Gemma Ltd v Davies [2008] EWHC 546 (Ch), [2008] All ER (D) 216 (Mar)
To establish that a person was a de facto director of a company, it is necessary to prove that he undertook functions in relation to the company which could properly be discharged only by a director. It is not a necessary characteristic of a de facto director that he is held out as a director; such “holding out” may, however, be important evidence in support of the conclusion that a person acted as a director.
Holding out is not a sufficient condition either: what matters is not what he called himself, but what he did. It is necessary for the person alleged to be a de facto director to have participated in directing the affairs of the company on an equal footing with the other director(s) and not in a subordinate role.
The person in question must be shown to have assumed the status and functions of a company director and to have exercised “real influence” in the corporate governance of the company. If it is unclear whether the acts of the person in question are referable to an assumed directorship or to some other capacity, the person in question is entitled to the “benefit of the doubt”.
