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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

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