In today’s rapidly changing business climate, regulators are increasingly more vigilant about internal controls and corporate governance meaning the need for superior Directors and Officers Liability cover has never been greater.
Who does it protect?
an ‘insured person’ is defined as a past, present or future directors, officers, shadow directors, and those acting in a management or supervisory capacity for the company or its subsidiaries.
What does it cover?
Personal protection for directors, officers and management against a range of civil, criminal and regulatory proceedings arising from the potential exposures associated with managing or supervising a company.
A policy will cover losses resulting from an alleged wrongful act including:-
- Statutory awards, damages, judgments, settlements, bail bond costs, crisis costs, deprivation of asset costs, prosecution costs, public relations expenses, insolvency hearing costs and regulatory crisis costs
- Defence costs, legal representation expenses and subpoena costs
- Costs arising from extradition proceedings
- Pre-investigation costs, derivative investigation costs, mitigation loss and overseas travelling costs
- Tax contributions where the parent company has become insolvent and there is personal liability of an insured
- Losses incurred for civil fines and penalties
- North American exposures
- Actions between directors of the company
- Where there has been fraudulent conduct, non-disclosure misrepresentation or intent to deceive, the policy will nevertheless be maintained for each innocent director
Claims examples include:-
Regulatory Investigation – Wholesale of Foods Company – Turnover £8m
The company was visited by the local council following reports of a rodent problem at their premises. After numerous visits/warnings the council issued a Summons against the company and two directors alleging a number of offences in relation to food hygiene in breach of Regulation 19 of the Food Safety and Hygiene Regulations 2013. The Company entered a guilty plea to the charges raised on the condition that the charges against the two individuals were dropped. This was agreed with minor fines paid by the company.
The D&O policy provided cover for the director’s Defence Costs which amounted to £50,000.
Infringement of Trade Mark – Shipping and Logistics Company – Turnover £10m
The Insured Company and its Managing Director were named as defendants in a claim alleging Infringement of a Trade Mark, Unfair Competition and Conspiracy by Unlawful Means on the basis that the company was alleged to have supplied, packaged and shipped substantial quantities of a counterfeit product. The Managing Director was alleged to be liable to the same extent as the Insured Company as he was the directing mind.
We paid the Managing Director’s Defence Costs of approx. £185k.
HSE Investigation – Leisure Management Company – Turnover £75m
A fatality occurred on the Insured company’s premises and the police, in tandem with the Health and Safety Executive, commenced an Investigation. The Police/HSE conducted an interview under caution with one of the company’s Director as part of their investigations into whether any criminal offences had been committed in the events surrounding this incident.
We paid the director’s Investigation Costs of £20,000.
Shareholder Allegation – Digital Media Company – Turnover £20m
The company decided for business reasons to restructure and set up a parent company. An ex-director who had left the business but retained a small shareholding in the company was unhappy with the decision. The ex-director filed proceedings, bringing a derivative claim against the current directors and the parent company. The ex-director alleged that the current directors breached their fiduciary duties to the company in allowing the business assets to be transferred to the parent company allegedly for an improper purpose and at an undervalue. The matter was concluded in an out of court settlement to which we contributed £38,000 on behalf of the directors.
We paid the current director’s Defence Costs of approx. £95,000.
Fiduciary Duties Breach – Drinks Import Company – Turnover £16m
The company had amassed a number of debts and required finance. It entered a loan agreement which provided the creditor with rights to convert the loan note into ordinary shares in the company. The directors resolved for the company to convert the loan note into shares resulting in the creditor having a substantial shareholding and diluting the rights of other shareholders. Litigation was pursued by affected shareholders who were also former directors, having allegedly been forced to resign . The current directors faced allegations of breach of their fiduciary duties in allowing the conversion and unlawfully excluding the former directors from the business.
We paid defence costs in the region of £350,000.
