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Cite as: [2016] ScotCS CSIH_13, [2016] CSIH 13, 2016 SC 536, 2016 GWD 9-175

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 13

XA49/15

Lord President

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Appeal

under sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007

MUHAMMAD ARSLAN KHAN

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act: Lindsay QC, Winter; Drummond Miller LLP (for R H & Co Solicitors, Glasgow)

Alt: McIlvride QC; Office of the Advocate General

3 March 2016

Introduction
[1] This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 4 July 2014, which adhered to a decision of the First Tier Tribunal upholding the respondent’s decision to refuse the appellant’s application for leave to remain in the United Kingdom. The appeal concerns whether the FTT erred in its assessment of proportionality in terms of the Article 8 rights of the appellant and his wife. The context of that assessment was the appellant’s genuine marriage to a UK citizen whilst his immigration status was precarious. The case concerns the correct balancing of the individual’s right to respect for his and her private and family life with the state’s right to control immigration. There has been considerable judicial dicta on this subject in recent years; not all of it readily reconcilable. The court is concerned to ensure that the limits of its appellate jurisdiction, when considering the decisions of the immigration tribunals in this type of case, are properly understood. Ultimately, it is primarily for these specialist tribunals to determine whether, notwithstanding that the appellant’s precarious immigration status was known to the spouse when family life commenced, there are weighty factors which tip the balance away from a decision to refuse leave to remain being regarded as proportionate.

Immigration History
[2] The appellant is a national of Pakistan. He entered the United Kingdom on 30 January 2011 on a student visa which was valid until 27 November 2012. The appellant’s studies were ended with the closure of his college in about May 2011. The college’s licence was withdrawn by the Government. The appellant changed address without notifying the respondent. In June 2011 he moved to Inverness, where he worked part time in a takeaway, in breach of the terms of his visa. He commenced a relationship with a British national. She had expressed an interest in Islam. When the police visited the takeaway in October, the appellant said that he was sightseeing and would be going back to London at the end of the month. The couple entered into an Islamic marriage on 16 December 2011. They contracted a civil marriage on 27 January 2012. On 16 September 2012 the appellant applied for leave to remain on the basis of family life with his new wife. This was refused on 8 October 2013. The appellant appealed.

The Tribunals
[3] Before the FTT, the appellant explained that his wife could not live in Pakistan because of certain health issues. Her family was in the UK. She would not be able to adjust to Pakistani culture. She did not speak Urdu or Punjabi, although she had converted to Islam.

[4] The appellant’s wife gave evidence that she was employed and had been supporting the appellant since December 2011. The appellant did receive some funds from Pakistan. Her family, including her elderly parents, were all in the UK. She had previously been married, had lived in Malaysia for 2 years, but divorced in 2009. She would love to go to Pakistan, but was scared to do so because of her health problems and the cultural differences. She would find it hard to move and change her way of life.

[5] In its decision dated 6 March 2014, the FTT concluded that it had not been demonstrated that there were “insurmountable obstacles to family life ... continuing outwith the UK” in terms of the Immigration Rules (HC395); notably, Appendix FM: family members Rule EX1.(b). Whilst the appellant’s wife had stated that she preferred not to go to Pakistan, that did not constitute an insurmountable obstacle in terms of the rule. There was no evidence that she would not be able to access medical treatment in Pakistan. She was able to work full time, travel and had spent two years living in Malaysia.

[6] Under reference to R v Secretary of State for the Home Department [2004] 2 AC 368 and Huang v Secretary of State for the Home Department [2007] 2 AC 167, the FTT embarked upon a proportionality assessment in terms of Article 8. The FTT observed that the appellant had entered into family life with his wife in the knowledge that his immigration status was precarious. His wife had been aware of his status from the beginning of their relationship. The FTT concluded that the removal of the appellant was in accordance with the law. It had not been demonstrated that any interference would be disproportionate. The respondent had not made reference to the appellant’s option of applying for leave from Pakistan. It had not been shown that his removal to do so would be unreasonable or harsh.

