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Rating (Coronavirus) And Directors Disqualification (Dissolved Companies) Act 2021

Contents

Legal background

Determinations in respect of certain non-domestic rating lists

  1. Part 3 of the Local Government Finance Act 1988 ("the 1988 Act") concerns non-domestic rating. Sections 41 and 52 of the 1988 Act require new local and central rating lists to be compiled and maintained by Valuation Officers. Sections 42 and 53 require those rating lists to show hereditaments and their rateable values. Section 64 concerns the meaning of a hereditament and Schedule 6 concerns the determination of rateable values.

Investigation and disqualification of former directors of dissolved companies

  1. Provisions for the investigation of companies and company directors are found in the Insolvency Act 1986 (IA86), the Companies Act 1985 (CA85), and the Company Directors Disqualification Act 1986 (CDDA86) for Great Britain.
  2. For Northern Ireland, similar provisions are in the Insolvency (Northern Ireland) Order 1989 (I(NI)O89) and the Company Directors Disqualification (Northern Ireland) Order 2002 (CDD(NI)O02). Investigative powers in CA85 extend to Northern Ireland.
  3. Provisions in IA86 and I(NI)O89 relate to the duty of the official receiver to investigate the affairs of companies subject to compulsory winding-up proceedings, and are found in section 132 of that Act and Article 112 of that Order respectively.
  4. Section 447 of CA85 contains a power for the Secretary of State to direct a company to produce such documents and information as are required, and to authorise an investigator to make those requirements. In this way the affairs of live companies may be investigated. If an investigation reveals that the conduct of a director has fallen below expected standards then an application for disqualification may be made under section 8 of CDDA86 or Article 11 of CDD(NI)O02, if this is in the public interest. As an alternative the Secretary of State has the power to petition the court that the company be wound up in the public interest, under section 124A IA86, in which case disqualification proceedings could be brought under section 6 CDDA86 if the court made a winding-up order and the company’s assets were insufficient to meet its liabilities and the expenses of the winding up. A similar power for the Department exists in Article 104A of the I(NI)O89, which would allow disqualification proceedings to be brought under Article 9.
  5. Both section 6 of CDDA and Article 9 of CDD(NI)O02, specify that the court has a duty to make a disqualification order where an application is made, if it is satisfied that the person has been a director of a company which has at any time become insolvent, and that their conduct makes them unfit to be concerned in the management of a company.
  6. In Great Britain section 7(1) of CDDA provides the Secretary of State with the power to make an application for a disqualification order under section 6. The official receiver may also make an application for disqualification under this subsection, but only in the case of a company subject to compulsory liquidation proceedings, and only if directed to do so by the Secretary of State. Section 7(2A) allows the Secretary of State to accept a disqualification undertaking if it is offered, and it is expedient in the public interest that they should do so. Similar provisions, giving the Department the power to make an application for a disqualification order, to direct the official receiver to do so under certain circumstances, and to accept disqualification undertakings, are prescribed by Article 10 of the CDD(NI)O02.
  7. Section 7(4) CDDA86 provides the Secretary of State and the official receiver with a power to require a person to provide information and documents which relate to any person’s conduct as a director of an insolvent company, and so provides the power to investigate conduct in those circumstances. The equivalent power in Article 10(5) of the CDD(NI)O02 allows for the Department to require similar information and documents from the current or former liquidator, administrator, or administrative receiver of the company.
  8. Sections 8ZA and 8ZB of CDDA86 allow the Secretary of State to make an application to the court (or where appropriate to direct the official receiver to make such an application) for a disqualification order to be made against a person from whom a disqualified director of an insolvent company was accustomed to receive instructions, or who was influenced by that person in their conduct as a director. There is an equivalent power for the Department in Articles 11A and 11B of the CDD(NI)O02.
  9. Section 15A of CDDA86 allows the Secretary of State to seek compensation from a director who has been disqualified under any section of CDDA86 (whether they are subject to a disqualification order or undertaking), where it can be shown that the conduct for which they were disqualified led to losses to creditors of an insolvent company of which they were a director at any time. Compensation may be sought by way of an application to the court by the Secretary of State for an order under section 15A(1) CDDA86, or the Secretary of State may accept an undertaking from the disqualified director to pay compensation, under section 15A(2). Similar provisions exist in Article 19A of the CDD(NI)O02.

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