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This question requires candidates to analyse a problem scenario and explain and apply the law relating to directors’ contracts with their companies.
As a consequence of the position they hold, company directors owe fi duciary duties to their companies. One such duty is the duty not to permit a confl ict of interest and duty to arise. This equitable rule is strictly applied by the courts and the effect of its operations may be seen in Regal (Hastings) v Gulliver (1942). In that case, the directors of a company owning one cinema provided money for the creation of a subsidiary company to purchase two other cinemas. After the parent and subsidiary companies had been sold at a later date, the directors were required to repay the profi t they had made on the sale of their shares in the subsidiary company on the grounds that they had only been in the situation to make that profi t because of their positions as directors of the parent company.
It is not necessary to prove an actual confl ict of interest, merely the possibility of such a confl ict, and the rigorous nature of this principle may be seen in Boardman v Phipps (1967). One obvious area where directors place themselves in a position involving a confl ict of interest is where they have an interest in a contract with the company. The common law position was that in the event of any such situation arising, any contract involved was voidable at the instance of the company (Aberdeen Rly Co v Blaikie (1854)). However, s.182 of the Companies Act 2006 places a duty on directors to declare any interest, direct or indirect, in any contracts with their companies, and provides for a fi ne if they fail in this regard. A director’s disclosure can take the form of a general declaration of interest in a particular company, which is considered suffi cient to put the other directors on notice for the future. Any declaration of interest must be made at the board meeting that fi rst considers the contract, or if the director becomes interested in the contract after that, at the fi rst meeting thereafter. Failure to disclose any interest renders the contract voidable at the instance of the company and the director may be liable to account to the company for any profi t made in relation to it.
Applying the above to the problem scenario, it appears that Caz did not declare her interest in either Era Ltd generally, or the particular contract in question. Dull plc could have avoided the contract had they found out earlier and acted sooner, but in any case Caz can be held liable to account to Dull plc for any profi t she made on the deal. Caz will also be liable to prosecution and a fi ne under s.183 of the Companies Act 2006, which criminalises any failure to comply with the requirements of s.182.