[7] In its decision dated 4 July 2014, the UT decided that the FTT had correctly directed itself on the law and had given adequate reasons. Its determination contained no errors of law. The appeal was almost entirely a re-assertion of the submissions before the FTT. All of the factors relied upon by the appellant had been before the FTT and were reflected in its determination. The FTT had been entitled to make the determination which it had.

Submissions
Appellant
[8] There were three grounds of appeal. The first was underpinned by seven principles set out in the appellant’s written Note of Argument. Since several of these were either not disputed, or not in point in the context of this particular appeal, they are not all reproduced here. The principal submission, under reference to Mirza v Secretary of State for the Home Department 2015 SC 572 (at paras [19] – [20]), was that the FTT had failed to give proper consideration to the appellant’s spouse’s British nationality (and resultant EU citizenship). The proportionality of the interference with the appellant’s Article 8 right had to assume the separation of the couple. It had not been open to the FTT to conclude that any disproportionate interference with the couple’s Article 8 rights could be avoided by stating that the couple might move together to another country. Removal would involve indefinite separation. That was a disproportionate interference with the fundamental right to cohabit as a married couple.

[9] The common error of the FTT and the UT had been to assess proportionality on the basis that the couple would, or should, go to Pakistan. It should have been carried out on the assumption that the appellant would return to Pakistan alone. It was conceded that this may not be an approach of universal application. Each decision was fact sensitive. However, as a matter of principle, it was at least to be presumed that there would be a separation. S v Secretary of State for the Home Department 2015 SLT 651, which had been reclaimed, was in error in so far as it considered that Mirza (supra) and Khan v Secretary of State for the Home Department 2015 SC 583 were inconsistent with MS v Secretary of State for the Home Department [2013] CSIH 52. The dictum that it was not necessary to consider the partner’s UK citizenship in a non-Rules assessment of proportionality was incorrect. There was no test of exceptional circumstances (Khan (supra), at para [11]).

[10] The second ground of appeal was that the FTT had applied the wrong test of “insurmountable obstacles” (Rule, EX.1(b)) when assessing proportionality (R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390, Sales LJ at paras 29-30). A final ground was that the FTT had failed to assess and to consider whether the inability of the appellant’s wife to speak Urdu/Punjabi was an insurmountable obstacle or a relevant factor in the proportionality assessment.

Respondent
[11] The respondent argued that the FTT had considered the appellant’s wife’s British citizenship and had given adequate reasons for its decision. In so far as Mirza (supra) required a proportionality assessment to assume the separation of the couple, it proceeded upon a misunderstanding and misapplication of the law (MS (supra); Jeunesse v Netherlands (2015) 60 EHRR 17; R (Agyarko) (supra)). The UT had been well-founded in holding that the FTT had not treated “insurmountable obstacles” as a substantive test. The UT had been correct in holding that the FTT had made no material error of law in its assessment of the proportionality and that the FTT had had regard to all relevant factors in determining both whether there was any insurmountable obstacle and in carrying out its proportionality assessment.

Decision
[12] There was no dispute in this appeal that the appellant did not qualify for leave to remain in terms of the Immigration Rules, at least partly because there was no insurmountable obstacle to the appellant’s family life continuing with his wife in Pakistan (cf Rule EX1.(b)). The Rules are designed to cover the considerations that are relevant to an Article 8 claim in the normal case. In general, the application of the Rules will ensure that the proportionality assessment is properly carried out. However, this does not dispense with the obligation on the respondent to comply with the provisions of the Convention. If a family life claim is made, where the applicant does not qualify under the Rules, the respondent must consider that claim. It was not disputed that there is a family life within the meaning of Article 8. The issue before the FTT, in so far as relevant to this appeal, was whether the respondent ought to have been granted leave to remain outside the Rules on the basis that removal would be a disproportionate interference with the Article 8 rights of both the appellant and his wife.