Whistleblowing – Zoological Society – Turnover £10m
An employee was dismissed from the Insured Company and brought a Claim in the Employment Tribunal for Unfair and Wrongful Dismissal, Whistleblowing, Disability Discrimination. The Claimant was seeking above £140,000.
The Claim was settled for £75,000 plus £30,500 Defence Costs.
Unfair Redundancy Selection – Estate Agents – Turnover £4m
The claimant was selected for redundancy and believed the process was unfair. He also raised concerns about the selection panel and the consultation provided. He alleged that the panel members were not qualified to comment on his potential redundancy as they did not know him nor had they worked with him. In tribunal, his claim for unfair dismissal succeeded, but only on procedural grounds. The tribunal found that, in the absence of the procedural flaws, he would have been dismissed in any event.
It awarded no compensation, but the employer’s legal costs were over £42,000.
Pregnancy discrimination – Retailers – Turnover – £30m
An operations manager informed her employer that she was pregnant. She claimed they then told her to resign. She refused, so she was dismissed, which she alleged was due to her pregnancy. The employer argued that it was due to her unsatisfactory approach to work and unauthorised absences during work hours.
The case settled before the scheduled tribunal hearing with settlement and defence costs totalling over £75,000.
Constructive unfair dismissal, discrimination and victimisation – Technology company
– Turnover £2m
The claimant alleged constructive unfair dismissal, race discrimination, victimisation, breach of contract and breach of the ACAS code. The claimant offered to accept £160,000 in respect of injury to feelings and the loss of earnings and with the provision that a reference be provided for future employers. Despite having little merit, the costs of dealing with the claim to conclusion were in excess of £60,000 and were not recoverable.
Breach of contract – Further Education Establishment – Turnover £600,000
The Insured company entered into a contract with a retailer for the supply and sale of clothing. The retailer went into administration and a dispute arose with the new company who purchased the retailer alleging that they became owners of the stock under the agreement held with the Insured company. The contract was terminated by the Insured Company but proceedings were issued by the new retailer company for breach of contract.
We provided cover for defence costs amounting to just under £24,000
Breach of contract – Telecommunications Company – Turnover £200m
The Insured company entered into a contract with a distributor for one of their products. The distributor demanded additional commission allegedly in accordance with this wholesale distribution agreement between the parties. The Insured company rejected this demand on the basis that the targets outlined within the contract were not achieved. The distributor subsequently issued breach of contract proceedings against the Insured Company.
We paid defence costs which were in excess of £20,000.
Conspiracy by unlawful means – Accountants – Turnover £3m
The Insured company employed three employees who used to work for a competitor. Shortly after, the competitor issued proceedings against the Insured company, alleging that they induced the employees to breach their employment contracts and engaged in a conspiracy to cause them harm by unlawful means. It was alleged that the Insured company worked with the individuals to transfer clients away from the competitor to their own business, causing the competitor to suffer loss of profits in the amount of the diverted business.
We provided cover for defence costs exceeding £175,000 and a settlement amount of £75,000.
Defamation and libel – Wholesalers – Turnover £42m
A dispute arose between the Insured company and two former directors after they were dismissed for gross misconduct. An email was sent to customers and suppliers of the Insured company advising them that a theft and fraud had been committed by two former directors. Although the names of the individuals were not specified, the former directors issued proceedings against the Insured company for libel and defamation resulting from the email on the basis that they had suffered reputational damage. We provided an indemnity under the policy for defence costs exceeding £70,000 and settlements of £30,000 for each director.
Health & Safety Investigation – Building Contractors – Turnover £18m
The Insured company commenced a design and build project. Two Health and Safety Inspectors attended site and conducted an unannounced safety inspection. Concerns were raised, and following investigation by the Health and Safety Executive, they initiated a prosecution against the Insured Company for allegedly failing to discharge the duty imposed upon them to take all reasonable steps to prevent danger to any persons. The Insured Company were issued with a fine of £50,000. We provided cover for defence costs up to the policy limit of £100,000.