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Litigation Against Directors & Companies

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Andrew Horne 2017 Adam Ross QC 2017
Andrew Horne
Partner, MinterEllisonRuddWatts
Auckland
Adam Ross QC
Barrister, Shortland Chambers
Auckland

Authors: Andrew Horne, Adam Ross QC
Published: 9 August 2017
Pages: 28

Introduction

Companies and their directors and senior management are increasingly at risk of civil
claims and regulatory proceedings. The finance company cases saw directors of eleven
companies convicted of offences and a number of them were sentenced to imprisonment or
home detention. The Pike River mine disaster ushered in a new health and safety regime
that imposed new duties upon directors and senior managers. The Financial Markets
Authority, Commerce Commission, NZX and other regulators are increasingly active in
monitoring and investigating market conduct and commencing regulatory proceedings or
disciplinary actions. Civil claims by groups of litigants in representative actions or so-called
“class” actions are also on the rise.

This booklet and the accompanying webinar explores some of the issues and challenges
that arise when companies, directors and management require legal representation as the
result of an investigation or proceeding. Our focus is upon the practical and tactical issues
that need to be considered when advising in the context of investigations, internal disputes
and litigation. (Continued...)

Content outline

  • The distinction between a company and its directors
    • Who is under investigation?
    • Requests and demands for documents
    • Insurance
    • Conflicts of interest
  • When companies’ and directors’ interests diverge
    • Claims or investigations against a company and its directors or management
    • Claims by or on behalf of a company against directors or management
    • Dealing with conflicts of interests effectively
    • When is independent legal representation likely to be required?
  • Who is the client?
    • Divided loyalties
    • Reliance by non-clients
    • Problems that may arise
    • In-house lawyers
  • Directors’ rights to company records
    • Access to company records where a conflict of interest has arisen
    • Directors’ notes
  • Privilege
  • Indemnities and insurance
    • Indemnities
    • Insurance restrictions
  • Sources of liability and conflict
  • Overlapping civil and criminal enforcement proceedings
    • Use of information in criminal proceedings
    • Findings in criminal proceedings conclusive evidence in civil proceedings
    • The court will not necessarily order a stay of civil proceedings against directors by
    • Reason only that criminal proceedings are commenced
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