[13] It is important not to over-complicate the exercise which the immigration tribunals require to carry out in this, relatively common, situation. Elaborate re-statements of multi-facetted tests are seldom necessary at first instance level. Assuming, as it normally should be with specialist tribunals regularly operating Convention jurisprudence, that the decision-maker is familiar with the concept of proportionality as explained in Bank Mellat v HM Treasury [2014] AC 700 (Lord Reed at para 74(4)), an appellate court should be slow to find fault in a tribunal decision which has taken into account all of the relevant circumstances and contains an apparently well-reasoned conclusion. The appellate court is restricted to adjudicating on whether there is an error of law in the tribunal decision (Tribunal, Courts and Enforcement Act 2007, s 13).

[14] In making judgments upon proportionality in the context of Article 8 claims in immigration cases, a tribunal will require to take into account a number of circumstances, albeit that it may not need to revisit or expressly repeat findings covered already in its decision under the Rules. The European Court of Human Rights has emphasised that, in assessing Article 8 claims in the immigration context, regard must be had to the fair balance that has to be struck between the competing interests of the individual on the one hand and the community as a whole on the other (Jeunesse v Netherlands (2015) EHRR 17, para 106). Article 8 cannot be seen as imposing on a state a general obligation to respect a married couple’s choice of their country of residence or to authorise family reunification in its territory (ibid at para 107).

[15] The extent of a state’s obligation will vary according to the particular circumstances of the persons involved and the general public interest. Factors to be taken into account in this context include: the extent to which family life would in fact be ruptured; the extent of the parties’ ties in the contracting State; whether there are obstacles (insurmountable or otherwise) in the way of the family living in the country of origin of the applicant for leave; and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (Butt v Norway (App no 47017/09), 4 December 2012, at para 78, following Nunez v Norway (App no 55597/09), 28 June 2011 at para 70 citing, inter alia, Da Silva v Netherlands (2007) 44 EHRR 34 at para 39).

[16] Most important in a case of this nature, the European Court has repeatedly said that, where the family life is created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious, it is likely to be only in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (Jeunesse v Netherlands (supra) at para 108; Da Silva v Netherlands (supra) at para (39); Butt v Norway (supra) at para 78).

[17] A significant problem which the court faced in interpreting Mirza v Secretary of State for the Home Department (supra), was the sentence (in para [19]), under the heading “Discussion”, and following separate headings for the parties’ arguments, which reads “The assessment had to be conducted on the basis of separation of the couple”. This was replicated in the appellant’s written Note of Argument and, not surprisingly, founded upon heavily by him in oral submission. This was entirely understandable until, as was submitted by the respondent, it is realised that in this particular passage, the court appears to be reprising a submission. It is not part of the ratio decedendi. This finds support in the citation of Sanade and Others (British Children-Zambrano-Dereci) [2012] Imm AR 3 as supportive of the “petitioner’s position” rather than underpinning the reasoning of the court. In Sanade, the concession made by the respondent’s civil servant appears to relate to the engagement of Article 8, not to the assessment of proportionality.

[18] There is no reason requiring the decision-maker to proceed on the basis that a couple will inevitably be separated by removal of the applicant. In many cases, the evidence may point to the contrary. Relocation to the applicant’s country of origin outside the EU may involve minimal inconvenience. The tribunal has to decide, in a precarious case, whether it is proportionate to require the British, and hence EU, citizen to make a choice between separating or relocating pending determination of an application to enter as a dependent spouse. One factor in the tribunal’s assessment must be the practical possibility of relocating. The assessment will depend upon many factors. In some, perhaps most, cases the evidence on just what the British citizen will do may be unclear. Whether that is so or not, the tribunal need not proceed on an assumption that the couple will separate, or indeed that they will not do so. The ultimate proportionality assessment remains one of considering all the circumstances.

