The Liabilities of a De Facto Director
The director of a company is responsible for carrying out the interest of the organization. However, in some cases, a person who has not been officially appointed as director may step into this role.
Someone who has assumed governance powers within a company and appears to carry out the role of a full director could be identified by the courts as a ‘de facto director.’
The role of ‘de facto’ director can make a person liable for certain actions in the court of law, especially in commercial disputes. In general, being able to avoid, or at least identify, de facto directorship can be critical for yourself and your company in order to prevent unwanted liability.
Sometimes a person falls into the role of ‘de facto’ director. They can then be held liable for certain action unknowingly. This can be damaging for both them and the company as a whole.
Below we have outlined two case studies involving claims of de facto directorship. In both of these cases, the accused individuals were able to avoid the liabilities associated with the role.
1: Court Gives Guidance on the Liability of ‘De Facto’ Directors
- Does the defendant work directly with the true director(s) of the company, and do so on equal footing when directing the company’s affairs? Evidence must be presented if so.
- Do they use the title of director?
- Is the individual part of the company’s chain of command or corporate governing structure?
- Can the individual’s actions be explained by some other role they hold (such as a consultant)? If so, they are entitled to the benefit of the doubt—meaning there is no inference that they are in fact a de facto director.
Recommendations to Avoid De Facto Directorship
- Non-directors should be kept out of the company’s corporate governance structure. This means they should be kept out of the decision-making process and implementation of corporate policy.
- If a non-director becomes involved in corporate governance, make it clear that their role holds less importance and that they cannot exercise true influence over the directors’ decisions.
- Non-directors should always act under the instruction of full directors. They should also be monitored and reviewed like a typical employee. This can be enforced by the job descriptions, performance appraisals, spending powers, monitoring, reporting, and allocation of company assets and representation powers.
- Avoid job titles that could imply someone is a de jure (full) director if they are not.
- Implement a formal appointment process to distinguish someone as a full director. Avoid excessive informality.
- Avoid giving non-directors classified and confidential board information.
- Maintain a high level of scrutiny in situations involving a full director.
- Consult a legal specialist to ensure you do not create opportunities for de factor directorship.
2: Court of Appeal Gives Guidance on the Liabilities of a ‘De Facto’ Director
Guidance from the Court of Appeal: Items That Qualify as Being ‘Of General Practical Importance’ When Determining De Facto Directorship
- A de facto director is someone who has assumed the responsibilities of an acting director. The court will need to determine the degree to which the individual in question assumed this role.
- The court will also have to consider the corporate governance structure of the company in order to determine whether the individual in question was acting naturally, or if they were exerting higher level governance powers than their appointed role.
- The court must consider whether the individual’s actions could fall under another job title that they possess within the company.
- It is important to understand that whether or not the individual realized they were acting as a de facto director is irrelevant. The court must look at the actions and the facts of the case alone. The defendant’s motivation or beliefs do not change whether or not they were acting as a de facto director.
- The court must look at the situation holistically and in context. Relevant factors include:
- Does the individual seem to have directorial decision-making powers? Simply being consulted about executive decisions does not in itself make one a de facto director. They must have superior governance power within the company.