The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when sentencing them had considered and rejected orders. The defendants now argued that the instant proceedings were an abuse of process.
Held: The court separated the issues of formal jurisdiction and abuse. As to the first, the jurisdiction of the civil court expressly given by s2 must necessarily arise after a conviction and so after the opportunity has arisen for a criminal court to make an order under the same section. No words of qualification are given in the section, so the existence of the jurisdiction conferred on the civil court cannot depend on whether the criminal court has or has not exercised its own power or, if it has not done so, how that came about.
As to the issue of abuse of process: ‘this claim is no more than an attempt by the Secretary of State to obtain a different decision from this court than was given on identical issues by the criminal court, which had the issues placed before it and made a positive decision to refuse an order. It is in my view unfair that the defendants should be thus exposed to the same claim on two occasions. The unfairness is not relieved by the argument that the claim is being pursued by a different entity; firstly I am not persuaded that in fact there is a complete separation between the two applicants, because it appears that the Insolvency Service was in liaison with the prosecutor when he made his application for HHJ Rundell to consider disqualification, so that even if as Mr. Morgan submits, there are criticisms that can be made of that application, it would appear the Secretary of State was content at the time to allow the matter to be pursued in the criminal court rather than at that stage bringing it to the civil court and to some extent at least participated in the application made. Secondly there is the general point that where the basis of the claim and the relief sought is essentially identical it is just as much unfair to the defendant to have to face it twice at the hands of two applicants as it would be if there were only one’.
Cooke David HHJ
 EWHC 2933 (Ch)
Company Directors Disqualification Act 1986 2
England and Wales
Cited – Re Barings and Others (No 3) ChD 1999
The disqualified director sought leave under section 17 to act as a director in circumstances which did not involve him assuming any executive responsibilities, other than of a trivial nature, and left him free to contract as a consultant.
Cited – In Re Cedarwood Productions Ltd; In Re Inter City Print and Finishing Ltd; Secretary of State for Trade and Industry v Rayna and Another ChD 3-Apr-2001
S6 of the 1986 Act proceedings had been stayed pending criminal proceedings in which the defendant was eventually convicted of conspiracy to defraud, sentenced to imprisonment and given a two year disqualification order under s2 by the trial judge, . .
Cited – In Re Cedarwood Productions Ltd; In Re Inter City Print and Finishing Ltd; Secretary of State for Trade and Industry v Rayna and Another CA 26-Jun-2001
Company directors had had civil proceedings for disqualification suspended pending the outcome of criminal proceedings arising from the circumstances of the failure of their companies. They had variously suffered penalties including criminal . .
Cited – Re Denis Hilton Ltd ChD 2002
A director was prosecuted for the criminal offence of fraudulent trading, and in light of that the Disqualification Unit at the Insolvency Service decided not to pursue its own disqualification application under s6 but to ask the prosecution to seek . .
Criticised – Secretary of State v Nimley ChD 5-Feb-2002
Directors had been tried and convicted of offences which could have founded a s2 disqualification order. After they had been sentenced and left the dock, prosecuting counsel said to the judge: ‘Your Honour has made no reference to disqualification . .
Cited – Iberian UK Ltd v BPB Industries plc ChD 1996
Proceedings in front of an administrative body (the Commission) which were subsequently appealed to a court (CFI and ECJ) did not give rise to an issue of estoppel between the investigatee/appellant and the complainant / intervener. The fact that . .
Cited – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
Cited – Secretary of State for Trade and Industry v Tjolle and Others ChD 9-May-1997
Delay and the probable short period of disqualification are proper reasons for Secretary of State to consider discontinuing proceedings. As to whether a person ‘assumes to act as a director’: ‘It may be difficult to postulate any one decisive test. . .
Distinguished – Spicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2021; Ref: scu.536424