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You are here: BAILII >> Databases >> European Court of Human Rights >> William WILSON v United Kingdom - 36791/97 [1998] ECHR 118 (21 May 1998) URL: http://www.bailii.org/eu/cases/ECHR/1998/118.html Cite as: 26 EHRR CD195, (1998) 26 EHRR CD195, [1998] ECHR 118 |
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AS TO THE ADMISSIBILITY OF
Application No. 36791/97
by William WILSON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 July 1997 by
William WILSON against the United Kingdom and registered on 7 July 1997
under file No. 36791/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1948. Before the
Commission he is represented by Mr Abbas Mithani, solicitor, of
Messrs Lee Crowder, Birmingham. The facts of the case, as submitted by
the parties, may be summarised as follows.
A. The particular circumstances of the case
The Official Receiver made an application under Section 6 of the
Company Directors Disqualification Act 1986 for the applicant's
disqualification from being a director of a company for a period of
2 to 15 years. Judge Gibbs prefaced his judgment of 8 August 1995 with
the following remarks.
"The application was made on 10 March 1992 and the matter was
listed originally for trial as long ago as 5 July 1994. On
20 June 1994 the [applicant] applied for an adjournment on the
ground of a change of legal representation. The [applicant] had
at that stage been legally represented for some time. On
4 July 1994 His Honour Judge Micklem stood the matter out on
terms and the case was to be re-listed on the first open date
after three months. In the event the matter was re-listed over
six months later on 26 January 1995.
In the meanwhile the [applicant] had applied unsuccessfully for
the matter to be struck out, that application having been on
5 October 1994. The grounds for the [applicant's] application to
strike out were entirely spurious and the [applicant's]
application itself was struck out. On 2 January 1995 the
[applicant] again applied for an adjournment of the hearing. It
is plain that there were some difficulties over the extent of the
[applicant's] legal aid certificate and the limits upon the
authority that gave to the [applicant's] then solicitors to act
on his behalf fully. When on 26 January 1995 the matter came
before the court, that is to say, the date to which the matter
had been adjourned for trial, His Honour Judge Micklem presided
at a hearing at which the Area Manager of the Legal Aid Board
attended, and consequent upon that the limitation upon the
[applicant's] legal aid certificate was removed. And so it came
that the matter was adjourned for the second time to be heard on
3 May 1995 and the day subsequent to that.
Meanwhile there were some further interlocutory applications and
orders but as 3 May approached, evidence was submitted on the
[applicant's] behalf that he was suffering from a medical
condition which justified yet further postponement of the
proceedings. That evidence was, and remains, frankly inadequate;
it is along the lines of a certificate or letter from a general
practitioner that the [applicant] was suffering from anxiety or
an anxiety state. In the event matters did not proceed on
3 May and an order was made listing the matter eventually before
me to be heard yesterday, 7 August. Meanwhile the [applicant's]
solicitors had been doing their best to obtain proper
instructions to defend the application, or if that were not
possible due to the [applicant's] state of health, then to secure
proper and adequate evidence of the [applicant's] medical
incapacity so as to justify a still further adjournment.
Yesterday, counsel instructed on behalf of Stripes, the
[applicant's] then solicitors, had the courtesy to appear before
me and provide as much information as could be given to the court
as to the state of their efforts to represent the [applicant].
I was told, and have no reason to doubt, that they had not been
successful either in obtaining proper instructions to proceed
with their defence of this matter nor, in spite of clear advice
given to the [applicant], had they been in receipt of any
convincing evidence of the [applicant's] medical incapacity.
Under those circumstances they applied to withdraw from the case
and to come off the record and I granted that application. Thus
the [applicant] has not only not been present at this hearing,
but not been represented."
In the remainder of his 23 page judgment, Judge Gibbs summarised
the history of the relevant companies with which the applicant had been
associated. There were six companies, four of which had gone into
liquidation with amounts owing to creditors of between £6,000.00 and
£289,000.00. A fifth was dissolved after being struck off the Register
of Companies, and the sixth appeared to have been dormant. The
allegations made by the Official Receiver included trading by companies
controlled by the applicant without a trading certificate, dealing in
worthless shares, incorrect invoicing for VAT purposes and improper
trading whilst companies were insolvent, to the detriment of creditors.
