The Secretary Of State For Trade And Industry V. Joseph Henry Campleman And Charles Mcfaull Campleman And Elizabeth Campleman And Claire Campleman
| Jurisdiction | Scotland |
| Judge | Lord Johnston |
| Date | 28 October 1998 |
| Court | Court of Session |
| Published date | 06 February 1999 |
| OPINION OF LORD JOHNSTON in Petitions of THE SECRETARY OF STATE FOR TRADE AND INDUSTRY Petitioner; against JOSEPH HENRY CAMPLEMAN, CHARLES McFAULL CAMPLEMAN, ELIZABETH CAMPLEMAN, CLAIRE CAMPLEMAN Respondents; for A disqualification order in terms of the Company Directors Disqualification Act 1986 ________________ |
28 October 1998
In these four petitions, the Secretary of State for Trade and Industry seeks disqualification orders in respect of the Companies Directors' Disqualification Act 1986, ("the 1986 Act") against all four respondents alleging unfitness on the part of each of them to be concerned in the management of a company. The four respondents were all directors of the same company and the petitions are to all intents and purposes identical.
The respondents respectively lodged answers stating inter alia a preliminary plea to the competency of the applications on the basis of statutory time bar.
The case called before me on Procedure Roll upon the basis that those pleas would be argued. Mrs Wolffe, who appeared for the petitioner, informed me that she had understood from those instructing her, that at least one of the respondents would be present in court to argue the point but, despite some indulgence of time and a number of callings over a period an hour, no such appearance materialised. Mrs Wolffe thereupon moved me to repel the plea to competency in each process but being such, I took the position that I required to be satisfied by argument that the pleas fall to be repelled and Mrs Wolffe readily responded to that request.
The basic power, which is in fact a duty in respect of disqualification of company directors on grounds of unfitness to hold office, is to be found in Section 6 of the 1986 Act and effectively requires there to be both the presence of the element of insolvency in the relevant company, and conduct on the part of a respondent rendering him unfit. If those two elements are satisfied, the court must impose a disqualification although it has a discretion as to length of time.
Against that background, an application to obtain a disqualification in terms of Section 7(2) of the same act "shall not be made after the end of the period of 2 years beginning with the day on which the company in which that person is or has been a director became insolvent". Thus it is self evident that in any given case, the particular date has to be established to meet the phrase "day on which the company became insolvent".
To determine that matter as a matter of general law, it is necessary to turn to the Insolvency Act 1986 which provided inter alia by Section 247(2) as follows:-
"For the purpose of any provision in this Group of Parts, a...
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