Director disqualification – what should I do if I receive notification of an investigation?
Background
Businesses may need to send someone to court for a variety of reasons; from recovering an unpaid debt or contractual overpayment, to defending a personal injury claim or tax action brought against them by HMRC. Whatever the circumstances, there will be a need for evidence to support their position and often this will come from people who have first-hand knowledge about what has happened or the circumstances leading up to a dispute.
Such evidence is normally given in a written witness statement and for the very few cases that proceed to court, the witness will be called to give evidence in person.
So, what should you expect if asked to give evidence?
Witness statement
Where you are asked to provide a witness statement, then this will normally be prepared on your behalf following a face-to-face meeting, a telephone call, or a video conference by either your company’s in-house counsel or by an external solicitor. It will be written in your own words and confined to dealing only with facts that are within your own knowledge or which are matters of information or personal belief.
You must be satisfied with the accuracy of the information your statement contains, as it will have to be verified by a statement of truth which confirms that you have an honest belief in the correctness of what you have said and that you understand you could be sanctioned by the court if you give a statement that you know to be false.
Document request
Where you are asked to produce documents in your possession, or which are under your control and considered relevant to the case, then you will normally be asked to do this on a voluntary basis first and then, if you refuse, by compulsion via a court order.
If you believe that you have a right or legal duty to refuse to comply with a document request, then it is important that you raise this with the solicitor as soon as possible. This might be the case where production of a document would put you in breach of a contractual obligation or where the document contains something that might personally incriminate you.
Going to court
If you are asked to go to court in connection with a business matter, then it will be up to the judge handling the case to determine the nature of the questions you may be asked.
You will not be expected to recount the details of your witness statement in full, but you may be asked to expand on what you have said or to answer questions about a particular issue where your recollection of events differs from those of another witness or the other party to the proceedings. You may also be asked about any events that have occurred since your statement was made and provided to the other side
Where you are likely to experience any difficulty in attending court, for example because you are due to be abroad on the relevant date, then it may be possible for you to give evidence via video link instead. This will be entirely in the court’s discretion.
Where a question is put to you that could be incriminating if you were to answer it, or which could expose you to the risk of some other form of penalty, then you may have a right to refuse to comment depending on the circumstances.
Overcoming potential obstacles
If you are happy to provide witness or documentary evidence, but you are being prevented from doing so by contractual or practical restraints, then it may be possible for these to be overcome – either by the issue of a witness summons or some other court order.
For example, if you are happy to attend court but your employer is refusing to give you the day off, then a witness summons compelling your attendance will usually resolve this.
Likewise, if you are subject to statutory or contractual obligations which prohibit confidential documents or information covered by data protection rules from being disclosed without a court order, then it may be possible for such an order to be obtained.
Conclusions
Giving evidence may seem intimidating but with proper preparation it should be no more daunting than attending any meeting where you are asked to provide your recollection of events within you knowledge.
If you have any litigation related enquiries, please contact us as follows:
| Lewis Cohen | lewis.cohen@bracherrawlins.co.uk | 020 7400 1547 |
| Amy Hope-Smith | amy.hope-smith@bracherrawlins.co.uk | 020 7400 1541 |
| Olivia Maurier | olivia.maurier@bracherrawlins.co.uk | 020 7400 1525 |
| Simon Rawlins | simon.rawlins@bracherrawlins.co.uk | 020 7400 1539 |
16 May 2022
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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