The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights and/or breached his duty to act fairly, in that they had failed to disclose material of assistance to the directors, and had allowed a bank have the run of the prosecution.
Held: The application failed. Though the consequences of a disqualification are serious, such proceedings were not criminal in nature, and the duties of the Secretary of State did not extend to supervision of the investigation, and nor to create a duty as to the collection of evidence, but only as to the disclosure of what had been assembled. The court suggested other possible remedies for a director who felt he had been treated unfairly. In this case the relevant documents had been disclosed, even if only tardily. The other complaints were matters capable of being dealt with by the judge on the hearing of the disqualification application, and went as to the strength of the case, not as to abuse. As to the obtaining of documentation: ‘section 7(4) may not entitle the Secretary of State to insist on the production of much, if anything, that a defendant could not have sought by means of an application for non-party disclosure.’
Judges:
Newey J
Citations:
[2010] EWHC 2518 (Ch), [2011] Bus LR 457
Links:
Statutes:
Company Directors Disqualification Act 1986 7(4) 16, European Convention on Human Rights 6
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Hennessey (Timothy) CACD 1978
The court considered the obligations of the prosecution on disclosure. The courts must: ‘keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led . .
Cited – Sinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
Cited – Jespers v Belgium ECHR 1981
ECHR (Commission) Article 6, paragraph I of the Convention
(a) A virulent press campaign can, in certain circumstances, adversely affect the fairness of a trial and involve the State’s responsibility, . .
Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Re Walter L Jacob Ltd CA 1989
Having authorised an enquiry under section 447, the Secretary of State presented a winding-up petition of the respondent, an authorised dealer in securities. The company had been obliged to cease trade by its regulatory body. The judge held that the . .
Cited – Dombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
Cited – Re Moonlight Foods Ltd , Secretary of State for Trade and Industry v Hickling 1996
The Secretary of State, when presenting an application for the disqualification of a company director is obliged to present a balanced picture. ‘It is accepted that these are not ordinary adversarial proceedings but have an element of public . .
Cited – British Broadcasting Corporation v United Kingdom ECHR 18-Jan-1996
(Commission – Admissibility) The Corporation complained that it had been served with a witness summons obliging it to to hand over materials in its possession, both broadcast and not-broadacst being coverage of a riot. . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Re Finelist Limited ChD 2004
Laddie J discussed the seriousness of the consequences of a director’s disqualification, saying: ‘It is the seriousness of these consequences and the fact that such orders are sought by the [Secretary of State] on behalf of the public which should . .
Cited – Official Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
Cited by:
Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
Lists of cited by and citing cases may be incomplete.
Company, Human Rights, Litigation Practice
Updated: 26 August 2022; Ref: scu.425967