[19] Jeunesse v Netherlands (supra) was not cited in Khan v Secretary of State for the Home Department (supra), in which the Court rejected (at para [11]) the need for exceptional circumstances. On the face of Jeunesse, whilst not ignoring the need to treat many European Court cases as decisions applicable only to their particular facts, the contention that an appellant does not require to demonstrate exceptionality, where there is a known precarious status, is not a sound one; even if exceptionality is not to be elevated into a formal test. The reasoning of Sales LJ in R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390 is highly persuasive in its exploration (at paras 29 and 30) of the need for exceptional circumstances and the dimensions of the gap between these circumstances and insurmountable obstacles in precarious family life cases. By such circumstances may simply be meant the identification of weighty factors in favour of an application sufficient to overcome the normal result in this type of precarious status case (Re Izuazu (Article 8-New Rules Nigeria) [2013] Imm AR 453, Blake P at paras 69 and 78).

[20] Confronting the authorities of the host country with family life as a fait accompli does not, in itself, result in those authorities being under an obligation to allow the applicant to settle in that country (Jeunesse, supra, at para [103]. On the contrary, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (Da Silva v Netherlands ((supra) at para 43).

[21] The FTT properly considered whether the appellant could satisfy the terms of the Immigration Rules and concluded, correctly, that he could not. The FTT then, as he was required to do, considered whether the claim might nevertheless succeed on the basis of Article 8. He concluded that the appellant had established family life with his wife in the UK in terms of Article 8, but that removal would not amount to a disproportionate interference with Article 8 rights. The FTT gave detailed reasons for the refusal to grant leave to remain.

[22] The marriage was entered into at a time when the appellant’s immigration status was precarious. It was of short duration, There were no children. The appellant’s wife was not financially dependent upon him. The FTT was not satisfied as to the claims regarding health concerns. The appellant’s wife had converted to Islam and had previously adapted to life in Malaysia. The appellant had family in his country of origin. The appellant might not require to be absent from the UK for long, as he could apply for entry from abroad as the spouse of a British citizen.

[23] In all these circumstances, the FTT was entitled to reach the conclusion that the appellant’s case did not amount to a disproportionate interference with the Article 8 rights of the appellant or his wife. There were no weighty or exceptional factors which could have justified granting leave outwith the Rules on the basis of Article 8 proportionality. There is no basis for holding that the FTT arrived at his conclusion by leaving out of consideration the wife’s nationality. The FTT did not regard “insurmountable obstacles” as a test in this equation. He noted the evidence and submission that the appellant’s wife did not speak Urdu or Punjabi. He recorded that he did have regard to these matters and mentions them repeatedly. Indeed, he noted the wife’s ability to adopt to another culture and her conversion to Islam as a way of life.

[24] For these reasons, the appeal is refused.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 13A

P1283/12

Lord Menzies

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LADY SMITH

in the Reclaiming Motion by

THOMAS HAMILTON

Petitioner and Reclaimer;

against

Secretary of State for Business, Innovation & Skills for a Disqualification Order

Act: Party

Alt: Duthie; Shepherd & Wedderburn LLP

13 January 2016

[1] After proof, the Lord Ordinary held that, on the facts found by him, the reclaimer’s conduct when a director of Ascot Care Homes Limited (“Ascot”) had been such as to show that he was unfit to be concerned in the management of a company. The reclaimer, Mr Hamilton, challenges that conclusion. He does so for the reasons set out in his 32 grounds of appeal, as expanded on in his detailed note of argument, both of which we had the opportunity to consider fully in advance of today’s hearing.

[2] The position of the respondent, the Secretary of State for Business, Innovation and Skills is that the Lord Ordinary did not err; no colourable basis to impugn the Lord Ordinary’s findings and conclusion has been made out and the reclaiming motion should be refused. We should, he says, adhere to the decision of the Lord Ordinary.

