What should you do?
From the descriptions of all the different regulations, we can see that personal liability constitutes a risk that may affect almost everyone involved in a company. Directors and supervisory directors are often the first to be confronted with this risk. They are under an obligation to perform their duties in a meticulous and conscientious manner. If they fail to do so, they run the risk that the company will hold them responsible for the damage arising from their improper conduct. In cases of bankruptcy, receivers often make use of this weapon and subsequently hold directors and supervisory directors liable on behalf of the company. Another frequent risk in bankruptcy cases is that directors and supervisory directors can be held liable under the WBF, which involves a number of pitfalls such as reversing the onus of proof. Finally, in many cases directors and supervisory directors can also be held responsible by all kinds of third parties such as creditors, employees, suppliers and the tax authorities.
However, directors and supervisory directors are not the only ones who risk being confronted with such liabilities. If the company goes bankrupt, all individuals who have been intensively involved in company policy risk being held accountable for the entire negative balance in the company’s assets.
This is especially the case where shareholders have been intensively involved in company policy, either openly or behind the scenes, but it can just as easily apply to accountants or other advisors. Everyone who co-determined the company’s policy can be held liable, as if they were directors.
Professional and timely advice and expert assistance is essential, not only during the phase in which a director has already been held liable but also during the preceding phase. After all, the director’s private assets could well be at stake in the event of personal liability. And the reverse likewise applies, i.e. if you are a shareholder, investor, employee or successive director and you object to the company’s policy or the conduct of a director or supervisory director. If you are a creditor of a company that has ordered goods which you have subsequently delivered, but has not paid the amount outstanding, you may well be able to hold a director liable, e.g. if this company has paid its other creditors.
At Borsboom & Hamm N.V., our lawyers are highly qualified in all these areas of law. They concentrate strongly on all aspects of corporate law. No matter whether you want to take steps to recover your losses from a director or whether you yourself are a director of a company who has been held liable: professional and expert advice is essential.
Or if you feel that your present advisor has insufficient knowledge of the matter in hand, you can of course ask our lawyers for a second opinion on your case. Remember that you need an experienced specialist in situations involving personal liability. You need someone who is able to deal with the pressure exerted on directors on all sides whenever their performance is called into question. Someone who knows all the tricks of the receivers’ trade as well as they do – if not better! Someone who can tell you about all the options available for safeguarding your rights if you yourself want to raise the subject of a director’s performance: at law and otherwise, and right up to the Supreme Court if need be.
Borsboom & Hamm N.V. can help you in all these matters. All you have to do is contact Mr C.F.W.A. Hamm or Mr J.P.M. Borsboom. They lead our teams of skilled lawyers specialising in advice and litigation in the field of liability, who are also experienced receivers and frequently act as prosecuting counsel or defence counsel in cases of directors, supervisory directors and other parties charged with liability. It goes without saying that all information is treated in the strictest confidence.