Disqualification: deterrence or part of the regime?

Published on
2 min read

The applicant had given an undertaking in 2009 and then secured leave to be a director. The applicant breached the conditions of leave (which included the timely payment of VAT). The applicant gave a further disqualification undertaking in 2015, which lasts until 2021. The applicant applied for leave to be a director of two companies.

At first instance, the application was dismissed (notwithstanding the Secretary of State’s neutrality). This decision was based on factors that included the need to protect the public, which “would inevitably weigh more heavily” in the circumstances.

On appeal, the court gave a useful summary of the principles to consider when applying for leave to act as a director, including that the onus is on the applicant to persuade the court on the merits of giving permission and that the court’s discretion is unfettered. 

The court should have regard as to the nature of the conduct that gave rise to the disqualification; where that conduct includes dishonesty, the court may be reluctant to give leave. However, deterrence and public protection should be considered in the context of “a fair minded and informed member of the public, and not one who had been told the bare headlines”.

This case is a reminder that the giving of leave is an inherent part of the disqualification regime, and that the public is protected by the conditions of leave which will have been commented on by the Secretary of State. Each application should be taken on its merits, even where undertakings have been given (and breached) previously.

Gabriel Gatheru Rwamba v Secretary of State for Business, Energy & Industrial Strategy [2020] EWHC 2778 (Ch)

Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
Sites
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R

Visitors

Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.

Staff

Mills & Reeve system for employees.