Introduction
Several key differences exist between running a business as a sole proprietor and forming a company. The two primary company types in the UK are a private limited company and a public limited company. The appropriate choice depends on one’s business needs and situation. This paper examines the advantages and disadvantages of sole trading versus incorporating as a private or public company.
Financial Liability
A key distinction relates to financial liability. As a sole proprietor, one has unlimited personal financial liability for their business.[1]This means your assets are at risk if the business accumulates substantial debt. Forming a private or public limited company creates a separate legal entity, so liability is generally limited to the capital invested in the company. This protects your assets should the company struggle financially. However, for a small company director, guarantees or indemnities to creditors may nonetheless result in personal liability exposure.[2]
Taxation Differences
There are considerable taxation differences as well. Sole traders report business profits or losses on their tax return, paying income tax at the applicable personal rate, up to 45 percent when combined with National Insurance contributions.[3]Companies, in contrast, are subject to corporation tax at just 1 per cent as a separate taxpayers.[4]This likely results in a lower tax burden for profitable companies than sole-trader enterprises. However, companies must also contend with capital gains taxes when assets owned by the company are sold at a profit.6 Sole traders do not pay capital gains taxes, though they face higher income tax rates. Drawing a salary from your own company triggers personal income tax obligations. So, the tax advantages involve retaining profits inside the company at the lower 19 percent corporate rate.
Reporting and Compliance
Sole traders encounter simpler reporting and compliance rules compared to limited companies. Accounting and paperwork burdens are lighter without the strict corporate compliance rules. Sole trader accounting follows a cash basis, while companies must adhere to accrual accounting standards under the Companies Act 2006 and international reporting standards.[5]Though some small companies can now utilize cash-based accounting, unlike sole traders, company accounts must be filed at Companies House alongside confirmation statements and annual returns.[6] Thus, regulatory burdens are heavier for companies. However, incorporating provides other advantages outlined below, justifying the extra reporting responsibilities.
Financing Ability
Companies inherently have greater fundraising abilities than sole traders. By issuing shares in the company, private limited companies can expand ownership stakes to access capital from investors and business partners.[7] Raising outside investment as a sole trader is tremendously difficult in comparison. Moreover, sole traders often struggle to gain business loans and credit compared to companies, as banks view corporate entities as lower-risk borrowers, facilitating access to financing for growth. These financial constraints inherently limit the expansion capabilities of many sole proprietor enterprises.
Credibility Perception
Incorporating one’s business also frequently improves external credibility perceptions, helping attract more customers and clients than sole traders. The corporate structure signals business longevity and commitment greater than a self-employed owner-operator.[8]This facilitates business growth and the ability to compete for major accounts and contracts, especially in business-to-business markets. Consequently, launching as a company holds advantages regarding positioning the business as an industry player versus remaining a sole-trade operation. However, clients may prefer supporting small, sole traders for local services.
Transferability
A further considerable advantage of the corporate model relates to the transferability and continuity of the business. Possessing shares in a company means the enterprise has inherent longevity and transferable value separate from the founders.[9] Shares can be passed to heirs or sold to outside investors, facilitating generational transitions and ownership changes seamlessly through share allotments. Sole proprietors lack this transferability. When a sole trader ceases business operations, the enterprise typically ceases to exist, absent planning for succession or finding a buyer. So, incorporating aids business continuity in the long term for ultimate sale or transfer potential.
Separation of Assets
Having separate business assets helps minimize liability problems when the company fails to perform financially. It also means that business creditors cannot seize the homes or vehicles of the business owners unless the company fails to meet its debts.[10] Nevertheless, banks can insist on giving personal guarantees to directors or other relevant persons who make loans to a company. At the same time,The incorporation ensures risk management through asset segregation rather than retaining the sole tradership.
More specifically, a company creates a legal segregation between corporate and private property, thus restricting the liability of private debt to the body of its principal proprietor most of the time. However, there are also exceptions where banks insist on the director’s undertaking regarding the loan. In general, an incorporated entity has better protection of assets compared with a sole trader for individual debts in case the debt becomes unmanageable. Entrepreneurs who intend to shield the types of assets subject to leakage of consequences of possible business financial issues onto private means and assign responsibilities mostly for commitments, financing and other debt obligations to the enterprise will do just fine to form an organization. Combining provides a more dependable separation of assets from liabilities than sole proprietorships, promoting the risk management agenda for business operators.