In respect of one company, Judge Gibbs noted:
"I am satisfied that the [applicant] was in breach of his
fiduciary duty because he failed to ensure and, indeed, had no
means to ensure that adequate working capital was made available
to fund [the company's] development work for associated companies
and a sum in excess of £200,000.00 in terms of development costs
was never met. In addition, as I have already indicated when
dealing with another company, the [applicant] caused [this
company] to become party to improper transactions which resulted
in unjustified payments being made by Customs and Excise by way
of alleged value added tax input ... the company involved in that
transaction was M.. The [applicant] continued to enter into
commitments on the company's behalf for development work when he
knew, or ought to have known, that the creditors would never be
repaid. ..."
Judge Gibbs had "no hesitation in finding that the [applicant]
has shown himself demonstrably unfit to be concerned in the management
of a company" and, after referring to case law on the period of
disqualification, issued a disqualification order for a period of nine
years, within the bracket of "serious cases which do not merit the top
bracket".
Judge Gibbs' order of 25 August 1995 provided for the applicant's
disqualification, but did not add the qualification that the applicant
was not to act as a company director "without the leave of the court".
On 19 September 1995 the applicant lodged an application to set
aside or vary the disqualification order. On 8 December 1995 Judge
Gibbs exercised his discretion not to set aside or vary the order on
the ground that the applicant had not been present when it was made,
as there was still no adequate evidence or explanation for the
applicant's non-attendance on 8 August. He gave leave to amend the
order by introducing the missing words under the 'slip rule', which
provides for correction by the court of clerical mistakes in orders.
The judge also found that there were "no significant grounds at all and
no realistic prospect of success".
The applicant appealed. He claimed that Judge Gibbs was wrong in
law when he exercised his discretion not to set aside the order of
8 August, and that he was wrong to exercise his discretion under the
'slip rule'. On 17 July 1996, after a hearing at which the applicant
was legally aided, Mr Justice Chadwick found no error of law in Judge
Gibbs' exercises of his discretion, and noted that Judge Gibbs had
concluded that the applicant's absence on 8 August 1995 had been
deliberate. The applicant's further application for leave to appeal was
dismissed by Court of Appeal on 12 December 1996. Lord Justice Morritt
confirmed that neither of the judges below had regarded themselves as
bound by guidelines which were not applicable in the case, and added
"I was tempted to give judgment by saying only that I agreed with and
had nothing to add to the exemplary judgments given by Judge Gibbs and
by Chadwick J. I would refuse the application."
B. Relevant domestic law and practice
Section 1 of the Company Directors Disqualification Act 1986
("the 1986 Act") reads as follows:
"(1) ... a court may, and under section 6 shall, make against a
person a disqualification order, that is to say an order that he
shall not, without leave of the court
(a) be a director of a company, or
(b) be a liquidator or administrator of a company, or
(c) be a receiver or manager of a company's
property, or
(d) in any way, whether directly or indirectly, be
concerned or take part in the promotion, formation or
management of a company,
for a specified period beginning with the date of the order."
Section 6 of the 1986 reads:
"(1) The court shall make a disqualification order against a
person in any case where, on an application under this section,
it is satisfied -
(a) that he is or has been a director of a company which
has at any time become insolvent (whether while he was
a director or subsequently), and
(b) that his conduct as a director of that company (either
taken alone or taken together with his conduct as a
director of any other company or companies) makes him unfit
to be concerned in the management of a company."
COMPLAINTS
The applicant alleges a violation of Article 6 para. 1 of the
Convention. He claims that the proceedings should properly be
classified as determining a 'criminal charge' because of the wide-
ranging effects of a disqualification order, which makes a disqualified
person virtually unemployable in the corporate sector. He sees a
violation of Article 6 in the fact that the judge refused to adjourn
the proceedings on 8 August 1995 with the effect that the applicant was
unable to defend himself. The applicant also complains that the
disqualification order made - nine years - was unjustifiably long.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) that
the proceedings against him were more of a criminal than civil nature
and that the conducting of the hearing in his absence did not provide
him with an opportunity to present his case adequately.
