Directors & Officers Liability Insurance - Arkwright Insurance Broker

Directors & Officers Insurance

8 Reasons an SME needs D&O

  1. Director Disqualifications
    • Over 1,500 directors was disqualified in one year. The process is stressful and time-consuming lasting from a few months to several years.
    • Disqualification orders can be from 2 – 15 years, during which time no managerial or directorial roles are permitted
    • Details of disqualified directors are published on the Companies House website
    • Even after the ban expires, the stigma remains – affecting credit history and personal reputation

 

  1. Investigations
    • DTI investigated more than 5,000 complaints last year
    • Office of Fair Trading (OFT) carry out around 50 investigations of their own as well as other agencies such as the FSA and professional bodies such as accountants, lawyers, architects etc.
    • These agencies have wide powers and are usually accompanied by the police. Directors must co-operate or face imprisonment.  They must be able to provide documents on request and explain them.
    • Investigations can be both costly and lengthy

 

  1. Personal Liability
    • Directors’ personal assets, their houses, savings and pension funds are at risk
    • Legal representation is expensive and awards can be large, which will affect the company

 

  1. Criminal Liability
    • Director’s liberty can be at stake, their actions could lead to imprisonment
    • 257 criminal offences with prison sentences ranging from 2 years to 7 years

 

  1. SME Set-up
  • Little or no risk management or formal procedures in place
  • Increasing employment legislation
  • Lack of funds to absorb a costly and lengthy investigation and/or court proceedings

 

  1. Family Companies
  • Large number of family members on a Board exposes the family assets /finances to potential liabilities
  • Family disputes can be extremely bitter and intense
  • Typical disputes include succession issues, rivalry and involvement of non-family members

 

  1. Unfounded, Mischievous & Scurrilous Allegations
    • Innocence does not prevent you getting dragged into a litigation
    • Directors can face unfounded allegations which they will be forced to defend, this is time-consuming, stressful and expensive
    • An allegation can be brought by an individual or a group, genuinely or maliciously targeting company directors, and even if those directors are innocent they will have to deal with the legal process

 

  1. Past Present and Future
    • Investigators have the statutory power to compel any officer or director, past or present, to explain information and documents
    • Actions can follow directors from job to job. Actions cost money and can be very stressful
    • Retirement offers no escape, nor does death as director’s estates can be pursued

 

Final Thought

There is a lot that can go wrong for a Director or Officer of a company even more so in these times of changing legislation.  Directors and Officers have a great deal to lose as do their dependants.

The best time to buy D&O insurance is when the company is running smoothly and in good shape, if you wait until the company runs into difficulty it may be too late.

Claims Scenario’s

 

 Creditors

 

  • A Company went into liquidation shortly after one of its directors ran up a bill with a vehicle repairer for the cost of repairs carried out to a company vehicle. The cost was incurred on behalf of the company. The vehicle repairer brought an action for the outstanding invoices and there was a suggestion that the director was liable personally in view of the provisions of the Insolvency Act.

 

  • A Director who signed a company cheque whilst the company was in receivership, found that the cheque was dishonoured and he was held personally liable to the payee.

 

  • An affidavit given by a director contained a statement that the company had sufficient resources to meet a solicitors’ fee in respect of an action being brought against the company. Before the fee was paid, the company went into liquidation. The solicitors are seeking some £300,000 from the director personally.

 

  • A director made a speech at a conference stating that his company was making a bid for another company and that his company’s merchant bankers had disclosed details of the bid to another bidding company. A claim was brought by the bankers refuting that they acted as described.

 

  • A bank has taken action against the directors of a retail company for failure to disclose material facts when they entered into a financing agreement worth £8.5M with the bank. The projected cash flow for the subsidiary showed that the loan was un-substainable. The bank accused the directors of providing misleading information

 

Competitors

 

  • A former director of a company was sued for alleged misappropriation of trade secrets which he obtained from the company.

 

  • A company is suing the directors of one of its competitors for allegedly breaching trade practices.

 

Contractors

 

  • Directors of a construction company were successfully sued for losses incurred by an architect who relied on a director’s repeated assurances that a contract performance bond had been arranged.

  

Customers

 

  • A director who accepted an order at a trade fair but couldn’t recollect the details the following morning found himself being sued by his customer for breach of contract

 

Employee

 

  • An action for breach of trust was brought against a director following the release of an employee’s medical records.

 

  • A director’s service agreement was terminated by his employers (the insured) after alleging sexually harassment. The director successfully sued the company for wrongful dismissal and libel.

 

  • An employee is seeking damages of between £200k and £250k for an alleged error in a notice of termination of service agreement.