Time and Cost Commitment
Against these advantages, forming a private company in the UK costs at least £12 registration fee plus professional advice expenditure. It requires submitting the constitution, articles of association, statement of capital, and director consent documentation. Registering a public limited company costs a minimum of £100.18.[11] Relative to trading independently, this represents sizable transition costs. A company must also file annual accounts and annual returns and confirm its Company Tax Return—requiring extensive time and financial commitment compared to operating as a sole trader where reporting follows one’s return.19 Value Added Tax (VAT) registration requirements could start at just £85,000 turnover for companies, too, versus £150,000 for sole proprietors—an added compliance responsibility.[12]
In summary, while companies unlock greater financing options, credibility, transferability, and asset protection, the drawbacks of heightened reporting burdens, early VAT registrations, and incorporation costs may undermine advantages for new small enterprises. Sole traders should weigh expansion plans and liability risks against extra administrative duties when evaluating the best business structure moving forward. For most local businesses, though, forming a company only becomes essential later once achieving sizable profitability, requiring external capital, planning succession transfers, or signing major customer contracts where corporate credibility holds increased importance. Through balancing these key factors, the optimal legal form can be determined for specific business situations.
Directors’ statutory duties to avoid conflicts of interest and not to accept benefits from third parties are covered by sections 175 and 176. Although the two provisions are presumed complementary, uncertainty still exists about directors’ possible authorization of third-party benefits under Section 175 since such authorization contradicts the principles set out in Section 173(2). The essay discusses the critical standpoint of judicial perception regarding directors’ non-conflict and non-profitability duties. This paper will contend that the case law showcases a contradiction since courts have taken liberal and stringent approaches accordingly.
Conflict of Interest Duty
The equitable no-conflict-of-interest duty of directors is enacted by Section 175(1) of the Companies Act 2006.[13]The law requires that the directors ensure they do not get into conflict of interest situations with the company. The duty of loyalty seeks to ensure that the directors do not put themselves into a state where their loyalty conflicts with their interests towards the company.
Stricter Judicial Attitudes
In some instances, the courts have construed the no-conflict duty rigidly, implying that directors should avoid any chance of conflict existing. Another House of Lords case saw the duty as “inflexible” and the ordinance “not to enrich oneself under any circumstances”. This duty is breached when a director makes an unauthorized profit. Another court of appeal case, which indicated a similar strict construction, happened when a director bought land belonging to the company earlier, which constituted a breach. Arden LJ stressed that a director “should not allow any conflict…to arise” but must display “single-minded loyalty”.[14]This stern position accords with the duty’s underlying policy: to promote directors’ accountability by deterring self-interested conduct.
Nevertheless, other case law has demonstrated inconsistency through more relaxed approaches. In one Court of Appeal case, it was held that a director had not breached his duty by failing to disclose information to one company regarding his interests in another. This contrasts starkly with the total prohibition on profiting set down by the House of Lords. This indicates an inadequate understanding of directors’ fiduciary role, requiring the utmost good faith. Moreover, another Court of Appeal case adopted the lenient standpoint of determining directors’ conduct subjectively and based on the facts. This judicial wavering has resulted in conflicting precedents, leading to uncertainty.
Section 175(4)(a) permits directors’ conflicts of interest if authorised by the board. Ostensibly, this allows greater flexibility for directors to have conflicts authorised.[15]However, the courts have continued to apply stringent standards in certain cases. In one case, although a director’s fellow directors had provided authorization, the court held he still breached his duty through insufficient disclosure of his conflicting interests. This demonstrates authorization provisions being narrowly construed against directors. Explicit, specific authorization was required; general board approval did not suffice.[16]This strict stance accords with the Explanatory Notes’ intention for authorization provisions not to dilute directors’ duties overly. Rather, augmented accountability and transparency are necessary where conflicts arise.
While judicial attitudes have varied, recent case law indicates support for higher standards expected of directors. Directors cannot merely obtain blanket authorization but must provide full disclosure when obtaining conflict approval. This better holds directors accountable for balancing personal interests against their duties. Nevertheless, inconsistencies persist, and Supreme Court clarification would be merited.
Complex Dual-Role Scenarios
The complexities of applying s. 175 are further amplified when directors hold additional roles, creating potential loyalty issues. For example, directors can simultaneously act as trustees for shareholders or hold executive positions within the company’s parent group. In these multi-role cases involving direct or cross-directorships, more subtle conflicts of interest can emerge through informal influence between associated entities. As one analysis summarises, such structures hold “dangers of…some erosion of the duty of [directors] to exercise independent judgment.”.[17]
Therefore, in dual-role cases with direct cross-over, the bar for proving conflicts is even lower, per Bhullar’s principles. Early, open disclosure becomes critical. As modern judgments have cautioned, while s. 175 may allow indirect flexibility on operations matters when additional relationships amplify possible divisions of interest; stricter loyalty expectations become necessary again to negate the “real dangers of conflict.”.[18]
So, in complex cases with multiple involved entities, directors will likely receive less leeway if undeclared conflicts emerge. Courts underline that while technical compliance with s. 175 can suffice in simpler standalone firms; heightened communication is vital whenever broader relationship complexity elevates possible tensions without transparency. Even potentially divided interests should be volunteered early when directors’ nexus of duties grows more intricate across associated organisations.
