Back
Boltholes and Hideaways
We would heartily recommend Lanyon Bowdler to any business as the team structure enables the delivery of a comprehensive...
Director Shareholder Conflicts.
A recent case in the High Court, featuring a conflict between a shareholders’ agreement and articles of association, analyses the position of parties to a shareholders’ agreement who are also directors of the company and therefore subject to fiduciary and other duties owed to the company.
The case is of general interest because it is not unusual for one person to act in different capacities in connection with the same company: as well as being a director he might be a shareholder or an officer or representative of a shareholder. As shareholder he might advocate one course of action and the opposite course as director, so that in one role or the other he may appear to act purely formalistically.
In the case, however, the court refused to let the same persons do as directors what they had agreed as owners to prevent.
Shareholder & Director Decision-Making
In joint ventures, private equity and other forms of investment shareholders often agree to use their voting powers as shareholders in certain ways – for example, to maintain each other’s appointees in office as directors of the company. Shareholders are normally free to vote in their own interests or to bind themselves contractually to vote in a particular way.
It is very different with director decision-making. Directors of English and Welsh companies are subject to various duties under the Companies Act 2006, including duties to promote the success of the company for the benefit of its members, to exercise reasonable care, skill, and diligence, to exercise independent judgement and to act in accordance with the company’s constitution.
Although a director may owe his seat on the board to the appointing shareholder, the law is clear that he must comply with these duties and put the company first, even if that is disadvantageous to the appointor or more favourable to another shareholder. The appointor cannot legitimately expect the director to agree that he will vote in a particular way if that is not the way he would have voted in good conscience anyway.
The Facts
The case concerned three individual founders of a Guernsey company, who together owned a Cayman company that held all the voting shares. One of them, the claimant, fell out with the other, who controlled the Cayman company. The shareholders’ agreement represented the compromise between them and provided that the claimant would be appointed by the Cayman company as a director of the Guernsey company at the 2008 annual general meeting, and then re-appointed at successive AGMs. The other founders were parties to the agreement and were also directors.
The Guernsey company’s articles provided that a director’s office would be vacated if all the other directors so resolved. Although this is not unusual, it is not a standard provision, and it was perhaps retained by oversight. After the claimant was re-appointed by the Cayman company at the 2010 AGM the other founders, as directors, joined in a resolution to remove him pursuant to the articles. They said that, as they considered him unsuitable, their fiduciary duty required this; Directors’ duties under Guernsey law are like the general duties under the Companies Act 2006. Despite the agreement, the Cayman company refused to re-appoint the claimant at the 2011 AGM on the grounds that it would be futile, as he would inevitably be removed by the directors.
Judgment
The court ruled that it was an implied term of the shareholders’ agreement that the other founders were not entitled to vote as directors to remove the claimant under the articles. A contracting party is entitled to assume that the other parties will do nothing voluntarily to render the agreement inoperative.
It was argued on behalf of the other founds that they had not acted voluntarily: they had had no choice but to comply with their fiduciary duties. The judge indeed acknowledged that it would be problematic to uphold an agreement that constrained directors from acting in accordance with their perception of their fiduciary duty.
But there is a principle that, if an obligation can be performed – within the framework of what has been agreed – in alternative ways, one of which is lawful and the other not, performance by the lawful way can be ordered. The other founds could have avoided their fiduciary difficulties by getting the Cayman company to sanction the breach, or to change articles or give a direction to the board not to remove the claimant.
These were the sort of steps that they were obliged to take under a further assurance clause in the agreement, under which the parties agreed to take such actions as might be reasonably required to give effect to the agreement. The court was therefore reached to declare that they must not remove the claimant under the articles and – if they insisted that this put them in breach of duty – they had their choice as to the steps that could be taken to remove the problem.
Comment
The case highlights the rule of contract law that it is a breach of contract to do something voluntarily that will make performance of the contract impossible or futile. It is this rule that enables contracts to be written sensibly, setting out clear positive obligations without having to specify that this means the party must not do other things that would make the positive obligation pointless.
Here, the individuals contracted as founders, not as directors, but the distinction was artificial. It might be tempting for a shareholder who is also a director of the company to think of himself as having separate identifies according to the particular hat he is wearing. He may think that in this way he can comply to the letter with the shareholders’ agreement but then be free of his contractual obligations when he acts as a director. But that will not be the case unless there is a carve-out to that effect in the agreement.
There are problems where a person binds himself to act in a way that is inconsistent with a fiduciary duty to which he is subject. If the shareholders’ agreement had not contained a further assurance clause under which the parties agreed to take additional steps it might not have been possible for the agreement to work lawfully, and the court might have held the agreement to be unenforceable. On the other hand, perhaps the court would have found that it was an implied term of the agreement that the necessary steps be taken to stop a breach of duty arising.
Testimonials
What our clients say.
From the first contact, the team at Lanyon Bowdler gave a fast & efficient service. They were very friendly & gave me the confidence that I had found the right solicitors. The advice given & the fast responses were beyond my expectations. The matter was resolved in no time at all.