Background

[3] Turning briefly to the relevant background, Ascot went into administration on 22 December 2010 but before then, it had operated four residential care homes in Scotland. Between 2008 and that date, Mr Hamilton was a director of Ascot. He owned 50% of its issued share capital. The care homes were leased from Endless Investments LLP, which was owned by Mr David Newett, and two other individuals. David Newett and Mr Hamilton had done business with each other for many years always, according to Mr Hamilton, on the basis of a handshake. Between 2008 and 2009 Endless lent approximately £190,000 to Ascot and in October 2009 two variable rate secured loan notes were issued to cover those borrowings. As a result, fixed and floating charges were created over Ascot’s assets, in favour of Endless. It was in relation to those securities that administrators were appointed.

[4] Turning to the Secretary of State’s contentions, these disqualification proceedings were brought because, on the information disclosed during the administration, he considered it to be apparent that Mr Hamilton had misappropriated funds of Ascot in breach of his fiduciary duties as a director and in all the circumstances it was demonstrated that he was unfit to be concerned in the management of a company. Section 6(1) of the Directors Disqualification Act 1986 accordingly applied and the court had a duty to pronounce a disqualification order for an appropriate period.

[5] As to the misappropriation of funds, the Secretary of State contended that Mr Hamilton had caused Ascot to pay him sums totalling £158,843.68, all of which he used for his personal benefit or for the benefit of persons connected to him. Mr Hamilton’s position was that he accepted he had received the sums but contended that the payments had all been authorised. The Secretary of State also relied on Mr Hamilton’s conduct in relation to payments to Ascot from local authorities for the cost of residents’ personal care in implement of their obligation to provide such care free of charge (“FPC”). Since the system operated by Ascot involved charging residents for the full cost of their care - including the FPC element - in advance, those sums did not, as Mr Hamilton accepted before us today, belong to Ascot but required to be reimbursed to the residents or in the case of any who had in the meantime died, their estates. Mr Hamilton signed a joint minute (number 58 of process) in which he agreed that the schedule forming 6/183 of process summarised the FPC payments received by Ascot from local authorities, the sums reimbursed to residents and the time taken to effect reimbursements and that it was accurate. That schedule showed that the sum outstanding to residents, as at 22 December 2010, was just over £23,000 and that reimbursements were delayed. If, for instance, one takes the period March to September 2010 the average retention time was between seven and nine weeks.

The Lord Ordinary’s Decision

[6] Turning to the proceedings before the Lord Ordinary, he heard evidence from a number of witnesses as explained in his opinion. Two of the witnesses who gave evidence about matters from the perspective of Endless - Mr Wilson and Mr Robson - were found by the Lord Ordinary to be impressive, credible and reliable. He explains how and why he reached that conclusion. He also found Mr Newett to be a credible witness and to be largely reliable and again he explains why. He did not find Mr Hamilton to be an impressive witness and, importantly, on the material matters that were in dispute, particularly on whether or not the payments to Mr Hamilton were authorised, he found his evidence to be neither credible nor reliable. On the matter of payments to Mr Hamilton, the Lord Ordinary did not accept that there had been any oral agreement, understanding or acquiescence between any of the Endless partners and Mr Hamilton. But even if there had, he concluded that as a matter of law that would not have sufficed because, as Mr Hamilton accepted, there had been no board resolutions in either company approving the payments as being remuneration due to Mr Hamilton nor did the law confer any right on a director to payment quantum meruit nor was there any merit in an argument to the effect that the absence of a resolution didn’t matter because, if the issue had been put to the members of Ascot, it would have been approved; the evidence did not support the conclusion that the relevant members would have been fully informed or would have been unanimous in their decision. These were all unauthorised payments and the law did not permit them to be regarded in any other way.