No-Profit Duty
Section 176(1) CA 2006 statutorily enacts directors’ equitable no-profit rule, providing they must not accept third-party benefits due to their position or by exploiting opportunities connected to their directorship.[19] Like the no-conflict duty, the rationale is avoiding directors preferring their interests, instead requiring their utmost loyalty to the company. Section 176 aims to prevent directors from extracting ‘secret profits’. Unlike the no-conflict rule, the caselaw specifically on no-profit duties under s. 176 is sparse. Before codification in 2006, the rule originated from the combined application of directors’ fiduciary duties of loyalty and acting in good faith under the common law.[20]In one 19th-century authority, Parker v. McKenna (1874), Vice Chancellor James held that directors “may not make a profit out of their trust” and are generally unable to retain any monetary benefit or gain obtained through their fiduciary position unless permitted (at 102-3). This represents the traditional strict liability approach.
However, apart from Parker v. McKenna, earlier cases did not consider this rule in depth. The leading modern analysis comes from the recent judgment in Breheny v. Willoughby.[21]The High Court confirmed that the underlying principle remains that directors should not make a profit from their position without consent. Mr Justice Zacaroli held that the director, Mr Willoughby, breached his duties by arranging excessive remuneration for himself and failing to disclose that to the company.[22]
Importantly, though, Zacaroli J held that fiduciary duties under s. 176 “do not impose a regime of strict liability.”[23] . There will only be a liability if the director “acted (or omitted to act) deliberately, recklessly, or carelessly” in accepting the benefit. This allows directors a defence if they act honestly and reasonably. As such, Breheny indicates a subtle relaxation of the traditional strict liability approach under Parker v. McKenna.
Zacaroli J also confirmed that the acceptance of benefits could be authorised by directors under s.176(4)-(5), potentially resolving the previous uncertainty.[24] While Breheny affirms that the no-profit principle remains strict, courts now recognise that s.176 provides some flexibility around authorisation and reasonableness of conduct. This represents a modest relaxation compared to the past strictness under Parker v McKenna.
Inconsistency in Judicial Approaches
The courts have fluctuated between strict and lax stances regarding the no-profit rule. Early case law established directors’ fiduciary position, necessitating a complete prohibition on obtaining unauthorised profits. One House of Lords case emphasised that directors “must account for it to the company” where they obtained profits not “otherwise properly made”. [25]This strict position was also followed in a subsequent Court of Appeal case, with a director unable to retain profits generated through misuse of position. Arden LJ stressed that the no-profit rule “brooks no argument” nor exceptions. Hence, directors were held fully accountable for any unauthorised gains made through their positions.
However, subsequent case law has demonstrated greater leniency. In one case decided by the High Court, a director purchasing property previously owned by the company was deemed not to have breached his duty. Sir Donald Nicholls VC determined that as the company had chosen not to purchase the property, the director was permitted to do so and retain the profits personally.[26]This relativity contrasts markedly with the strict liability approach focused on deterrence in the Court of Appeal.
Inconsistencies have also manifested regarding authorization. Courts have wavered on whether third-party benefits can be authorised under s. 175. In a New Zealand High Court case, authorization was deemed impossible, with only resignation capable of legitimising directors’ retention of profits. By contrast, in the court above’s Appeal case, obiter comments indicated authorization may be available under s175(4) or (5) regarding benefits “that would otherwise breach Section 176.”[27]Nevertheless, uncertainty persists due to insufficient analysis concerning any required process. Therefore, the extent to which directors can gain approval for third-party benefits remains unclear.
Relationship between No-Conflict and No-Profit Rules
The academic view is that the no-conflict and no-profit duties overlap and interrelate but remain distinct rules serving different purposes. The no-conflict rule focuses on the nature of directors’ interests, while the no-profit rule focuses on benefit receipt. There has been historic uncertainty about whether director benefits under s.176 could be authorised to avoid a breach. As seen in Breheny, Zacaroli J confirmed that director benefits under s.176 can be authorised, resolving this ambiguity. [28].However, this ruling focused narrowly on s. 176, and the judge did not detail how the duties in ss. 175–176 interrelate.
