The Department of Enterprise, Trade and Investment (the Department) has accepted a disqualification undertaking for 10 years from the director of a Portadown frozen and chilled food business.
Kieran Patrick Hughes (55) of Coharra Road, Portadown, Co. Armagh was disqualified in respect of his conduct as a director of Hughes Chilled & Frozen Distribution Limited (“the Company”).
The Company carried on the business of storing and distributing frozen and chilled foods throughout Europe operating from premises at Annesborough Industrial Estate, Lurgan, Co. Armagh and Carn Industrial Estate, Portadown, Co. Armagh. It entered administration on 17 February 2010 with total assets of £3,006,000, liabilities to secured creditors of £3,574,000, liabilities to preferential creditors of £42,000, liabilities of £1,895,000 to unsecured creditors, and an estimated deficiency as regards creditors of £2,505,000. After taking into account the losses incurred by members (the shareholders) of the Company the total estimated deficiency was £2,505,002.
The Department accepted the disqualification undertaking from Kieran Patrick Hughes on 25 June 2013, based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
· causing and permitting the Company to retain a sum of £1,011,639 which was properly payable to the Crown but not paid over consisting of £114,138 in respect of PAYE, £196,306 in respect of NIC and £701,195 in respect of VAT for the years 2007/08 to 2009/10;
· causing and permitting the Company to trade with knowledge of insolvency to the detriment of creditors;
· causing and permitting the Company to abuse its Receivables Finance Agreement;
· creating at least five false accounting records to try to convince the Administrator that the transfer of assets to an associated company and to a preferred transferee occurred prior to the Company going into Administration. The assets were transferred in or around the time the Company went into Administration in an attempt to retain these assets in the associated company;
· causing and permitting the Company to maintain inaccurate books and records.
The Department has accepted 33 Disqualification Undertakings and the Court has made five orders disqualifying directors in the financial year commencing 1 April 2013.
Notes to editors:
1. Insolvency Practitioners acting as voluntary liquidators, administrative receivers and administrators have a duty to report unfit conduct to the Insolvency Service within the Department of Enterprise, Trade and Investment.
2. The aim of the Department is to bring disqualification proceedings against those directors of failed companies who have abused the privilege of limited liability status through negligence, incompetence or lack of commercial probity. The legislation contained in the Company Directors Disqualification (Northern Ireland) Order 2002 (“the 2002 Order”) is for the protection of the public and trading community but its operation should not inhibit genuine enterprise.
3. In cases where a person is subject to either a Disqualification Order made by the Court or a Disqualification Undertaking accepted by the Department, that person shall not be a director of a company, act as a receiver of a company's property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless he has the leave of the High Court. A disqualified person cannot obtain permission to act as an Insolvency Practitioner.
4. Article 9 of the 2002 Order provides that where a director is found to be unfit he must be disqualified for a minimum period of two years, up to a maximum of fifteen years. The Courts have decided that the level of seriousness of unfit conduct can fall into three brackets with the top bracket of periods over ten years reserved for particularly serious cases, six to ten years reserved for cases which do not merit the top bracket and two to five years for cases where, although disqualification is mandatory, the case is less serious.
5. The 2002 Order also allows directors, with the agreement of the Department, to avoid the need for a court hearing by offering an acceptable Disqualification Undertaking. This has exactly the same legal effect as a Disqualification Order made by the court, and will usually include a schedule identifying the director’s unfit conduct. The consequences of breaching a Disqualification Undertaking are the same as those for breaching a Disqualification Order.
6. If anybody contravenes a Disqualification Order or breaches their Disqualification Undertaking they may be committing a criminal offence and could go to prison for up to 2 years or face a fine or both. Any person with information to suggest that a disqualified person has acted in contravention of this provision should contact The Insolvency Service’s Directors Disqualification Unit on 028 9054 8508.
7. The period of disqualification commences at the end of 21 days beginning with the day the Disqualification Undertaking was accepted by the Department.