undertaking could be accepted from such a person (if one were offered), and

b

it appears to the Department that P exercised the requisite amount of influence over the person.

That person is referred to in this Article as “the main transgressor”.

2

For the purposes of this Article, P exercised the requisite amount of influence over the main transgressor if any of the conduct—

a

for which the main transgressor is subject to the disqualification order made under Article 9,

b

in relation to which the disqualification undertaking was accepted from the main transgressor under Article 10(3), or

c

which led the Department to the conclusion set out in paragraph (1)(a)(iii),

was the result of the main transgressor acting in accordance with P's directions or instructions.

3

But P does not exercise the requisite amount of influence over the main transgressor by reason only that the main transgressor acts on advice given by P in a professional capacity.

4

Paragraph (5) of Article 10 applies for the purposes of this Article as it applies for the purposes of that Article.

Order disqualifying person instructing unfit director: other cases11D

1

The High Court may make a disqualification order against a person (“P”) if, on an application under this Article, it is satisfied—

a

either—

i

that a disqualification order under Article 11 has been made against a person who is or has been a director (but not a shadow director) of a company, or

ii

that the Department has accepted a disqualification undertaking from such a person under Article 11(3), and

b

that P exercised the requisite amount of influence over the person.

That person is referred to in this Article as “the main transgressor”.

2

The Department may make an application to the High Court for a disqualification order against P under this Article if it appears to the Department that it is expedient in the public interest for such an order to be made.

3

For the purposes of this Article, P exercised the requisite amount of influence over the main transgressor if any of the conduct—

a

for which the main transgressor is subject to the order made under Article 11, or

b

in relation to which the undertaking was accepted from the main transgressor under Article 11(3),

was the result of the main transgressor acting in accordance with P's directions or instructions.

4

But P does not exercise the requisite amount of influence over the main transgressor by reason only that the main transgressor acts on advice given by P in a professional capacity.

5

Under this Article the maximum period of disqualification is 15 years.

Disqualification undertaking instead of an order under Article 11D11E

1

If it appears to the Department that it is expedient in the public interest to do so, the Department may accept a disqualification undertaking from a person (“P”) if—

a

any of the following is the case—

i

a disqualification order under Article 11 has been made against a person who is or has been a director (but not a shadow director) of a company,

ii

the Department has accepted a disqualification undertaking from such a person under Article 11(3), or

iii

it appears to the Department that such an undertaking could be accepted from such a person (if one were offered), and

b

it appears to the Department that P exercised the requisite amount of influence over the person.

That person is referred to in this Article as “the main transgressor”.

2

For the purposes of this Article, P exercised the requisite amount of influence over the main transgressor if any of the conduct—

a

for which the main transgressor is subject to the disqualification order made under Article 11,

b

in relation to which the disqualification undertaking was accepted from the main transgressor under Article 11(3), or

c

which led the Department to the conclusion set out in paragraph (1)(a)(iii),

was the result of the main transgressor acting in accordance with P's directions or instructions.

3

But P does not exercise the requisite amount of influence over the main transgressor by reason only that the main transgressor acts on advice given by P in a professional capacity.