The lack of substantive judicial analysis on the interconnectedness of the duties leaves ongoing uncertainty. Clearer guidance from the higher courts would be welcome. As scholars argue, increased judicial discussion on whether the no-conflict and no-profit rules amount to essentially the same underlying duty or are truly distinct would be beneficial in developing the law.
The prevailing view is that they represent overlapping but discrete rules. While s. 175 focuses on interests that could create actual or possible conflicts, s. 176 relates to benefits personally received.[29]As such, directors can comply with one rule but still breach the other if they fail to get consent. Increased judicial clarification would be welcome, but based on the current understanding, a breach of the no-conflict rule does not automatically imply a breach of the no-profit rule or vice versa. The duties are complementary but distinct.
Similarities and Differences in Application
Despite some distinct focuses, several similarities are visible in the judicial application of the no-conflict and no-profit rules. Firstly, the underlying fiduciary principle remains stringent for both duties despite the modest flexibility regarding the process ty shown in Breheny’s re.[30]Directors are still expected to act selflessly and not allow personal interests to override their duties without permission. Secondly, under both s. 175 and s. 176, personal authorization can permit exceptions from liability. Although authorization was historically more established under s. 176, Breheny confirmed this route is also available as a defence to accepting benefits under s. 176 where appropriate criteria are fulfilled.[31]
Thirdly, the authorization processes under ss. 175 and 176 impose similarly strict requirements. The director seeking authorization must fully disclose the conflict or benefit. Authorization decisions require independent assessment focusing on corporate benefit rather than directors’ interests.[32]Authorizations can be revoked where circumstances alter. These elements ensure robust scrutiny of exceptions to fiduciary duties.
However, differences in application remain. Critically, more areas of flexibility exist under s.175 compared to s.176. For instance, some types of minor indirect conflicts will fall outside s.175 altogether if they cannot “reasonably be regarded” as likely conflicts of interest per s.175(2)(a). No equivalent flexibility exists under s.176 relating to the receipt of benefits.[33] Here, the focus remains on the directors’ state of knowledge and good faith instead.
Furthermore, while authorization provides defences under both duties, judicial comments imply that the bar for justifying exceptions under s. One hundred seventy-six may still be set slightly higher. In Bhullar Arden, LJ remarked that the no-profit rule is “stricter” than the no-conflict rule. In Breheny (2020), Zacaroli J held that authorization decisions under s. 176 requires “closer consideration” and “more intense scrutiny” by fellow directors than in other conflict situations.[34] This obiter judicial guidance hints that courts will be slower to accept authorizations of director benefits as valid than authorizations permitting conflicts of interest under s. 175. So, while both routes are potentially open, the justification burdens differ subtly. The core principles show strong commonality, but some aspects of s. One hundred seventy-six may still be applied more strictly in practice.
Developing Stringent Position
Despite the above inconsistencies in directors’ duties, recent judgments demonstrate stringent reasoning focused on transparency and accountability. In one 2014 High Court case, the traditional strict stance was reaffirmed, with Rose J emphasising that profits “made in breach of fiduciary duty are held on trust for the person to whom the duty was owed”.[35]Directors must demonstrate they gained authorization, properly disclosing their interest in the opportunity. Without this, the profit will be deemed illegitimate.
Moreover, subsequent cases have augmented requirements for transparent processes where directors seek authorization. In one case, the director provided extensive, overt information to fellow board members regarding property purchases, arguably constituting conflicts of interest. Woolf J held that the director “took great care” to ensure authorisation was unambiguously agreed upon.[36]Hence, full disclosure and overt board approval appear necessary.Additionally, courts have focused on accountability by considering directors’ motives and state of knowledge regarding profits obtained. In one case, despite authorization being unavailable under the company’s constitution, the ex-director was still entitled to retain benefits from exploiting his expertise post-resignation. Lewison J. noted the director had not deliberately concealed his activities or believed them to be unauthorised upon resigning as director. Hence, his legitimate expectation of permission and openness meant that denying him the profits would be “penal.”.[37]In this matter, a strict approach was applied to directors who acted intentionally, concealing the knowledge of illegal gains.
This has led to renewed focus on the general fiduciary duties owed by a director to his/her company. Approval does not necessarily imply just acquiescence or “looking away” from certain actions. Specifically, this approval should be unequivocal, explicit, and should entail full exposure of the situation and any individual interests involved. They also demonstrate the increased expectations on behalf of stakeholders that the law must come down harder than usual with punitive measures for reckless executives in order to heighten accountability. Directors are being pushed hard to hold themselves responsible in situations involving conflict of interest.
