Lloyd's Maritime and Commercial Law Quarterly
MISFEASANCE PROCEEDINGS AGAINST COMPANY DIRECTORS
By Fidelis Oditah*
A. Introduction
The onset of insolvent liquidation is a day of reckoning for directors, officers and others who had been involved in the management of the company. Pre-liquidation acts which could have gone unnoticed if the company had continued as a going concern may be brought under the bright light of scrutiny, both by the liquidator and the courts. For the directors, in particular, there is more than cause for concern, for insolvent liquidation provides an additional forum for possible personal liability. Apart from liability for fraud in anticipation of winding up1 and for transactions in fraud of creditors,2 personal liability could follow a successful proceeding for fraudulent3 or wrongful trading.4 In addition, there may be proceedings for breach of duties owed, through the company, to creditors.5 As if these are not enough, there is the not unreal risk of disqualification from management of other companies.6 More important for the present purpose, directors may become respondents to a misfeasance summons.7 Unlike most of the other proceedings against directors of an insolvent company, the power to bring misfeasance proceedings is purely enabling and facilitative: it is an aid to the collection of corporate assets for distribution among the owners, predominantly, but not exclusively, according to their pre-liquidation entitlements. In this sense, it is complemented by a number of other statutory provisions, such as those which impose a duty of co-operation with the liquidator,8 and the rather wide investigative and discovery powers of the liquidator,9 as well as the power of the liquidator to obtain a court order for the return
* Fellow of Merton College, Travers Smith Braithwaite Lecturer in Corporate Finance Law, University of Oxford. I am grateful to Professor D.D. Prentice for reading a draft of this article.
1. Insolvency Act 1986, s. 206.
2. Ibid., s. 207.
3. Ibid., s. 213.
4. Ibid., s. 214.
5. See Nicholson v. Permakraft (NZ) Ltd. [1985] 1 N.Z.L.R. 242; Kinsela v. Russell Kinsela Pty. Ltd. (1986) 10 A.C.L.R. 395; Winkworth v. Edward Baron Development Co. Ltd. [1987] 1 W.L.R. 114; West Mercia Safetywear Ltd. v. Dodd [1988] B.C.L.C. 250. This common law development has generated a considerable volume of literature: see Sealy “Directors’ ‘Wider’ Responsibilities—Problems Conceptual, Practical and Procedural” (1987) 13 Monash L.R. 164; Prentice, “Creditor’s Interests and Director’s Duties” (1990) 10 O.J.L.S. 265, 273 et seq.; Grantham, “The Judicial Extension of Directors’ Duties to Creditors” [1991] J.B.L. 1 (where other citations are collected).
6. Under the Company Directors Disqualification Act 1986, ss. 6 and 10.
7. Insolvency Act 1986, s. 212.
8. Ibid., s. 235.
9. Ibid., ss. 131–134, 236, 237; and see Cloverbay Ltd. v. Bank of Credit and Commerce International S.A. [1991] Ch. 90 (C.A.).
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