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Legal duties of directors come from statutory sources, principally the Companies Acts but also other statutory duties such as Health & Safety. It's also very common for directors duties to be set out in a shareholder agreement, the company's articles of association and/or a director service agreement.
Where claims or disputes arise, our lawyers are experienced in advising any of the parties involved.
The duties set out in the Companies Act (see below) are guiding principles. To avoid disputes over whether directors have breached duties, companies will often set out more clearly what is acceptable or unacceptable conduct from directors. As well as setting out clearly what will amount to breaches of duty, clear restrictions on powers and authority are a key protection.
There are 3 main ways to do this :-
where the directors are also shareholders, in a shareholders agreement
in a directors service contract
A clear benefit of a shareholder agreement, where directors are also shareholders or where directors are made a party to the agreement is that the shareholders will be able to enforce any breach of duty by a director as a breach of contract.
The Companies Act 2006 outlines the main statutory duties, which are summarised here. We are often contacted by shareholders, typically minority shareholders, who report that the directors are acting in a wholly inappropriate way only benefiting themselves and/or majority shareholders. It is often a surprise to shareholders when we advise that under statutory Company law and common law, almost all of the director duties are owed to the company not shareholders, which makes taking legal action against the directors difficult.
The main option available in this situation is to consider a derivative claim, which is a claim brought by the company against the directors and usually instigated by the shareholders. The process is complex and risky.
Shareholders should ensure that they are protected by enhancing the company's standard form articles and/or with a comprehensive shareholder agreement so that they have more options to take action against directors, such as to remove directors, reduce directors powers or enhance the duties of the directors.
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If you would like to speak with a member of the team you can contact us on:
Partner - Commercial law, Employment law & Notary Public
Stephen works in both the Commercial and Employment Team and specialises in general commercial work and commercial litigation. He has over 30 years’ experience of dealing with high value commercial disputes, including shareholder claims, warranty claim...
