4.3.2.2 Did the litigious actions fall under the scope of the discharge?

Of the 6 cases in which the court decided that discharge was granted to the defendant director, there are 3 cases in which the litigious actions involved ‘bad faith’. In these 3 ‘bad faith’ cases, the court did not allow the litigious actions to fall under the scope of discharge.1

Of the 6 cases in which the court acknowledged that discharge was granted, the court only allowed the litigious actions to be protected by the discharge provision in 2 instances (see Table 9 under ‘in scope’). In both cases, the court explicitly ruled that the litigious actions did not involve ‘bad faith’ or serious reproachable actions. In Dacotherm v. Topvorm, the director was granted discharge by means of a settlement agreement as part of his resignation.2 Dacotherm’s directors were, along with De Kerf, Dacotherm’s indirect shareholders. The District Court considered that the litigious actions were ‘known’ actions to Dacotherm’s general shareholders’ meeting based on the content of the board’s reports that were, as was confirmed in proceedings, at the disposal of De Kerf and her advisors. The court assumed that De Kerf must have been aware of the company’s difficulties due to a highly increased order portfolio and lagging production capacity.3 In !Go B.V. v. X, the director was alleged to have acted fraudulently by making unauthorised payments to himself. Upon the defendant’s counterclaim, the District Court determined that the director was wrongly accused of fraud.4 The court ruled that the payments were disclosed in the annual financial statements and that the defendant director was entitled to rely in good faith on the discharge granted to him for actions derivable from the financial statements, which were adopted by the general shareholders’ meeting.5