INVEST 360 Ltd AGAINST KEVIN PARK [2017] ScotSC 34 (02 June 2017)

INVEST 360 Ltd AGAINST KEVIN PARK [2017] ScotSC 34 (02 June 2017)

The pursuer's averments are sufficient to allow a proof on the alleged breach of section 171(b) and section 175 of the Companies Act 2006, as the defender's power to authorise payments was curtailed by agreement and procedures, and the payments to SCL were not transactions with the director personally. The averments under section 173 are irrelevant and excluded, as are those relating to the prescribed sum of £1,865, due to lack of sufficient averments to invoke section 11(3) of the 1973 Act.

Citation
[2017] ScotSC 34
Parties
Pursuer: INVEST 360 LIMITED; Defender: KEVIN PARK
Jurisdiction
Scotland
Judgment Date
02 June 2017
Procedural Posture
Civil (company Law Director's Duties) / Interlocutory Judgment on Relevancy and Probation After Debate
Outcome
Certain averments excluded from probation; proof allowed on remaining averments; prescription plea upheld for £1,865 claim; hearing on expenses and further procedure fixed.
Legal Topics
Directors' Fiduciary Duties, Breach of Duty, Conflict of Interest, Prescription (limitation), Company Constitution, Remuneration of Directors
Company Law Civil Procedure Directors' Fiduciary Duties Breach of Duty Conflict of Interest Prescription (limitation) Company Constitution Remuneration of Directors

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Parties

INVEST 360 LIMITED

Pursuer

KEVIN PARK

Defender

Procedural Posture

Civil (company Law Director's Duties) / Interlocutory Judgment on Relevancy and Probation After Debate

Legal Issues

  1. 1 Whether the defender breached fiduciary duties under Companies Act 2006 sections 171, 173, and 175 by authorising payments to a company with which he was associated without proper approval; whether the claim for £1,865 is extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973.

Ratio Decidendi

The pursuer's averments are sufficient to allow a proof on the alleged breach of section 171(b) and section 175 of the Companies Act 2006, as the defender's power to authorise payments was curtailed by agreement and procedures, and the payments to SCL were not transactions with the director personally. The averments under section 173 are irrelevant and excluded, as are those relating to the prescribed sum of £1,865, due to lack of sufficient averments to invoke section 11(3) of the 1973 Act.

Court Disposition

Certain averments excluded from probation; proof allowed on remaining averments; prescription plea upheld for £1,865 claim; hearing on expenses and further procedure fixed.

Orders

  • Repels first plea-in-law for defender.
  • Sustains second plea-in-law for defender to the extent of excluding specified averments from probation.