Alex Horsbrugh-Porter Michael Rogers April 15 2021 Director disqualification: 12-year disqualification penalty imposed Ogier | Private Client & Offshore Services - Guernsey Alex Horsbrugh-Porter, Michael Rogers Private Client & Offshore Services IntroductionFactsLegal frameworkDecisionCommentIntroductionWhen considering the penalties imposed on directors of Guernsey companies for misconduct or breaches of the Companies (Guernsey) Law 2008 (Companies Law) (or other applicable regimes to which directors must adhere), arguably the most serious penalty which can be imposed is a disqualification order. Such an order can, at its highest, be career ending for a director, with the maximum period of disqualification being 15 years. This article examines the recent decision of The Guernsey Financial Services Commission v Peter Edward Dawson-Ball ( GRC084).FactsThe Guernsey Financial Services Commission (GFSC) applied for a disqualification order pursuant to Section 427 of the Companies Law, which is far reaching and in summary prohibits an individual from being a director of a company, but also extends to a prohibition on participating, directly or indirectly, in the management, formation or promotion of a company, both domestically and in respect of overseas companies.A prohibition order was initially made against the individual concerned, in this case, regarding his involvement in a business enterprise. The individual subsequently became involved with Immuno Biotech Limited, although he was only the financial controller and not a director of the company. Immuno Biotech's business activities involved the sale and distribution of unlicensed medicinal products and the director of the company was sentenced to 15 months in custody in England.Legal frameworkSection 428 of the Companies Law sets out the grounds for the exercise of the Royal Court's discretion to make a disqualification order and includes factors which it must take into account when determining whether a person is unfit to serve as a director. In particular, the Royal Court had regard to the following sections of the Companies Law in the exercise of its discretion:Section 428(2)(a) – the person's "probity, competence, experience and soundness of judgement for fulfilling the responsibilities of a director, secretary or officer of a company";Section 428(2)(f) – "his knowledge and understanding of the legal and professional obligations of directors, secretaries or officers of a company"; andSection 428(3)(c) – "any convictions he has for any offence and in particular any offence involving fraud or dishonesty".The aggravating circumstances in this particular case were that the individual had already been subject to a prohibition order (albeit a considerable number of years earlier), which went towards the length of the disqualification order sought by the GFSC.DecisionIn the exercise of the Royal Court's discretion regarding the term of the disqualification order, the court was cognisant of the need to protect the Bailiwick's reputation. The court noted that:as a small jurisdiction heavily dependent upon the provision of financial services… the reputation of the Bailiwick is fundamental to the sustainability of the island's economy for the benefit of the population as a whole. The Royal Court also noted that one of the purposes of the legislation was to protect the public against future conduct, not only domestically, but also in respect of overseas companies. The court imposed a disqualification period of 12 years.CommentA disqualification order for the maximum period of 15 years does not require the case to be the most serious that the court has ever seen; it requires only the crossing of the threshold to justify the imposition of the maximum period of disqualification. It is also worth noting that the Royal Court was asked to make an exception in relation to two British Virgin Islands companies of which Mr Dawson-Ball was a director and that were party to longstanding litigation proceedings. However, the court determined that it would be an "irresponsible exercise" of its discretion to allow an individual to be a director of an overseas company when it had determined that they were unfit to be a director of a Guernsey company.For further information on this topic please contact Alex Horsbrugh-Porter or Michael Rogers at Ogier by telephone (+44 1534 514 000) or email ([email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.