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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11143
Experience:  30 years as a practising solicitor.
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Myself and another individual were both shareholders in the

Resolved Question:

Myself and another individual were both shareholders in the limited company
That guy was appointed as a director
After a while we started to do separate things. So the company's stuff stayed with me whilst he was doing his own business.
One day he said he doesn't want to have responsibility for the company anymore as he is not involved.
So he had trnsferred his shares to my wife and was resigned as a director.
Once the changes were registered by Companies House he came in the company's bank and transferred funds from business account to his personal one as he was still on company's mandate.
I called him but he said that was a part of "future profit" which is rediculous and stopped the conversation
So what can I do with it?
Is it a criminal or civil matter?
Submitted: 10 months ago.
Category: Law
Expert:  Jamie-Law replied 10 months ago.

Hello my name is ***** ***** I will help you.

How much does he owe you please?

Customer: replied 10 months ago.
Hi
£20K
Expert:  Jamie-Law replied 10 months ago.

It is a civil matter.

You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.

If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://s3-eu-west-1.amazonaws.com/hmctsformfinder/n1-eng.pdf and take it to your local County Court.

The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.

If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.

As the claim is £20,000 you would need representation for trial as if you lost, you would be liable for his legal costs.

Can I clarify anything for you about this today please?

Customer: replied 10 months ago.
Hi!
Thanks
But why is it not a criminal matter?
According Action fraud website this deed perfectly falls into several type of frauds:
"Abuse of Position of trust"
"Asset misappropriation fraud"
"Payment fraud" - self authorising payments to oneselfOr even theft if we know he was not a director at the moment of instructing the bank to pay himselfRegards
Expert:  Jamie-Law replied 10 months ago.

This is defined as:

4Fraud by abuse of position

(1)A person is in breach of this section if he—

(a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b)dishonestly abuses that position, and

(c)intends, by means of the abuse of that position—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

If this is the case - then it may be a criminal offence. But you can't make the Police prosecute.

Does that clarify?

Customer: replied 10 months ago.
Not quite if I'm honest.
Is he considered as a company director or a third party in this case?
If he's not a director - this is theft
If he is a director - its Abuse of position
Both criminal offences
So why is it civil matter? This way any director of any company could transfer all company's funds to himself and not to be prosecuted...
Expert:  Jamie-Law replied 10 months ago.

It would be for the Police do decide whether it was criminal. Even if it was, you can not make the Police prosecute.

But in any event there is nothing stopping you from launching a civil action.
This will be far quicker than any Police investigation.

So I would report it to the Police and launch a County Court claim to make sure you recover the money
Can I clarify anything for you about this today please?

Customer: replied 10 months ago.
please
You advise the civil action. Its understood
But if the matter falls into a criminal offence definition - why I can not make the Police prosecute?
Thanks
Expert:  Jamie-Law replied 10 months ago.

Because its a matter for the Police.

The Police have no duty whatsoever to members of the public

That is why you can not make them prosecute

Does that clarify?

Expert:  JGM replied 10 months ago.

I see my colleague has opted out. I have read the issues here. I am of a slightly different opinion. This is both a civil and criminal matter. To get your money back you will have to sue in the court. However the fact that this person is no longer involved as a director or shareholder in the company but has taken money out without the company's agreement is simple theft. You can report this to the police as a theft. The police and the prosecution authority will then decide whether there is sufficient evidence to prosecute. In a case like this unfortunately the police sometimes take the easy option and say that it's a civil matter. That generally is laziness on their part. If they do that you should complain to their superior officer as a theft from a company is theft even if the police don't want to recognise it as such. I hope that helps. Please leave a positive rating so that I am credited for my time. Happy to discuss as necessary.

JGM, Solicitor
Category: Law
Satisfied Customers: 11143
Experience: 30 years as a practising solicitor.
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