The Department for the Economy (the Department) has accepted a disqualification undertaking from a director of a retail sale business.
The undertaking was received for seven years from Karen Cobain (52) of New Line, Dundonald, Co Down, in respect of her conduct as a director of J Brew and Company Limited (“the Company”).
The Company acted as a supermarket, trading from 31 Mill Street, Comber, BT23 5EG, 1a Cannyreagh Road, Donaghadee, BT21 0AU and 2-6 Glenard Road, Newtownards BT23 4HS and went into Liquidation on 19 April 2018 with an estimated deficiency as regards creditors of £948,196.20. There was a total of £7 owing as Share Capital, resulting in an estimated deficiency as regards members of £948,203.20.
The Department accepted the disqualification undertaking from Karen Cobain on 25 March 2021 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
- Causing and permitting the Company to operate a policy of discrimination against the Crown from 2015 / 2016 by retaining monies which were properly payable to the crown and submitting inaccurate VAT returns resulting in a loss of monies properly due to the Crown by retaining a total of £471,360.12 due to the Crown as at the date of liquidation.
- Causing and permitting J Brew and Company Limited to misuse its bank accounts by tendering cheques and payments without due regard to the ability of J Brew and Company Limited to honour these upon presentation and, as a consequence, obtained goods without the funds to pay for them, thereby causing a detriment to trade creditors.
The Department has accepted twenty Disqualification Undertakings in the financial year commencing 1 April 2020.
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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