Unmasking the Puppet Masters – Shedding Light on Shadow Directors in Corporate Governance. What is a shadow director? In simple terms, a shadow director is an individual who has not been formally appointed as a director, yet they still have significant influence in directing the actions of a company. The case – Aston Risk Management Ltd v Jones [2023] In the case of Aston Risk Management Ltd v Jones [2023], the court offered crucial insights into the interpretation of shareholders’ agreements and the delineation of directorial responsibilities within corporate structures. The case centred around the actions of an individual director, referred to as J, of a parent company (HoldCo), and their implications for the subsidiary company (SubCo). HoldCo’s shareholders’ agreement (SHA) established the framework for the group’s organisational structure. The SHA stipulated that SubCo’s business operations fell under the purview of the HoldCo board, with stringent limitations on SubCo’s directors’ autonomy in decision-making, requiring explicit consent from HoldCo’s board. A dispute arose when J, as a director, allegedly breached fiduciary duties by authorising payments from SubCo to other companies without commercial justification, including one in which he held an interest. Additionally, J was accused of transferring SubCo’s business to another company, in which he was also involved, before SubCo entered administration. J defended his actions, asserting that they were collaborative decisions made with another director, C, acting on behalf of the HoldCo board, citing the SHA and his lack of formal appointment as a director of SubCo. However, the court rejected this argument, asserting that J’s involvement in SubCo’s affairs transcended the role of oversight typical of a HoldCo director, indicating a deeper engagement. The court deliberated whether J’s actions should be attributed to him individually or considered as decisions made collectively by the HoldCo board regarding SubCo’s affairs. Several factors led the court to categorise J’s actions as individual, including: Dominant Influence: J emerged as the primary decision-maker, with C seemingly following J’s lead, indicating a lack of cohesive decision-making characteristic of a functional board. Fundamental Role: J’s involvement extended beyond occasional actions; he played a pivotal role in day-to-day decisions, diverging from the oversight role expected of the HoldCo board. The case was distinguished from previous rulings, notably Commissioners of HM Revenue and Customs v Holland [2010], where the defendant’s actions were deemed representative of a corporate director fulfilling their role. In contrast, Aston illustrated a distinct scenario where HoldCo was not a corporate director of SubCo, and J’s actions allowed for multiple interpretations. The judgement Ultimately, the court deemed J to have acted as a de facto director of SubCo. The judgement highlights the risks for individuals – particularly directors of holding companies – of becoming heavily involved in the affairs of subsidiaries. This can end up bringing with it personal responsibilities and liability for the individual. If you have any questions or would like further information, please do not hesitate to contact our Dispute Resolution team, who will be happy to help. How can Morr & Co help? If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Dispute Resolution team on 01737 854500 or email info@morrlaw.com and a member of our expert team will get back to you. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Sally Hutchings Legal Director Message Tags Insights Corporate Insights On this page Contact our team today Contact Us
