The following Restructuring & Insolvency guidance note provides comprehensive and up to date legal information covering:
All proceedings under CDDA 1986, s 6 are brought by the Secretary of State for Business, Energy & Industrial Strategy (SoS), working within the Department for Business, Energy & Industrial Strategy. In practice, the functions of the SoS are carried out by the Insolvency Service.
Proceedings will either be brought in the name of the SoS, for voluntary winding up, or by the Official Receiver (OR) in compulsory winding up cases. Both exercise the same functions and for ease when we refer to SoS in this Practice Note, we also include the OR.
CDDA 1986, s 6(1) states that proceedings may only be brought against a person whose conduct as a director is considered to make him unfit to be concerned in the management of a company.
CDDA 1986, s 22(4) provides that 'director' includes any person occupying the position of director, by whatever name called. This is not particularly helpful, but it is clear from case law that this covers not only registered (de jure) directors, but also shadow and de facto directors too.
A common misconception is that non-executive directors are excluded. They are not. Their culpability will depend on the make up of the board of
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