Repaying an Unlawfully Paid Dividend

Abstract

It is well settled that directors are jointly and severally liable for an unlawfully paid dividend, being one that is not paid out of distributable profits. Strict rules apply to the meaning of distributable profits and the authorization of the payment of a dividend. What is not so clear is when a member may retain an unlawfully paid dividend. Section 847 of the Companies Act 2006 (CA 2006) indicates that a member must repay it if he knows that it is unlawfully paid, though it is not clear what constitutes ‘knowing’ in this content, or what the position should be if a member does not immediately know if the payment is unlawful, but subsequently discovers that it is. Case law is not especially helpful in dealing with this point. It is suggested that a solution to this gap in the law may be found in the precise wording of section 847, and that a member’s liability to repay should be limited to a period of six months after payment (similar to an unfair preference). Directors, Liability, Shareholders, Dividends, Unlawful distribution