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From: Jarnail A Singh
Sent:
To:
Subject: Re: Fwd: Director's Duties
Andrew. Disclosure officer in Pol cases is the investigation officer who carried out the investigation. Hope this helps.
From: Parsons, Andrew [mailt
Sent: Tuesday, July 23, 2013 10:06 PM
To: Jarnail A Singh
Subject: Fwd: Director's Duties
Jarnail
I think Rodric meant to send the email below to you but missed your name of the circulation list. Would you be
able to look into this query asap? It's one of the points that needs to feed into the board paper.
Kind regards
Andy
Andrew Parsons
Senior Associate
Bond Dickinson_LLP_____.
Blackberry:} GRO
weccenee Original message
From: Rodric Williams
Date: 22/07/2013 18:19 (GMT+00
To: "Parsons, Andrew"
Cc: "Matthews, Gavin"
Thanks Andy.
Jarnail - do you know who the "Disclosure Officer" is on our prosecutions? Is it CK or someone in POL?
Thanks, Rodric
Rodric Williams I Litigation Lawyer
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148 Old Street, LONDON, EC1V 9HQ
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From: Parsons, Andrew [mailto:_
Sent: 22 July 2013 18:17
To: Rodric Williams
Cc: Matthews, Gavin
Subject: RE: Director's Duties
Rodric
I've spoken to one of our criminal lawyers. They can't see any risk to the Directors from a criminal law / procedure
angle.
The only issue is if someone at POL (director, manager or otherwise) has been acting as the "Disclosure Officer" for the
prosecutions. That person may have some personal exposure if the disclosure is done wrong. Do you know who this
might be? If it is someone at POL (rather than say someone at CK), I can make more enquiries of our criminal law
team and it may be something to look at from a D&O insurance angle.
Kind regards
Andy
Andrew Parsons
Senior Associate
for and on behalf of Bond Dickinson LLP
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From: Rodric Williams [mailt
Sent: 22 July 2013 14:23
To: Parsons, Andrew
Cc: Matthews, Gavin
Subject: RE: Director's Duties
Thanks Andy - that looks good for the moment.
I look forward to your response on the criminal issue.
Kind regards, Rodric
Rodric Williams I Litigation Lawyer
oS 148 Old Street, LONDON, EC1V 9HQ
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From: Parsons, Andrew [mailto”
Sent: 22 July 2013 14:02
To: Rodric Williams
Cc: Matthews, Gavin
Subject: Director's Duties
Rodric
Please find below a short note on directors’ duties. Does this cover the points you were considering?
In summary:
The risk of a POL director being personally liable to anyone outside of POL is very low.
POL's directors are subject to various personal duties (see below). As long as they make fair and reasoned decisions in
good faith, they are unlikely to breach these duties.
Each director owes their duties to POL (as a company). Only POL (as a company) can enforce a director's duties.
Employees, contractors and SPMRs cannot sue POL's directors directly for a breach of their duties.
A shareholder (ie. BIS) can step into POL's shoes and sue a director on behalf of POL (a derivative action) - though this
is difficult and quite rare.
Outside of a director's general duties, directors should be careful when externally commenting on specific SPMRs /
cases (either publically or in private but still external settings ie. speaking to JFSA, MPs or Second Sight). Directors,
like anyone else, can be held personally liable for any defamatory comments they make regardless of whether those
comments are made in a personal or a business context.
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Key directors’ duties
Duty to act within powers (section 171 Companies Act 2006)
A director must act in accordance with the company's constitution and must only exercise his/her powers for their proper
purpose.
Duty to promote the success of the company (section 172)
A director must act in the way he/she considers, in good faith, would be most likely to promote the success of the
company for the benefit of its shareholders as a whole.
Duty to exercise independent judgment (section 173)
A director must exercise independent judgment. The duty will not be infringed by a director acting in accordance with
an agreement entered into by the company that restricts the future exercise of the directors’ discretion or in a way
authorised by the company's constitution. This duty will not prevent directors relying on advice, as long as the directors
exercise their own judgment in deciding whether or not to follow the advice.
Duty to exercise reasonable care, skill and diligence (section 174)
A director must exercise the care, skill and diligence which would be exercised by a reasonably diligent person with
both:
The general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions
carried out by the director in relation to the company.
The general knowledge, skill and experience that the director actually has.
Bad faith
Please note that should a director take a decision in bad faith or maliciously (highly unlikely) this may give rise to a
number of personal liabilities for that director ie.
.
.
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Liability for triggering a malicious prosecution against an SPMR.
Liability for breach of the Data Protection Act in misusing personal / Horizon data.
Inducing a breach of contract between POL and an SPMR.
I don't believe that we are anywhere near this territory but include this concept for the sake of completeness.
Criminal
I'm just checking with one of our criminal lawyers to see if there is any way a director could be liable for POL's failure to
disclose something in a prosecution case. I suspect not but will double check and then confirm.
Kind regards
Andy
Andrew Parsons
Senior Associate
for and on behalf of Bond Dickinson LLP
Follow Bond Dickinson
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