A growing trend on the part of enforcement authorities when dealing with company misfeasance is to also consider whether a director, an officer or even an employee might have individual liability for the corporate offence. If so, the scope of the investigation may then extend significantly, examining not only the perceived corporate failings, but also the roles, responsibilities, and culpability of those individuals acting and taking decisions on behalf of the company.
If there is sufficient evidence that the individual has committed an offence, or has been directly concerned in the commission of an offence by the corporate entity, individuals can and will be prosecuted. The subsequent financial and reputational damage caused by a criminal prosecution cannot be underestimated.
While the size of financial penalties being imposed is increasing, so too are the number of directors who are being disqualified from acting as directors of limited companies. This can occur if a director is found guilty of a criminal offence, and the prosecutor goes on to seek (in addition to the sentence imposed for the criminal offence) that the Sheriff also imposes a disqualification order.
With that said, director disqualification is most typically associated with insolvent companies. The Insolvency Service, on behalf of the Secretary of State for Business, Enterprise and Industrial Strategy, will investigate the conduct of directors of insolvent companies and, if satisfied that the director’s conduct is "unfit", will seek a disqualification order through the courts (or, alternatively, seek a voluntary undertaking from the directors concerned).
However, the Competition and Markets Authority (CMA) possesses similar powers (disqualification order or voluntary undertaking) where a breach of competition law has been identified. It is becoming clear that the CMA is intent on exercising those powers far more frequently.
While the reputational damage to businesses and individuals is not easy to calculate, the costs of defending an aggressive investigation and prosecution are undeniably high. Directors, officers and employees may be required to sit through the stressful and pressured environment of an interview under caution. The majority of director/officer misfeasance cases are resolved without a trial, through negotiating and agreeing a plea or disqualification undertaking.
We understand how plea agreements are reached with prosecutors and enforcement agencies, having acted for tax authorities in enforcement proceedings, and having acted for The Insolvency Service in director investigation and disqualification proceedings for nearly 20 years.
We possess extensive experience of providing clear-headed legal advice in complex investigations, supplying comprehensive and efficient support in planning and executing document reviews, and engaging with investigative bodies in discussions on the scope and extent of inquiries.
We take a proactive investigative approach that allows us to ‘get ahead’ of potential issues as an investigation develops and in advance of any disclosure, allowing time to plan an appropriate defence strategy. We provide advice throughout all stages of an investigation, up to and including criminal proceedings, and in negotiating and agreeing plea arrangements with prosecutors or enforcement agencies.
Investigation advice and support: we provide legal support throughout the course of complex investigations, with a particular focus on ensuring that requests for information are lawful and proportionate and that enforcement agencies comply with principles of fairness. We have legal/paralegal teams available to work on significant discovery processes and the interrogation of data efficiently and cost-effectively.
Strategic defence advice: the defence strategy will evolve throughout the course of an investigation as new information becomes known and patterns of conduct emerge. We are tenacious in ensuring that all evidential avenues are explored, and report clearly on optimum strategies in light of emerging evidence.
Advocacy and representation: our team includes skilled litigators and Advocates (with higher rights of audience in the Scottish courts), many with experience of working in the Crown Office and for tax enforcement agencies.
The Insolvency Service
Acting for The Insolvency Service for nearly 20 years in relation to director investigation and disqualification proceedings in Scotland and in England & Wales.
Providing hands-on support and strategic advice throughout all stages of an investigation, from initial enquiries by enforcement authorities, to lengthy, detailed document and data gathering exercises by investigators, to attending interviews under caution, and providing advice on document disclosure obligations.
Developing defence strategies, including acting in plea negotiations and agreements, preparing and delivering extensive and compelling mitigation statements in the event of agreeing a plea, and working seamlessly with clients to ensure discipline in managing publicity and public statements.