4.3.2.4a ‘No subjective bad faith’ ≠ liable

Based on the observations in Table 9, it is clear that the requirement of ‘known’ action in the courts’ assessments of discharge claims played no role in the determination of directors’ liability. The courts were unwilling to allow a director to invoke a discharge as protection against liability in the event of actions in ‘subjective bad faith’, as shown by the illustration in Figure 4 under A.

In Figure 4, I distinguished the cases involving actions manifesting ‘subjective bad faith’ and actions ‘not in subjective bad faith’. It is apparent from the illustration that, in 3 cases, courts were only willing to acknowledge a director’s discharge claim if ‘subjective bad faith’ was not evident (see Figure 4 under B). More precisely, the courts affirmed in these 3 cases that the director was not subject to serious reproach. In other words, discharge had no added value regardless of its legal validity or invalidity. The liability claim against the director would have been dismissed anyway. In Dacotherm v. Topvorm and !Go B.V. v. X, the directors could rely on the protection of the liability clause and it was affirmed that no bad faith or serious reproachable conduct on the part of the director concerned was involved.1 In Matkovic v. Exhol on the other hand, the court held that a discharge had been granted to the director but did not extend to cover the litigious action. Nevertheless, the liability claim against the director was dismissed because the action could not be qualified as serious reproachable conduct for which the director could be held personally liable to Exhol.2