Directors are generally required to devote their time and effort to the companies they serve and to avoid making investments which might conflict with their best interests. The High Court analysed the extent of those duties in resolving a dispute between shareholders in an indoor climbing centre.
A director and founder of the centre, who owned a 32 per cent stake in the company that ran it, was sacked after his fellow shareholders discovered that he had invested £100,000 to acquire 49 per cent of another business in the same sector. He was, amongst other things, accused of creating a conflict of interest and failing to promote the company's success.
Two of the fellow shareholders offered to purchase his shares in the company at a discounted price on the basis that he was a 'bad leaver' within the meaning of the shareholder agreement. He rejected that offer and launched proceedings under the Companies Act 2006, asserting that he had been wrongfully dismissed and subjected to unfair prejudice as a minority shareholder.
The director pointed out that the centre and the business in which he invested were not competitors and operated from premises 200 miles apart. In dismissing his claim, however, the Court found that he was heavily committed to the other business and worked for it at times when he could have been working for the company.
His direct or indirect interest in the other business conflicted, or possibly may have conflicted, with the interests of the company. That was a fundamental breach of the duty he owed to the company and the board was not wrong to exclude him from the company's management and to oust him as a director.
By signing a directors' services agreement (DSA), he undertook to devote his full time and attention to furthering the company's business during such hours as might be necessary for the performance of his duties. The Court noted that the board had been rightly concerned to understand how his commitment to the other business might affect his performance of that undertaking.
His decision to invest in the other business was unauthorised and unilateral and the investment opportunity which he pursued himself might also have been of interest to the company. His failure to make full disclosure of his involvement with the other business when asked was also a persistent breach of his obligations under the DSA. The Court concluded that he had suffered no unfair prejudice and that the company was entitled to terminate his employment contract.
For advice on any aspect of company law, contact Roy Colaba r.colaba@sydneymitchell.co.uk and on dispute resolution Dean Parnell.
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