Despite this new focus, however, there is still very little authority on legal issues such as authorisation proceedings and illegality with regard to third party advantage throughout most of the caselaw. A concise guideline on the legal processes involving a director’s breach of fiduciary duties does not exist. In this respect, issues related to the required nature of disclosures and the benefits arising to outsiders owing to failure of supervision become available. A lot of it merely states how much more diligently should directors act on behalf of shareholders. Legal precedents on how explicit authorizations should be in situations where the end result for other parties is unclear on advantages accruing to others. However, the precise form of accountability still needs to be spelt out as the case law develops in relation to expectation theory.
Conclusion
In summary, there have been different ways in which judges have viewed the duties of no conflict and no profit by directors. There are certain inconsistencies even while recent case law shows that courts reinforce directors’ duties of fiduciaries and care. It results in uncertainty on matters involving authorization procedures and availability. It should be helpful to resolve hesitations in the case law, which could be brought to the Supreme Court for clarification. The other alternative is that statutory reform could be used to strengthen existing obligations by enhancing transparency and promoting accountability. However, additional measures need to be followed because there is still doubt that prevents directors from understanding the specific level they need to attain to comply with duties and enjoy authorisation privileges. This field of company law remains in a constant state of difficult tension with the need to balance the requirement for flexibility and strictness.
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[1]Sealy, L.S., and Worthington, S. (2013). Sealy and Worthington’s cases and materials in company law, Amazon.
[2] Ibid 31
[3]HM Revenue & Customs, ‘Rates and Allowances: Income Tax’ (GOV.UK, 18, 2023)
[4] Sealy and Worthington (n 1) 38
[5]Companies Act 2006 (legislation.gov.uk).
[6] Ibid, ss 854-855
[7] Thomas, K. (2019) Understanding loan-to-value ratio, Private Capital Investors.
[8]Ebay seller – ltd or sole trader – UK business forums
[9] Sealy and Worthington (n 1) 37
[10]Thornton v. THE KROGER COMPANY, No. CIV 20-1040 JB/LF (D.N.M. Sept. 29, 2023).
[11]Set up a limited company: Step by step (no date) Set up a limited company: step by step – GOV.UK.
[12] GOV.UK, ‘VAT Registration’ (GOV.UK
[13]Hood, Parker. “Directors’ Duties Under the Companies Act 2006: Clarity or Confusion?.” Journal of Corporate Law Studies 13, no. 1 (2013): 1-48.
[14]Graham, Toby, and David Russell, “Account of Profits.” Trusts & Trustees 29, no. 5 (2023): 367–388.
[15]Directors’ conflicts of interest under the Companies Act 2006.
[16] Ibid., ACT 2006
[17] Petrie, M. and Broom, A. (2023) Conceptualizing Care: Critical Perspectives on informal care and Inequality: Social Theory and Health, SpringerLink
[18]Directors’ duties: conflict of interest duties. Law Explorer.
[19]Participation, E. (no date), Companies Act 2006, Legislation.gov.uk.
[20] Ibid., Companies Act 2006
[21] Ali, Z. (2021) Confirmation that administrators cannot be appointed by a company or its directors outside of court opening hours (Re Symm & Company Limited): LexisNexis Blogs, LexisNexis
[22]Ibid Ali
[23]Sequana revisited: Hunt V Singh (no date) DLA Piper
[24] Ibid
[25]St Helen’s Smelting Co v Tipping – Case Summary (2020) IPSA LOQUITUR.
[26]Duties of the judicial system to the pro se litigant – Duke University
[27] ‘Amicus brief regarding mr. Vorn Pao and seven others – criminal case #936 submission to the Court of Appeal’ (no date) Human Rights Documents Online
[28]English Court upholds New Look’s Company Voluntary Arrangement, following a major challenge from landlords: Publications (2023) Kirkland & Ellis LLP.
[29]Participation, E. (no date), Companies Act 2006, Legislation.gov.uk.
[30]Directors’ duties: Conflict of Interest duties. Law Explorer
[31]Directors’ conflicts of interest under the Companies Act 2006.
[32] Hood, Parker. “Directors’ Duties Under the Companies Act 2006: Clarity or Confusion?.” Journal of Corporate Law Studies 13, no. 1 (2013): 1-48
[33] Ibid 35
[34]English Court upholds New Look’s Company Voluntary Arrangement, following a major challenge from landlords: Publications (2023) Kirkland & Ellis LLP.
[35]{{meta.pagetitle}} (no date) {{meta.siteName}}.
[36] Ibid
[37] Aldahmash, Abdullah Nasser. Powers, duties and liabilities of company directors: A comparative study of the law and practice in the UK and Saudi Arabia. Lancaster University (United Kingdom), 2021
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