[7] Regarding the FPC monies, the Lord Ordinary approached matters on the basis that the sums due and outstanding to residents as at the date of administration were of the order of £23,000, in accordance with the agreement in the joint minute. But it is clear that what weighed with him most on this chapter of evidence was what the facts he found proved told him about Mr Hamilton’s lack of probity. Mr Hamilton had accepted in evidence that he had said, when interviewed, that he regarded the FPC payments as part of Ascot’s working capital and the Lord Ordinary concluded from all the evidence that Mr Hamilton’s approach was to treat the residents as any other ordinary creditor when it came to reimbursement of the FPC element. In those circumstances, the Lord Ordinary regarded it as being a matter of breach of trust by Mr Hamilton. Further, it was a breach of trust which had consequences. The residents and their families ranked as ordinary creditors and at the end of the day received nothing.

Case for the Reclaimer

[8] Turning to Mr Hamilton’s grounds of appeal and his submissions in support of them, his 32 grounds make it clear that he takes issue with many of the Lord Ordinary’s findings in fact. And, in particular, that he considers that Mr Wilson and Mr Robson committed perjury. It is also clear that he feels very strongly that Ascot should not have been put into administration and that, in fact, the administration was invalid. He feels very strongly that the Endless directors behaved badly and let him down and that the administrators acted on a concerted basis pre-administration and fraudulently both then and thereafter. These are all matters which he considers should have been explored and should have resulted in it becoming apparent that the Secretary of State’s case was ill‑founded. The Lord Ordinary should, Mr Hamilton says, have dealt with the fact that, as he puts it, it was not his and Mr Newett’s practice to put their agreements into writing nor was it the habit of Ascot or its holding company to record written resolutions. He should also have dealt with the impact of the financial crash in 2007.

[9] In his note of argument, Mr Hamilton expands on these matters under reference to evidence given at proof and contends that conclusions adverse to Endless, adverse to Mr Wilson, Mr Robson and Mr Newitt and favourable to his case ought to have been reached when it came to determining the whole facts. It is clear that those whole facts, as Mr Hamilton sees it, go considerably wider than the discrete issues of whether or not the remuneration payments to him that were founded on by the Secretary of State were authorised and how the free personal care payments were treated by him. In some respects they were matters which ought to have been explored and decided in the way he sets out in his note because they were mitigatory in nature. Mr Hamilton, separately, complains that as a party litigant he was at a disadvantage and was, in a number of respects, taken by surprise both when giving evidence and when handling his own case.

[10] Before us today Mr Hamilton highlighted the following. First, that whilst he accepted that the law was to the effect that it was not open to him to challenge the validity of the administration in these proceedings, as explained by the court of appeal in the case of The Secretary of State for Trade and Industry v Jabble 1998 1 BCLC 598, it meant that, at proof, the underlying validity of the administration could not be examined under law such as that applicable under the Corporations Act 2001, (for which Mr Hamilton referred to a document headed “Australian Corporate Law” on which it is noted that it emanates from a book entitled “Australian Legal Extracts”). Under that law, it was possible for a director to defend himself on the basis of matters relating to the administration. Mr Hamilton believed he had acted properly and if there had been able to be deeper exploration of the basis of the administration, that would have been apparent. Secondly, he felt strongly that the Lord Ordinary’s conclusions on the FPC matter were erroneous. He took issue with the figure of £23,000 notwithstanding the agreement in the joint minute to which we have already referred. That agreement was entered into at a stage when he did not, he said, have all the information. That information showed him that the figures were wrong and had been, he said, tampered with. The evidence against him was not, he said, substantiated. In any event, his director’s responsibility was confined to the terms of the contracts with the individual residents. That said, he did accept that the FPC monies were not Ascot’s property. Thirdly, regarding the evidence of Mr Wilson and Mr Robson, it was full of lies. The truth was that Endless infact had no cash resources at all although they had given the impression that they had. That was an inference he drew from a handwritten note on a certificate attached to documents produced in response to a court order. It stated that neither Endless nor an investment body (AHI) had facilities from Lloyds Bank during a specified period. Mr Hamilton concluded from that that they had no cash resources at all. It was he said a matter of mitigation. He was trying to grow a company and all he got in return was to be, as he put it, slammed and made a scapegoat.

