Duties and liabilities of directors of companies in the Cayman Islands are determined by legislation in the Companies Law (Revised) and by the Common Law from which precedents are established. Some of the Common Law principles are incorporated in statute and legal precedents evolve over time as new cases are tried before the Grand Court, Court of Appeal and the Privy Council.
Statutory Duties of Company Directors
The Companies Law (2011 Revision) lists the duties and requirements of company directors:
- To maintain a register of company members with their names and addresses and in the case of a company having its capita divided into shares, a statement of the shares held by each member, at the registered office of the company in the Cayman Islands. (This provision does not apply to the register of exempted companies which can be kept at any location).
- To maintain a register of directors. The Registrar of Companies shall be notified of any change in directors or officers within 30 days. Failure to comply with the notification gives rise to a penalty of CI$10 for every day during which the default continues. The penalty applies to every director and manager who knowingly and wilfully authorises or permits such default.
- A register of mortgages and charges over company assets must be kept at the registered office of the company. A director or manager who knowingly and wilfully authorises or permits a mortgage or charge on company property without entry on the company register is liable to a penalty of CI$100.
- Special resolutions adopted by the company must be notified to the Registrar of Companies within 15 days and annexed to or incorporated into every copy of the Articles of Association.
- The directors of a company are responsible for filing annual returns and the appropriate fee with the Registrar of Companies annually.
- The shareholders of a company, other than exempted companies, must hold at least one AGM annually.
- The directors are responsible for ensuring that the company keeps proper books of account and that it complies with accounting requirements.
- Changes of directors and any change of registered office must be notified to the Registrar within 30 days.
- Section 34 (2). No distribution or dividend may be paid to members out of the share premium account unless immediately following the date on which it is paid the company shall be able to pay its debts as they fall due. A company and any director or manager who knowingly and wilfully authorises or permits any distribution or dividend which contravenes this provision is liable on summary conviction to a fine of CI$15,000 and to imprisonment for 5 years.
- Section 37 (6). A payment out of capital by a company for the redemption or purchase of its own shares is not lawful unless immediately following the date on which payment out of capital is proposed to be made the company shall be able to pay its debts as they fall due in the ordinary course of business. The company and any director or manager thereof who wilfully and knowingly authorises or permits any payment out of capital to effect any redemption or purchase of any share in contravention of this provision commits an offence and is liable on summary conviction to a fine ofCI$15,000 and to imprisonment for 5 years.
Section 147 of the Law provides that a liquidator may apply to the Court for a declaration where it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose. The Court may declare that any persons who were knowingly parties to the carrying on of the business in the manner mentioned are liable to make contributions to the company’s assets.
Fraud in Anticipation of Winding Up
Section 134 of the Law provides that where any person, being an officer (including a shadow director), professional service provider, voluntary liquidator or controller of the company, within 12 months preceding the commencement of winding up has, with the intent to defraud creditors or contributories:
(a) concealed any part of the company’s property to the value of CI$10,000 dollars or more or concealed any debt due to or from the company;
(b) removed any part of the company’s property to the value of ten thousand dollars or more;
(c) concealed, destroyed, mutilated or falsified any documents affecting or relating to the company’s property or affairs;
(d) made any false entry in any documents affecting or relating to the company’s property or affairs;
(e) parted with, altered or made any omission in any document affecting or relating to the company’s property or affairs; or
(f) pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for unless it was done in the ordinary course of the company’s business, then such person is guilty of an offence and is liable on conviction to a fine and to imprisonment for five years.
Transactions in fraud of creditors
Section 135 of the Law introduced a criminal offence, similarly punishable by fine or imprisonment, where in the case of a company being wound up by the Court or voluntarily, an officer of the company, a professional service provider to the company has either (a) made a gift or transfer of, or has charged the company’s property, or has caused or connived in levying execution against it or (b) has concealed or removed the company’s property, in each case with the intent to defraud the company’s creditors or contributories.
Misconduct in winding up
Section 136 of the Law states inter alia that where a company is being wound up by the court or voluntarily, any person who is or was a director, officer or professional service provider of the company who does not make full disclosure to the liquidator of all company documents or property within his control (except where disposed of in the ordinary course of business) or who permits a false debt to be proved in the liquidation is punishable by a fine and to imprisonment for five years.
Material omission in statement of affairs
Section 137 provides that where a company is being wound up, a director, officer or manager or a professional service provider of the company commits an offence if he makes any material omission in any statement relating to the company’s affairs with intent to defraud the company’s creditors or contributories. A person who commits an offence under the section is liable to a fine and/or imprisonment for up to five years.
Penal Code of the Cayman Islands
The Penal Code of the Cayman Islands provides for offences of theft and fraud and includes offences such as publishing false or misleading statements with intent to deceive members or creditors and false accounting. The penalty for wrongdoing is up to seven years imprisonment.
Shadow directors are potentially criminally liable under the Companies Law pursuant to section 134 (fraud in anticipation of winding up) and section 136 (misconduct in the course of winding up) and section 137 (material omission from statement of company affairs). The penalty is a fine and imprisonment for 5 years.
A shadow director, as the name suggests, is an individual who has a role in instructing the directors of the company in their capacity as directors. It amounts to a pattern of behaviour rather than a single event. The shadow director’s name does not appear on the register as a named director. The role is defined in terms of the relationship with the named directors. A manager giving instruction to company directors in decision making could be construed as a shadow director although it depends on all the facts surrounding the engagement. The liquidator of a company may take action against any director, manager or officer of the company if in the course of a winding up that there is evidence of a criminal offence.
Duties of Company Directors at Common Law
The Companies Law (Revised) in the Cayman Islands does not specify the fiduciary or other duties imposed on company directors. Duties of directors, such as they are derive from English common law.
Duties are categorised at common law as fiduciary, skill, care and diligence. A company director must act in good faith. He must act in the best interests of the company in all his company dealings and exercise his powers in the company’s interests. The duty is owed specifically to the company and not to associate companies, subsidiaries or holding companies. The fiduciary duty extends to a director’s trusteeship of company assets; a duty to declare personal interest in company contracts; a duty not to make secret profits from his position as director; a duty of honesty and loyalty to the company. See Renova Resources Private Equity Ltd v Gilbertson 2009 CILR 268.
In considering the common law duty of care the Grand Court applies an objective test in assessing the stewardship of a company director – the skill and knowledge and experience that is reasonably expected of a person in that position in conjunction with the general knowledge, skill and experience that the director actually has. In Re Barings PLC 2000 BCLC the Court of Appeal approved a summary of a director’s role which was subsequently adopted into Cayman law by Justice Andrew Jones of the Grand Court in the case of Weavering Macro Fixed Income Fund Limited ( In Liquidation ) v Petereson and Ekstrom26 August 2011. See below.
Liability of Company Directors
Generally speaking, directors are not personally liable for the debts, obligations or liabilities of a company except for those which arise out of negligence, fraud or breach of fiduciary duty by an individual director, or due to an action not within his authority and not ratified by the company.
Statutory liability may arise by order of the Court on the winding up of the company or under the fraudulent trading provisions.
Where a director acts outside the scope of his authority and a third party suffers a loss, he may be held liable in compensation. Whether a director has authorised an act by the company outside the scope of his authority will depend on the facts of the case.
An Individual dealing with a company director about company business in the normal course of events would assume correctly that the director has authority to speak on behalf of his company unless it is subsequently proven otherwise. A director may become personally liable where he exceeds the authority given to him under the memorandum and articles of association of the company.
Under section 147 of the Companies Law, discussed above, the Court may order a director who was knowingly party to fraudulent trading by the company to make contribution to the company’s assets.