Scottish Court of Session Decisions

Act : A.F. Stewart; Steedman Ramage WS

1. Legislative Background

[1] The Company Directors Disqualification Act 1986 (c.46), provides that :

"6(1) The Court shall make a disqualification order against a person in any case where.....it is satisfied -

(a) that he is or has been a director of a company which has at any time become insolvent.....and

(b) that his conduct as a director.....makes him unfit to be concerned in the management of a company.....

(4)..... the minimum period of disqualification is two years and the maximum period is 15 years."

 

 

 

[2] Section 9 requires a Court to have regard to certain particular matters contained in Schedule 1 and these include :

"Part I .....4. The extent of the director's responsibility for any failure by the company to comply with.....(a) section 221 (companies to keep accounting records)

Part II....6. The extent of the director's responsibility for the causes of the company becoming insolvent."

2. Facts

1. ADMITTED

[3] Glendene Protective Services Limited was incorporated in 1974 and traded as an industrial painting and shotblasting concern. The respondent held 50% of its shares with the balance held by another decorating concern. He became a director in 1986 and was the sole director from 1992. The company was the subject of a members' voluntary winding up resolution on 6^th September 1996 and was dissolved on 15^th April 1998. At the time of the resolution, it was insolvent.

[4] Prior to the resolution, the company had been trading for about two years during which there was no reasonable prospect that its creditors could be paid in full. In each year from 1991 onwards the company's current liabilities exceeded its assets and from 1992 onwards its net liabilities also exceeded its assets. This was shown in the audited accounts for 1991, 1992 and 1993, which the respondent signed in October 1992, June 1994 and October 1994 respectively and in draft accounts for 1994 and 1995, sent to him in March 1996. Despite an increasing turnover, the company made a net loss in each of these years.

[5] The accounts showed, from 1993 onwards, increasing amounts owed to the Government in the form of Value Added Tax, tax due under the Pay As You Earn scheme and National Insurance. In the 1993, 1994 and 1995 accounts, the total amounts owed were : £33,685, £67,455 and £107,919. By the date of the resolution, the sum had grown to £205,976. On the other hand, at that date, there was only one trade creditor and it was owed only £5,571. In October 1994, the respondent had a meeting to discuss the solvency of the company with his accountants. He expressed optimism that the company could trade profitably in the future. It did not. From at least then it was effectively using money owed to the Government as working capital. In 1995 the amount of directors' remuneration increased by 50% to £36,226.

[6] There were failures to comply with the requirements of section 221 of the Companies Act 1985 in respect that a number of business books and supporting vouchers were not kept. The respondent withdrew unexplained cash sums from the company by using a Business Visa card. There were also breaches of section 242 of the Act in that audited accounts of the company were not delivered timeously to the Registrar of Companies.

[7] The respondent was currently the director of Protective & Decorative Surface Coatings Limited, which carries on a business similar to that of the liquidated company. There was no present difficulty with his mental health.

2. DISPUTED

[8] The petitioner averred that the respondent knew from at least October 1994 that the company had no realistic prospect of being able to regain net solvency and to avoid some form of insolvent event. The respondent replied that :

These averments were coupled with a general admission of the petitioner's "factual averments" but I was advised that the petitioner accepted that this admission was not intended to cover the petitioner's positive averment about what the respondent "knew or ought to have known". The petitioner denied that the respondent had any form of mental health impairment.

[9] The petitioner averred that the respondent was responsible for failing to remit monies owed to the Government. The respondent replied :

Again, despite a general admission of the petitioner's "factual averments" and the precise wording of this response, I gathered that the reply was intended to mean that the petitioner's averment about the respondent being "responsible" for non payment was "denied". In relation to the statutory failures, which the petitioner claimed were caused by him, the respondent averred :

In response to the petitioner's reference to the statutory provisions entitling the Court to make a disqualification order, the respondent stated :

I should add here that the petitioner asked leave to amend to include formal denials of the respondent's averments in the answers to the seventh and ninth statements of fact and this was not opposed.

1. Submissions

(a) PETITIONER

[10] Counsel for the petitioner maintained that the averments of the respondent quoted above relative to the respondent's mental state were irrelevant and that the Court should therefore, in the absence of any other substantive answer to the petition, grant the prayer of the petition to make an order that the respondent should not :

"without leave of the Court be a director of a company or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company for a period of not less than two nor more than fifteen years as the Court shall consider proper".

The purpose of the legislation was to protect members of the public and potential creditors of limited companies and to ensure that the directors of such companies complied with the standards required of persons operating with the privilege of limited liability. The Act provided a two stage procedure. First, the Court had to determine whether the conduct was such as to make the director unfit. Secondly, it had to determine the period of the disqualification. In neither part of this procedure was the mental state of the director a relevant consideration.

[11] In relation to the unfitness of the director, the question was whether the conduct complained of fell below the standards of probity and competence appropriate for persons fit to be directors. If it did then disqualification had to follow no matter whether the Court thought that the director was now fit to be a director (In re Grayan Ltd. [1995] Ch 241, Hoffmann LJ at 253-254; Secretary of State for Trade and Industry v Bannister [1995] 2 BCLC 271, Morritt LJ at 276). Although any mental element might be taken into account in determining criminal culpability, that element did not effect the suitability of a person to be a director (Goodman (1993) 14 Cr App R (S) 147, Staughton LJ delivering the opinion of the Court at 151). Indeed, medical unfitness was further evidence of unfitness rather than mitigation as it ought to have prompted the director to resign (Re Stoneacre Ltd. 22 August, unreported (and untraced by counsel) quoted in Mithani : Directors' Disqualification (2^nd ed.) para 1679).

