The Companies (Disqualification Orders) Regulations 2009

Statutory Instruments

2009 No. 2471

Companies

The Companies (Disqualification Orders) Regulations 2009

Made

8th September 2009

Laid before Parliament

9th September 2009

Coming into force

1st October 2009

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 18 of the Company Directors Disqualification Act 1986(1):

Citation and commencement

1.  These Regulations may be cited as the Companies (Disqualification Orders) Regulations 2009 and come into force on 1st October 2009.

Definitions

2.—(1) In these Regulations—

“the Act” means the Company Directors Disqualification Act 1986;

“disqualification order” means an order of the court under any of sections 2 to 6, 8, 9A and 10 of the Act;

“disqualification undertaking” means an undertaking accepted by the Secretary of State under section 7, 8 or 9B of the Act;

“grant of leave” means a grant by the court of leave under section 17 of the Act to any person in relation to a disqualification order or a disqualification undertaking.

(2) For the purposes of regulations 5 and 9, “leave granted”—

(a) in relation to a disqualification order granted under Part 2 of the Companies (Northern Ireland) Order 1989(2) means leave granted by a court for a person subject to such an order to do anything which otherwise the order prohibits that person from doing; and

(b) in relation to a disqualification undertaking accepted under the Company Directors Disqualification (Northern Ireland) Order 2002(3) means leave granted by a court for a person subject to such an undertaking to do anything which otherwise the undertaking prohibits that person from doing.

Revocations

3.  The following instruments are revoked—

(a) the Companies (Disqualification Orders) Regulations 2001(4);

(b) the Companies (Disqualification Orders) (Amendment No. 2) Regulations 2002(5); and

(c) the Companies (Disqualification Orders) (Amendment) Regulations 2004(6).

Transitional provisions

4.  Other than regulation 9, these Regulations apply—

(a) in relation to a disqualification order made after the coming into force of these Regulations; and

(b) in relation to—

(i) a grant of leave made after the coming into force of these Regulations; or

(ii) any action taken by a court after the coming into force of these Regulations in consequence of which a disqualification order or a disqualification undertaking is varied or ceases to be in force,

whether the disqualification order or disqualification undertaking to which the grant of leave or the action relates was made by the court or accepted by the Secretary of State before or after the coming into force of these Regulations.

5.  Regulation 9 applies to—

(a) particulars of disqualification orders made and leave granted under Part 2 of the Companies (Northern Ireland) Order 1989 received by the Secretary of State on or after 1st October 2009 other than particulars of disqualification orders made and leave granted under that Order which relate to disqualification orders made by the courts of Northern Ireland before 2nd April 2001; and

(b) particulars of undertakings accepted under the Company Directors Disqualification (Northern Ireland) Order 2002 on or after 1st October 2009, and to leave granted under that Order in relation to such undertakings.

Particulars to be furnished by officers of the court

6.—(1) The following officers of the court must furnish to the Secretary of State the particulars specified in regulation 7(a) to (c) in the form and manner there specified—

(a) where a disqualification order is made by the Crown Court, the Court Manager;

(b) where a disqualification order or grant of leave is made by the High Court, the Court Manager;

(c) where a disqualification order or grant of leave is made by a County Court, the Court Manager;

(d) where a disqualification order is made by a Magistrates’ Court, the designated officer for a Magistrates’ Court;

(e) where a disqualification order is made by the High Court of Justiciary, the Deputy Principal Clerk of Justiciary;

(f) where a disqualification order or grant of leave is made by a Sheriff Court, the Sheriff Clerk;

(g) where a disqualification order or grant of leave is made by the Court of Session, the Deputy Principal Clerk of Session;

(h) where a disqualification order or grant of leave is made by the Court of Appeal, the Court Manager; and

(i) where a disqualification order or grant of leave is made by the Supreme Court, the Registrar of the Supreme Court.

(2) Where—

(a) a disqualification order has been made by any of the courts mentioned in paragraph (1), or

(b) a disqualification undertaking has been accepted by the Secretary of State,

and subsequently any action is taken by a court in consequence of which that order or that undertaking is varied or ceases to be in force, the officer specified in paragraph (1) of the court which takes such action must furnish to the Secretary of State the particulars specified in regulation 7(d) in the form and manner there specified.

7.  The form in which the particulars are to be furnished is—

(a) that set out in Schedule 1 to these Regulations with such variations as circumstances require when the person against whom the disqualification order is made is an individual, and the particulars contained therein are the particulars specified for that purpose;

(b) that set out in Schedule 2 to these Regulations with such variations as circumstances require when the person against whom the disqualification order is made is a body corporate, and the particulars contained therein are the particulars specified for that purpose;

(c) that set out in Schedule 3 to these Regulations with such variations as circumstances require when a grant of leave is made by the court in relation to a disqualification order or a disqualification undertaking, and the particulars contained therein are the particulars specified for that purpose;

(d) that set out in Schedule 4 to these Regulations with such variations as circumstances require when any action is taken by a court in consequence of which a disqualification order or a disqualification undertaking is varied or ceases to be in force, and the particulars contained therein are the particulars specified for that purpose.

