UK: England and Wales: de facto directorships and substantial property transactions

The Court of Appeal gave judgment earlier today in Smithton Ltd v Naggar [2014] EWCA Civ 939. At first instance the trial judge held that an individual was not a de facto director or shadow director and that certain transactions were not substantial property transactions for the purposes of section 190 of the Companies Act 2006: see [2013] EWHC 1961 (Ch). The Court of Appeal held that there was no basis for setting aside these findings. Arden LJ (with whom Elias and Tomlinson LJJ agreed) delivered the leading judgment and, with regard to section 190, observed that it:

"... requires an arrangement (which can be a non-contractual arrangement) under which a director or connected person acquires "or is to acquire" an interest in shares. There is no basis for interpreting the words 'is to acquire' as 'may acquire'. The fact that conditional arrangements are permitted does not require this interpretation since even a conditional arrangement must still satisfy the words quoted even if it is conditional" (para. [110]).