[12] The reference to the "extent of the director's responsibility" in the Schedule was to whether a particular director had administrative responsibility within a company's structure for the particular failure rather than to some wider concept of culpability (see e.g. Re Wimbledon Village Restaurant Ltd. [1994] BCC 753, Michael Hart Q.C. at 765; Re Cladrose Ltd [1990] BCLC 204, Harman J. at 207 and 213).

[13] The question of mental capacity was also not relevant to mitigation of the potential period of disqualification (Mithani (supra)). Therefore, the answers to the petition should be repelled and the prayer of the petition granted since there was no other substantive defence to that prayer raised. In relation to the appropriate period, six years was appropriate. The case fell into the lower end of the middle bracket of cases described in In re Sevenoaks Stationers (Retail) Ltd. [1991] Ch 164 (Dillon LJ at 174).

(b) RESPONDENT

[14] Counsel for the respondent moved for a proof before answer. He invited me to repel his second plea but maintained that his other two pleas should remain standing, viz. :

"1.The respondent's conduct not having been such as to make him unfit to be concerned in the management of a company, the prayer of the petition should be refused.

3. The respondent having been ill and incapax when he committed the conduct complained of, any period of disqualification should be assessed accordingly."

Counsel said that there was little disagreement on the law generally. He accepted that the making of a disqualification order was manadatory where the director's conduct at the time made him unfit and that section 9 and the Schedule gave the Court some guidance on the factors to be taken into account. However, the use of the words "the extent of the director's responsibility" in the Schedule did involve considering the degree of blame involved and not just administrative divisions. Any extenuating circumstance would have to be taken into account (In re Grayan Ltd. (supra), Hoffmann LJ at 253-254; cf Re Polly Peck International plc (No. 2) [1994] 1BCLC 574, Lindsay J at 583 on present unfitness; In Re Pamstock Ltd. [1994] 1 BCLC 716, Vinelott J at 736-7).

[15] The issue was ultimately a "jury question" (In re Sevenoaks (supra) Dillon LJ at 176) There was nothing to preclude mental state being an extenuating circumstance. Where issues such as dishonesty were involved, mental state must be a consideration. Of course, it may be that it could be said that a person with insight into a deteriorating mental state should resign from any directorships but that was not the issue focused in this case. It had to be possible to excuse conduct because of some personal circumstance existing at the time of the conduct, such as the director being in intensive care or being the subject of coercion. All the respondent was asking here was an opportunity to put these circumstances forward at a proof.

[16] Counsel also submitted that such circumstances must also be relevant to the period of disqualification. In this case, the period should be the minimum one given the mitigating factors.

2. Decision

[17] In In re Grayan (supra) Hoffmann LJ said (at 253-254) :

[18] I agree entirely with this approach. The Court is concerned with measuring whether the conduct founded upon by the Secretary of State makes the director unfit to be concerned in the management of a company. That measurement is done by looking at the conduct at the time and not by reference to circumstances occurring after the conduct and/or existing at the time of the hearing but potentially bearing on the director's current fitness. Thus an improvement in a director's general conduct, expressions of regret or remorse or a proved change in attitude on the part of the director will not avoid a disqualification order. However, the conduct complained of cannot be looked at in isolation, outwith its context or setting. The circumstances surrounding the conduct and existing at the time of the conduct may have to be looked at to determine whether the conduct in its context or setting renders the director unfit.

[19] Personal circumstances applying at the time of the conduct are one example of what may relevantly be taken into account. If, to take one example, a director has been in intensive care at the time of admitted Companies Act defaults, it would be hard to declare him thereby unfit even if he were the responsible, or indeed the only, director. Where issues of honesty arise, as they may do here in relation to the non payment of Government debts, the mental state of the director may be a factor in assessing his commercial probity and general honesty. Whether the personal circumstances ultimately have a decisive or substantial effect on the Court's assessment of unfitness stemming from the conduct will, in a given case, no doubt depend upon the particular facts of that case. Where a director alleges that his mental state has prompted him to do particular things or fail to do others, it may be that the Secretary of State can make out an alternative case that his failure to resign in the face of his having some insight into his failings itself amounts to conduct rendering him unfit (the apparent result in Re Stoneacre Ltd. (supra)). That allegation has not, as yet, been made in this petition. Again, whether such an argument were to succeed or not may depend upon the particular facts and circumstances and, perhaps of some importance, the degree of mental impairment established in evidence.

[20] As Dillon LJ said in In re Sevenoaks Stationers Ltd. (supra) relative to judicial guidelines on the topic (at 176) :

Approaching it in that manner, the judge hearing the proof will no doubt answer the jury question of unfitness after examining the relevant conduct not on its own but in the context of the surrounding circumstances including the respondent's mental state.

[21] For similar reasons, these circumstances may also be relevant to the determination of the length of the disqualification. The contest on the length of penalty, should unfitness be made out, appears to be between the lowest end of the "middle bracket" and the lowest end of the "minimum bracket" described in In re Sevenoaks Stationers Ltd. (supra, Dillon LJ at 174). That will involve a determination by the Court of whether the case is "serious" or "not very serious". Again, the question and degree of the respondent's honesty or probity may well prove important in selecting both the bracket and the correct point within it. In order to do so, not only the conduct should be considered but also its context and setting.

[22] In all the circumstances, I will : (1) allow the record to be amended by adding at the end of statements of fact 7 and 9 "The respondent's averments in answer are denied"; (2) repel the second plea-in-law for the respondent; and (3) since the petitioner has effectively raised a preliminary plea relative to the respondent's answers, allow a proof before answer on all the averments in the petition and answers.