 

  • A director found himself defending an action, brought under sex discrimination legislation, following the dismissal of a pregnant employee.

 

  • A female employee of a UK commercial airline was employed as a first officer. The individual failed to pass the flight test and was dismissed on the grounds of gross misconduct.  She sued her employer together with a number of her former colleagues, one of which was deemed an officer for alleged sexual discrimination and harassment.  The claim was settled out of court for £50,000 plus defence costs

 

  • A director launched a management buy-out of a subsidiary in which he worked, when this failed the parent company carried out a re-structure and the director was released from his contract. The former director thus sued the holding company and one of the directors for being guilty of bad faith in relation to the MBO as well as for wrongful termination.  Damages of £678,000 were paid together with defence costs.

 

Government/Regulatory

 

  • A director is being prosecuted in Europe for claiming an export subsidy on meat which was allegedly being exported to South Africa. The meat, in fact, was being exported elsewhere where no subsidy was available.

 

  • The manager of a bank which operated a discretionary currency portfolio started to roll forward unprofitable deals, which, when “closed”, lost the bank in excess of £21m. The Bank of England threatened to take away the bank’s licence and disciplinary proceedings commenced against the directors. The disciplinary body has the power to debar the directors from holding office within the banking field. Legal costs, estimated to be a six figure sum are being incurred in representing directors before the disciplinary body of the Bank of England.

 

  • The Company Secretary (as licencee) for all the bars owned by a leisure group was prosecuted for short measure being served at one of the bars.

 

  • The directors of a company which failed to comply with the time limit for delivery of accounts to the Registrar of Companies and then did not disclose certain directors’ appointments were prosecuted under the Companies Act.

 

  • Directors were prosecuted after their failure to identify the company correctly on the company notepaper and invoices in breach of the Companies Act.

 

  • The chairman of a company was investigated by FIMBRA for employing someone of “dubious character” and then failing to exercise proper control over him. He was acquitted and is now seeking the costs for his defence from FIMBRA.

 

  • The bar staff of a company were allegedly paid without deductions for tax (apparently without the knowledge of the directors). The Inland Revenue are considering bringing proceedings against the directors.

 

 

Liquidators/Receivers

 

  • Two directors of a company which was in liquidation, with a total deficit of £216,000, were held jointly for £75,000 damages (plus interest and costs) arising from wrongful trading whilst the company was insolvent.

 

Other Third Parties

 

  • Two directors signed a confidentiality agreement for receipt of papers from a company which was potentially the target of a bid by a third party. The papers were allegedly released and the target company are intimating that the sale price was affected.

 

  • After a disaster at sea a director accused a firm of solicitors of “ambulance chasing” at a press conference. The solicitors brought an action for defamation and defence costs were paid.

 

  • A company which was been the subject of a take-over bid had a disappointing first year’s trading. The purchase price for the company contained a performance adjustment clause. However an oversight in drafting the contact meant that price could not be adjusted. The Board sued the solicitors. The solicitors counter claimed against the two directors who had signed the contract.

 

Purchasers

 

  • A Manchester based clothing manufacturer sought £12,000,000 in damages against five former directors of a company they purchased in 1994 alleging they were mislead as to the value of that company.

 

  • A company has issued proceedings against two of the directors of a company it acquired. It is alleged that the former directors made negligent misstatements and misrepresentations to the purchasers and substantial damages are pleased as a result.

 

  • Company A invested in company B relying upon a statement of working capital that Company B made to its shareholders. Company B has subsequently gone into liquidation and the shares which cost £175,000 are now worthless. Company A contend that the statement was misleading and have brought an action against B’s directors.

 

  • A company’s director made financial representations to identified bidders for their company, aware that and intending that bidders would rely on these, as they did. Court of Appeal held that if the representations were proven negligent, the directors (and others) would be liable for the breach of their duty and care. Negligence was never established as the matter was settled out of court. Significant defence costs were however paid on behalf of the directors.

 


Shareholders

 

  • Shareholders brought an action for mis-management against the directors of a company which had suffered exceptional losses. The directors were able to successfully defend themselves but sizeable legal costs were incurred.

 

  • Shareholders claimed for losses they incurred due to the premature sale of shares following allegedly misleading statements by the directors.

 

  • Six shareholders claimed misrepresentation by the directors of a company regarding the state of affairs of a subsidiary and the support the company would receive from its bank. The shareholders claimed that their preference shares could not be redeemed as a result.

 

  • A Company breached its articles of association by payment of dividends out of capital profits opening itself up to potential claims from shareholders.