Case for the Secretary of State

[11] For the Secretary of State, in response, we were provided with a detailed note of argument which we were also able to consider fully in advance of today’s hearing. We note that there are essentially three strands to the Secretary of State’s opposition to this reclaiming motion. First, it is said that Mr Hamilton is seeking to have this court interfere with the Lord Ordinary’s findings in fact in circumstances where it is not, for the reasons explained by the UK Supreme Court in the cases of McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Limited 2014 SC (UKSC) 203 entitled to do so. The contention for the Secretary of State is that, on the evidence led, the Lord Ordinary was clearly entitled to make the findings in fact which he made. There was ample evidence to support them and furthermore his conclusions are clearly explained. Secondly, insofar as Mr Hamilton’s grounds of appeal criticised the Lord Ordinary for failing to canvass peripheral matters such as whether Endless or anyone else caused Ascot to be in a position which led to their administration, or whether they or anybody else were to be criticised in relation to the decision to call in administrators or in relation to the conduct of the administration, the Lord Ordinary had infact dealt with all of these matters at paragraph 70 of his opinion. Thirdly, insofar as Mr Hamilton’s grounds of appeal relied on his status as a party litigant and contended that he was at a disadvantage, counsel for the Secretary of State referred to the guidance of this court in Martin Wilson v Lanarkshire Counsel 2014 CSIH 26 and submitted that no relevant criticisms could arise in the present case.

Decision

[12] We turn to our decision. The question for the Lord Ordinary was whether or not it had been shown Mr Hamilton was unfit to be responsible for the management of a company. If it had, then he required to disqualify him for such period as he considered appropriate. He did disqualify him and ordered that his disqualification be for a period of nine years, in accordance with the guidance as to the appropriate length of a director’s disqualification provided in R v Sevenoaks Stationers (Retail) Ltd 2001 [1991] Ch. 164 . No issue is taken with the period of disqualification. The only issue was whether or not Mr Hamilton’s lack of fitness has been demonstrated.

[13] We have given careful consideration to all the points made by Mr Hamilton in the written arguments presented in his 32 grounds and in his note of argument. We take account of his being a party litigant and not, accordingly, familiar with the law. We have carefully scrutinised his arguments to see if there is anything in them which ought to be regarded as a point of law rather than a disagreement with the Lord Ordinary’s findings in fact on the evidence before him. We cannot, however, find any such point. Mr Duthie is, we consider, correct in his submission that the Lord Ordinary’s findings cannot be impugned because there was ample evidence in support of them and it was evidence which he found to be credible and reliable. Insofar as the criticisms of his opinion were in relation to his reasoning we cannot accept that there is any deficiency in his opinion in that regard. Indeed, his reasons for finding as he did are lucid and clear. Furthermore, when he had to consider the relevant law not only in relation to the provisions of the 1986 Act but as to what, according to company law, is required before a director is entitled to remuneration, his analysis and application of it is not challenged in any way.

[14] Regarding the various matters relied on by Mr Hamilton other than his director’s remuneration and FPC, the Lord Ordinary deals with these at paragraph 70 of his opinion and he explains there with some care why in the end of the day he did not accept that Mr Hamilton’s view of these matters was correct and how they did not in any event affect the central conclusions regarding the unauthorised payments and FPC monies. As for Mr Hamilton’s position as a party litigant again we have scrutinised his arguments less there was some merit in the argument that he was put at an unfair and uncorrected disadvantage. None of the potential difficulties highlighted in the Wilson guidance arose here however, and we cannot identify any other point which satisfies us that he suffered any injustice on this account.

[15] In all these circumstances we will refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.