The Department for the Economy (the Department) has accepted a disqualification undertaking from the director of a company providing construction of houses.
Director Disqualification Undertaking
The undertaking was received for seven years from Nigel McKenna (52) of Coleraine Street, Kilrea, Coleraine, County Londonderry in respect of his conduct as a director of NNA Contracts Limited (“the company”).
The Company acted as a construction of houses from an office at 235 Frosses Road, Cloughmills, Ballymena, Co. Antrim BT44 9PX. The Company went into Liquidation on 6 February 2020 with an estimated deficiency as regards creditors of £435,254.91. There was a total of £100 owing as Share Capital, resulting in an estimated deficiency as regards members of £435,354.91.
The Department accepted the disqualification undertaking from Nigel McKenna on 20 January 2023 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
- Filing a false and misleading statement of affairs;
- Causing and permitting the Company to submit inaccurate PAYE / NIC, CIS and VAT returns totalling £295,332.63 and a further sum of £38,403 of assessments raised by HMRC, resulting in a loss of monies properly due to the Crown from 2016/17. This represented 99.9% of the Company’s overall restated deficiency in respect of PAYE / NIC, CIS and VAT properly payable to the Crown. Failing to comply with duties in terms of filing accurate returns, which resulted in the large debt falling due to HMRC. He continued to run the Company without any regard to his obligations as a director in terms of compliance with the PAYE / NIC, CIS and VAT regime. This resulted in the Company having more money than it ought to have had available to fund its continued trading;
- Failing to maintain and / or preserve and / or deliver up adequate accounting records in accordance with Article 386 of the Companies Act 2006, which were sufficient to show and explain the Company’s transactions and are such to disclose with reasonable accuracy, at any time, the financial position of the Company;
- Causing and permitting the Company to fail to comply with the relevant legislation in that the confirmation statement for the period ended 06 November 2018 was never filed; and
- Failing to comply with the said legislation in that annual accounts for the year ended 31 December 2017 were never filed.
The Department has accepted twelve Disqualification Undertakings and the Court has made one Disqualification Order in the financial year commencing 1 April 2022.
Notes to editors:
- Insolvency Practitioners acting as voluntary liquidators, administrative receivers and administrators have a duty to report unfit conduct to the Insolvency Service within the Department for the Economy.
- 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.
- 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.
- 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.
- 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.
- 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 two 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 90 548582.
- The period of disqualification commences at the end of 21 days beginning with the day the Disqualification Undertaking was accepted by the Department.
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