8.  The time within which the officer specified in regulation 6(1) is to furnish the Secretary of State with the said particulars is the period of 14 days beginning with the day on which the disqualification order or grant of leave is made or on which action is taken by a court in consequence of which the disqualification order or disqualification undertaking is varied or ceases to be in force.

Extension of certain of the provisions of section 18 of the Act to orders made, undertakings accepted and leave granted in Northern Ireland

9.—(1) Section 18(2) of the Act is extended to the particulars furnished to the Secretary of State of disqualification orders made and leave granted under Part 2 of the Companies (Northern Ireland) Order 1989.

(2) Section 18(2A) of the Act is extended to the particulars of disqualification undertakings accepted under and leave granted in relation to disqualification undertakings under the Company Directors Disqualification (Northern Ireland) Order 2002.

(3) Section 18(3) of the Act is extended to all entries in the register and particulars relating to them furnished to the Secretary of State in respect of orders made under Part 2 of the Companies (Northern Ireland) Order 1989 or disqualification undertakings accepted under the Company Directors Disqualification (Northern Ireland) Order 2002.

Davies of Abersoch

Minister for Trade, Investment and Business

Department for Business, Innovation and Skills

8th September 2009

Regulation 7(a)

SCHEDULE 1

Regulation 7(b)

SCHEDULE 2

Regulation 7(c)

SCHEDULE 3

Regulation 7(d)

SCHEDULE 4

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and replace the Companies (Disqualification Orders) Regulations 2001 (S.I. 2001/967) as amended by S.I. 2002/1834 and S.I. 2004/1940 (as amended “the 2001 Regulations”). They come into force on 1st October 2009, and apply to any disqualification order made after that date, and to any grant of leave or action taken by a court after that date in consequence of which a disqualification order or undertaking (whenever made or accepted) is varied or ceases to have effect.

The Company Directors Disqualification Act 1986 (c.46) (“the CDDA”) gives specified courts power to make a disqualification order against any person. As amended by the Insolvency Act 2000 (c.39), the CDDA gives the Secretary of State power to accept an undertaking from any person that, for a specified period, that person must not—

(a) without the leave of the court, be a director of a company, act as a receiver of a company’s property or in any way take part in the promotion, formation or management of a company; and

(b) act as an insolvency practitioner.

These Regulations consolidate the 2001 Regulations with minor amendments.

Regulation 6 (particulars to be furnished by officers of the court) requires certain court officers to provide the Secretary of State with particulars of disqualification orders and grants of leave in relation to such orders or disqualification undertakings, and of any action taken by a court in consequence of which any such orders or undertakings are varied or cease to be in force. Section 18 of the CDDA requires that the Secretary of State must maintain a public register from the particulars so furnished.

Regulation 7 specifies the particulars mentioned in regulation 6 and the form and manner in which such particulars must be furnished to the Secretary of State. Schedules 1 to 4 contain the forms to be used when furnishing such particulars.

Regulation 9 (extension of certain of the provisions of section 18 of the Act to orders made, undertakings accepted and leave granted in Northern Ireland) places obligations on the Secretary of State regarding the retention and disposal of information furnished to the Secretary of State relating to disqualification orders made, disqualification undertakings accepted and leave granted in relation to such orders and undertakings in Northern Ireland.

Key changes from the 2001 Regulations are:

(a) in regulation 2 (definitions) there is a new definition of “leave granted” for the purposes of regulation 5 (transitional provisions in relation to regulation 9) and regulation 9;

(b) in regulation 6, certain changes within the courts made by the Courts Act 2003 (c.39) and the Constitutional Reform Act 2005 (c.4) have necessitated amendments concerning the identity of certain court officers required to provide the Secretary of State with the particulars specified in regulation 7;

(c) in the form in Schedule 1, the reference to section 723B of the Companies Act 1985 (c.6) relating to confidentiality orders has been removed in the light of the repeal of that provision by the Companies Act 2006 (c.46), and alternative provision made for the provision of service addresses by directors; and

(d) the forms in Schedules 1 to 4 have been amended so as to provide for particulars of competition disqualification orders made under section 9A of the CDDA to be furnished to the Secretary of State.

An impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

(1)

1986 c.46. Section 18 has been amended by section 8 of, and Schedule 4 to, the Insolvency Act 2000 (c.39), section 204 of the Enterprise Act 2002 (c.40) and by Article 2(6) of the Insolvency Act 2000 (Company Directors Disqualification Undertakings) Order 2004 (S.I. 2004/1941).

(2)

S.I. 1989/2404 (N.I. 18).

(3)

S.I. 2002/3150 (N.I. 4).

(4)

S.I. 2001/967, as amended by S.I. 2002/1834 and S.I. 2004/1940.

(5)

S.I. 2002/1834.

(6)

S.I. 2004/1940.