No. 7/2018 INSOLVENCY Cap.6:07 116 Private prosecution of directors and others (1) If it appears in the course of the liquidation of a trust, company, private business corporation, co-operative or another debtor other than a natural person or partnership, that any past or present trustee, director, shareholder, member or officer of the debtor has been guilty of an offence for which he or she is criminally liable, the liquidator must cause all the facts known to him or her which appear to constitute the offence to be laid before the Prosecutor-General in question and, if the ProsecutorGeneral declines to prosecute, the liquidator may, subject to section 49 institute and conduct a private prosecution in respect of such offence. (2) The Court may, on application by the liquidator, order the whole or any portion of the costs and expenses incidental to such private prosecution to be paid out of the assets of the debtor in priority to all other liabilities. PART XXI PERSONAL LIABILITY FOR FRAUDULENT, RECKLESS OR INSOLVENT TRADING 117 Liability for fraudulent or reckless conduct of business When a debtor is liquidated and it appears that any business of the debtor was or is being carried on recklessly or with intent to defraud creditors of the debtor or creditors of any other person or for any fraudulent purpose, the Court may, on the application of the Master, the liquidator, any creditor, shareholder, member or contributory of the debtor, declare that any person who was knowingly a party to the carrying on of the business in the manner aforesaid, is responsible, without any limitation of liability, for such of the debts or other liabilities of the debtor as the Court may direct irrespective of whether the debtor can pay the debts or other liabilities. 118 Insolvent trading (1) If a debtor is liquidated the Court may, upon application, declare that any person responsible for the management of the debtor who caused or allowed the debtor to incur a debt at a time when he or she knew or had reasonable grounds to suspect that the debtor would not be able to pay such debt as well as its other debts as they fell due, is liable for such of the debts or other liabilities of the debtor as the Court may direct. (2) The Court must determine the amount payable with reference to the loss that was or will be suffered by the creditors on account of the insolvent trading. (3) The amount so determined must be paid to the applicant for distribution among the creditors represented in the application, or for distribution in such other manner as the Court considers appropriate in the circumstances. (4) In determining the amount and its fair distribution among the creditors, the Court must have regard to the extent to which a particular creditor negligently or intentionally contributed to his or her own loss. (5) The facts which a person referred to in subsection (1) ought to know or ascertain, the conclusions which he or she ought to reach and the steps which he or she ought to take are those which would be known or ascertained or reached or taken by a reasonable diligent person having both(a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out similar functions as are entrusted to and carried out by that person in relation to the debtor; and (b) the general knowledge, skill and experience that such person has. 280