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Deferred Prosecution Agreements and Directors Liability

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The problem of corporate DPAs and individuals

Amidst the contemplation of self-reporting and DPA negotiations, individuals undoubtedly take centre stage. A company by nature has ‘no mind or morals’,1 and is therefore vulnerable to the acts of human persons incurring liability on its behalf, but also dependent on the acts of human persons to see that any liability is dealt with appropriately in the given circumstances. Individuals naturally become implicated in both instances as a result, and principally the onus falls on directors and senior officers of “wrongdoing” companies to consider the best interests of the company in dealing with such matters. This is a duty inherent within the directorship role, and is one of a number of mandatory duties set out in the Companies Act 2006. The issue becomes complicated where the individuals implicated in the corporate wrongdoing are those bound by such statutory duties, to serve and protect the company over and above themselves.

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