DOES YOUR COMPANY HAVE DIRECTORS AND OFFICERS?
The board of directors, the president, treasurer, and other officers of your organization are the brains of the company, right? So, are they fully aware of the increasing personal financial liability that they face? Lack of awareness or ignorance are not sufficient pleas if you, as a Director, find yourself in breach of the law. You might find that your house (even if it’s in your spouse’s name ‘for convenience’ ;)) has to be sold off to pay the penalties arising.
Now that I have your attention, let’s look into this risk together (as I’m a Director too!)
Ten years have passed since the new Companies Act 2005 came into effect (February 1st) in Jamaica. The pre-existing act was enforced in 1965. I can remember the slight nervousness that flickered amongst company directors as increasing responsibilities, costly penalties and more onerous liabilities were placed in their laps. The insurance sector became a-buzz with professionals exploring the income potential for a relatively new class of insurance that would surely be snapped up by a significant number of companies to protect their directors from personal penalties. A decade later…what’a gwaan? Have we become complacent, Directors? Have we dropped the ball insurers/brokers? Are we dangerously treating the risk the way we treat hurricane risks…”it won’t hit Jamaica”?
The Companies act speaks to the responsibilities of ‘Officers’ as well as Directors, so the net is somewhat wider than you might think. An officer could be defined as anyone who was a director, a secretary, or a manager of the company.
RULES & REGISTRATION:
There a number of compliance related rules and regulations under the 2005 Act which an organisation can breach/fall foul of. For example, the rules for filing documents were shifted, requiring notice of registered office (i.e. location); notice of company secretary and particulars of directors to be given at the time of registration of the company.
While a duty of care by directors and officers was always present under the 1965 Act, it became codified (put in a more orderly, systematic way) under the 2005 Act. Directors and Officers have a duty of care to act honestly and in good faith, in the best interest of the company; to exercise the care, diligence and skill that a reasonably prudent person in comparable circumstances would.
The duty of care is owed to the company, but the interest of the shareholder, employees and the community in which the company operates may also be taken into account. Wide enough responsibility for you?
As a Director/Officer, you are expected to make decisions and take actions that protect all the above from loss, harm or damage…based on your level of ‘expertise’ brought to (expected for) the role. But what if it goes wrong?
INSURANCE TO THE RESCUE!
A Directors’ and Officers’ Liability Insurance policy, with carefully scrutinized wording is the order of the day, allowing Directors’ to breathe a little easier.
Call it a safety net, this valuable insurance product allows companies to attract top-level director talent as the potential board members know their personal assets are protected!
Recent research by a UK insurer, ACE, highlights the fact that Directors & Officers Liability and Cyber Risk Insurance are two of the top four emerging risks for UK businesses. Jamaica too has many directors and (in my opinion) an underestimated cyber risk exposure (who said ‘scammer’?). Add cross global trading and jurisdictions within which a Jamaican company director can be held accountable widens further still.
Director & Officers Liability insurance is designed to cover the risk of the individual liability of a director or officer from lawsuits (and some regulatory actions) taken out against them by shareholders, regulators and even members of the wider community alleging wrongdoing on the part of the board.
SCARED YOU OFF…DON’T BE?
Back in 2005, Chief Executive Officer of the Office of the Registrar of Companies (ORC), Judith Ramlogan, encouraged persons not to be deterred from either becoming directors or from retaining their position as directors of companies in light of the new, more onerous legislation. I agree, but Directors have to make an informed decision, knowing and understanding their full exposure to the risks. Regulators around the world are taking a much more aggressive stance with companies that fall short on having adequate controls or for non-compliance with legislations. Be an informed, protected and productive Director!
Want to know more?
Call me on 978 6618 / 978 6049 or email me on email@example.com