Martyn
via ReviewSolicitors
Having recently used Lanyon Bowdler for the sale of a business, we had no hestitation in contacting Edward Burrell again to represent us in the purchase of another company. His advice and judgement was always spot on and his personal dedication towards achieving our objectives and getting the best possible outcome for his clients was impressive.
Tim
via ReviewSolicitors
Got the advice I needed to help me with my business, always available when needed.
Duncan
via ReviewSolicitors
Our company needed some advice quite urgently and Lanyon Bowdler dealt with everything quickly and efficiently.
Debbie
via ReviewSolicitors
Since dealing with Lanyon Bowdler they have been diligent, efficient and at all times very helpful along with being structured in dealing with matters, fees and clarity on all levels. Thank you.
Michael
via ReviewSolicitors
I was clearly informed of progress step by step. The service you provided was very good.
Peter Weston
Shrewsbury
All work carried out effectively and efficiently.
Hubert Jones
via ReviewSolicitors
Smooth and efficient service from very professional firm.
Tim
via ReviewSolicitors
An excellent service with solicitors that you can talk to and who give you a clear understanding of all necessary legal implications and interpretations.
Eric
via ReviewSolicitors
From start to finish we had excellent service. Friendly, approachable and professional.
Carl Gittins
via ReviewSolicitors
Very clear, concise advice and guidance, easy to understand.
Ian Jamieson
Telford
Good service provided throughout with clear communication throughout with all options explored.
Lee
I can thoroughly recommend the highly professional and supportive service received over the last few months.
Heather
via ReviewSolicitors
Responsive, supportive, approachable, clear and empathetic.
Lisa Thacker
Professional and prompt communication. Supportive and client focused.
Lisa Thacker
Jennifer M Whittall Ltd
Whenever I have had need to contact Lanyon Bowdler I have always received a fast, concise and friendly response.
Lee Mortimer
UK Case Management
Definitely would use Lanyon Bowdler again if I need the use of a solicitor.
Mark Bowkett
via ReviewSolicitors
Smooth and efficient service from very professional firm.
Tim
via ReviewSolicitors
We were particularly impressed with the quality of work, the speed and excellent communication.
Allenby Douglas Ltd
Oswestry
Greatly exceeded my expectations!
Worxinfo Limited
Coventry
Very friendly and approachable. Very good advice
Ivor Brown
via ReviewSolicitors
Great Service; Lanyon Bowdler were excellent from the outset. Straightforward and easy process. I just sat back and waited.
Paul Rowe
via ReviewSolicitors
Everything has been professional, efficient and courteous throughout and we are very pleased, both with the service and with the eventual outcome of our case. Everything was first class and exceeded our expectations. Thank you again for providing such splendid service. It is really appreciated.
Mr N J & Dr S J Browne
Llanfyllin
Contact Lanyon Bowdler
Give us a call or complete the enquiry form to speak with our team. Our Corporate Lawyers can provide the advice and help you need. We have offices in Shrewsbury, Bromyard, Conwy, Hereford, Ludlow, Oswestry, and Telford, we are able to act for you wherever you live in England or Wales.
Our people
Meet the team.
Knowledge
Case studies.
Case Study
Case Study
Oldfields Cider
We found the team to be exceptionally knowledgeable and efficient in resolving any problems quickly....
Case Study
Marches Leisure (The Shrewsbury Club) and Holmer Park Spa and Health Club (Herefordshire)
Corporate and commercial legal advice regarding business acquisitions....
Knowledge
Latest knowledge.
Case Study
Boltholes and Hideaways
We would heartily recommend Lanyon Bowdler to any business as the team structure enables the delivery of a comprehensive...
Case Study
Oldfields Cider
We found the team to be exceptionally knowledgeable and efficient in resolving any problems quickly....
Case Study
Marches Leisure (The Shrewsbury Club) and Holmer Park Spa and Health Club (Herefordshire)
Corporate and commercial legal advice regarding business acquisitions....
Podcast
Starting a Business with Entrepreneur Ellie Beavan (Winsbury Dairy)
About setting up a business in the food industry, selling farm fresh pasteurised milk to shops, pubs and restaurants, an...
Blog
Loan Agreements – Do I need Financial Condu...
It is very common for informal loans to be made between family members and friends but whilst the arrangement might...
Blog
Top Tips For New Businesses
You have had a brilliant idea, the business plan is agreed and now you’re ready to start the business. Here are a f...
Podcast
The Importance of Shareholders Agreements – Grainne Walters
We explain the differences between directors and shareholders, and how a shareholders agreement can detail how a shareho...
Blog
Why Do I Need Written Contract Terms With M...
There is a phrase known as ‘over-lawyering’ and many businesses may feel that they have trusted re...
Blog
Q&A: Focus on Warranty and Indemnity In...
Warranty and Indemnity Insurance, commonly referred to as W&I insurance, is often used in private mergers and a...
Blog
Mistaken Filings at Companies House
Forgetting to file a form on time, including the wrong number in your calculations or simply misspelling a company’...
Blog
Parental Responsibility Update
The removal of parental responsibility is the subject of many client enquiries. There are a large number of cases w...
Accreditations
Our awards and accolades.
Contact us
Get in touch.
"*" indicates required fields