Article 6 para. 1 (Art. 6-1) of the Convention provides, in so
far as relevant, as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law..."
The Commission recalls that in the case of EDC v. the United
Kingdom it found that disqualification proceedings under Section 6 of
the Company Directors Disqualification Act 1986 determined "civil
rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention (No. 24433/94, Comm. Report 26.2.97, para. 47).
The criteria for ascertaining whether a "criminal charge" has
been determined are the domestic classification of the "offence", the
nature of the "offence", and the nature and degree of severity of the
potential and actual penalty (see, for example, Eur. Court HR,
Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328,
p. 13, para. 27 with further references). In the present case, the
proceedings were classified as civil in domestic law, the
disqualification of directors is a matter which is regulatory rather
than criminal, and the penalty is neither a fine nor a prison sentence,
but rather a prohibition on acting as a company director without the
leave of the court. None of these criteria indicates that the
applicant was charged with a "criminal offence", and the Commission
considers that the proceedings in the present case did not determine
a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention.
The proceedings against the applicant therefore determined "civil
rights and obligations", but did not determine a "criminal charge".
The Commission recalls that the question whether court
proceedings satisfy the requirements of Article 6 para. 1 (Art. 6-1)
of the Convention must be considered on the basis of the particular
circumstances of each case. The Commission has already considered that
although the right to appear in a civil case is not, as such,
guaranteed by the Convention, it may, in particular circumstances, be
implied in the right to a fair hearing (see Muyldermans v. Belgium,
Comm. Report 2.10.90, Eur. Court HR, Series A no. 214-A, p. 17 with
further references).
In the present case, the domestic authorities went to
considerable lengths in attempting to enable the applicant's attendance
at the hearing of the case: the applicant's request for adjournment of
20 June 1994 was granted, on 26 January 1995 the case was adjourned
again when the limitation on the applicant's legal aid certificate was
removed, and on 3 May 1995, when the trial was due to begin, the case
was again adjourned as evidence had been submitted that the applicant
was suffering from a medical condition. On 6 August 1995, the
applicant's representatives withdrew as they had not been able to
obtain proper instructions and had not received convincing evidence of
the applicant's medical incapacity. It was in these circumstances that
the judge decided to proceed in the absence of the applicant or any
representatives.
Throughout the proceedings subsequent to the hearing on
7 August 1995, no evidence was ever produced which provided any
justification for the applicant's failure to attend that hearing, and
none has been produced to the Commission.
The Commission considers that the applicant must be held wholly
responsible for his absence on 7 August 1995, and that the judge was
justified in continuing in the applicant's absence.
The Commission accepts, however, that there could be
circumstances in which a refusal to re-hear a case which was tried in
the absence of one party may not be compatible with the "fairness"
requirements of Article 6 para. 1 (Art. 6-1) of the Convention (in the
criminal context see, for example, No. 10291/83, Dec. 12.5.86, D.R. 47,
p. 70 with further references, in which the Commission made express
reference to the possibility of applying, as of right, for a re-trial).
In the present case, it was open to the applicant to challenge, as he
did, the decision of 7 August 1995: he challenged it by way of
application to set aside, and also by way of subsequent appeal to the
High Court and ultimately in his application for leave to appeal to the
Court of Appeal. Whilst the applicant was not, it is true, entitled
to a re-trial, the Commission considers that in the context of civil
proceedings, to which Article 6 para. 3 (Art. 6-3) of the Convention
does not apply, it is permissible for superior levels of jurisdiction
to consider the merits of the case and to decline to re-open where
there is no indication that the judge was wrong to hear the case in the
absence of a party, and where there is no substantial argument on the
merits.
As to the remainder of the applicant's complaints, in particular
that the disqualification order was imposed for too long a period, the
Commission recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3,
pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43,
pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31,
45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74,
p. 234). The applicant's allegation that the disqualification in the
present case was unreasonably long does not give rise to any issues
under Article 6 (Art. 6) of the Convention.
It follows that the application must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber