Feedback to SSRN (Beta)
What type of feedback would you like to send?
Abstract: Drawing on the Old Bailey Session Papers (OBSP), this article examines the cases of six individuals who were tried and executed for 'bankruptcy offences' pursuant to An Act to Prevent Frauds Frequently Committed by Bankrupts 1705.
insolvency, debtor, creditor, disclosure, hanging, punishment, bankruptcy offences, 1705 Act to Prevent Frauds Frequently Committed by Bankrupts
Abstract: Much in the same way that Professor Sir John Baker QC publishes 'Migrations of Legal Manuscripts' in the Journal of Legal History, to notify the readership of that learned journal regarding the details of manuscripts, we thought that it might be of some use to the profession and insolvency scholarship generally if we published within the pages of this journal a copy of our working insolvency history bibliography. Our objective in publishing this bibliography is to shed light on hitherto neglected sources and citations that might provide fertile ground for others researching into the history of our subject.
Needless to say this bibliography is constantly in a state of flux and when we have amassed further relevant sources we will publish a new bibliography for the benefit of the profession. If we have missed anything of significance we would be grateful for any information that might improve the completeness of the work. A further objective in compiling this bibliography has been to aid the acquisition of all relevant material relating to the history of our subject at the Centre for Insolvency Law and Policy's (CILP) research library. This collection has recently been bolstered by PriceWaterhouseCoopers LLP who have generously donated a substantial library of materials, including a large number of 19th century practitioners' texts in various editions, as well as nominate law reports. This corpus of materials was in a former guise Professor Graham's working library at the bar.
Within this bibliography we have attempted to include citations relating to insolvency law and related subjects covering: legislation, bills, petitions, readings in the Inns of Court, practitioners texts, and pamphlets. We have not included case law citations, merely reference to the relevant nominate reports wherein the case law itself can be found. We have also included citations to materials that help fill in the background to the relevant period in terms of commercial trade and practice.
In due course an article will be published in he pages of this journal that links practitioners' texts from the 16th century right through to the present edition of Williams & Muir Hunter on Bankruptcy. It is possible to trace the influence of preceding texts and authors on their descendants to such an extent that a continuous line can be drawn through 400 years of insolvency writing. The biographical and substantive contribution of each author will be discussed. In the interim, Professor Graham's entry on Stone can shortly be seen in the new Oxford Dictionary of National Biography online edition.
bankruptcy, insolvency, usury, debtor, creditor, inns of court, readings, orders in chancery, debt
Abstract: The Enterprise Act 2002 has attempted to fundamentally change approaches to corporate insolvency regulation in the United Kingdom. By endeavouring to improve the administration procedure first introduced by the Insolvency Act 1986 (IA 86), the Legislature has given paramount consideration to corporate rescue outcomes through the administration procedure, as originally envisaged by the Cork Committee in its seminal report of 1982. In this article it will be argued that the company voluntary arrangement (CVA) regime will be a fundamental ingredient in the post 2004 rescue culture brew. It will be argued that CVA usage will become much more prevalent as part of administration practice, and preferably as a stand-alone consensual procedure pursuant to Part I of the IA 86. Whilst administration can be considered as a means to an end, that end can only be achieved through the use of appropriate restructuring processes. The CVA is one of those processes. In this article, the development of the CVA regime, its purpose, procedure, outcomes, and usage is critically examined. It is argued that in prioritising Administration and the rescue ethos, the Legislature has returned to a fundamental concept of English insolvency law, namely equality of treatment amongst creditors. In placing an officeholder in charge of the key process who must consider the interests of all creditors (the Administrator), the legislation takes English insolvency law full circle back to the Henrician statute that introduced collectivisation and the notion of pari passu distribution. It is the principle and policy behind the latter of these two concepts, equality of treatment, that has re-emerged in the new regime, not the principle of distribution itself. This utilitarian approach to English insolvency law's treatment of creditors returns us to a Tudor orthodoxy. If this "all creditor" benefit outcome is adopted by all stakeholders then future practice will see the emergence of stand-alone, fully consensual, Part I (i.e. no moratorium) CVAs (hereafter referred to as consensual CVAs).
company voluntary arrangements, cva, consensus, insolvency act, schemes of arrangement, rescue, restructure, cork, bankruptcy, company, reorganisation
Abstract: Book review of Professor Finch's text on corporate insolvency and corporate rescue.
vanessa finch, corporate insolvency, first edition, book review
Abstract: Whether Romalpa clauses in sale of goods contracts invoked to obtain priority on insolvency are ethical, common types of clause, possibility of registration as charge, comparison with other countries and suggested improvements to usage.
romalpa, clause, retention of title, sales contract, debtor, creditor, insolvency
Abstract: In Mr Alistair Darling MP’s budget statement on the 22nd April 2009 he announced that the Company Voluntary Arrangement (CVA) procedure is going to be reformed (or at least the subject of a consultation process) so as to extend the small company moratorium provisions to medium and large companies. A moratorium, it is mooted, would therefore be available outside the administration procedure for medium and large sized companies that are in financial distress. This article examines the possible genesis of these reform proposals. The author contends that they can be viewed as a response to the Conservative Party’s reform proposals of July 2008.
insolvency, corporate rescue, company voluntary arrangements, reform, chapter 11 bankruptcy, conservative party
Abstract: It is an axiom of English corporate insolvency law that rescue of the company is the paramount consideration for insolvency practitioners and directors. This approach is evidenced by the legislative reforms introduced by the Enterprise Act 2002 in the realm of administration and more recently by Mr Alistair Darling MP’s announcement that Company Voluntary Arrangements (CVAs) with moratoriums are to be reformed following a consultation that will start in June 2009. Recent reform activity in the area of company law has also affected restructuring practice. Section 895 of the Companies Act 2006 replaces the scheme of arrangement provisions in s.425 Companies Act 1985. There have been a number of calls for reform of the scheme of arrangement provisions so as to make them more useful for facilitating company rescue. In this article these reforms, and some supposed missed opportunities, are critically examined.
schemes of arrangement, chapter 11, restructuring, company, insolvency, bankruptcy, debtor, creditor
Abstract: In a recent article I highlighted the background, growth and possible use of Company Voluntary Arrangements (CVAs) in the corporate restructuring sphere. In particular I argued that consensual Part 1 Insolvency Act 1986 CVAs, i.e. CVAs without moratoriums and used outside administration, could provide a low cost effective restructuring tool. In this essay I argue in the alternative that the small CVA provisions as introduced by the Insolvency Act 2000 and now represented in Schedule A1 of the Insolvency Act 1986 could be extended to large companies (i.e. those outside s.247 Companies Act 1985 or s.382 Companies Act 2006) so as to allow large company restructuring with the benefit of a moratorium without the costs associated with an accompanying Administration Order being in place. In so doing I go someway to respond to the Conservative Party's recent call for the adoption of Chapter 11 type automatic stays into English law. It is argued that instead of adopting a new form of business restructuring tool as advocated by the Conservative Party, which is largely reminiscent of the Irish Examinership model, we should instead extend the small CVA provisions (Schedule A1 Insolvency Act 1986) to larger companies therefore reducing associated reform costs as well as benefiting from a reduction in associated Administration Order costs.
company voluntary arrangements, insolvency, cva, restructuring, debt, debtor, creditor, reorganisation, schemes of arrangement, conservative party, law reform proposals, alternative
Abstract: In 1814 Basil Montagu, by now an extremely busy member of the Chancery bar took up residence at 25 Bedford Square in fashionable Bloomsbury. Together with his wife, large family and servants he continued to live at this address for the next 20 years or so. On Sundays Mrs Montagu often reigned over a salon that attracted prominent literary figures amongst whom were several long-standing friends of her husband. At the time of their marriage in 1808 Montagu had already been married twice before; his wife had been a widow for about six years and was bringing up her daughter who would one day as Mrs Proctor have her own salon frequented by a new generation of poets and authors. Montagu's chambers were at 10 New Square; his practice was mainly concerned with insolvency matters, serving as a Commissioner in Bankruptcy at the Guildhall. He was a prolific writer on commercial law but is best remembered, if at all, for his many books on bankruptcy and for a lengthy series of law reports. He also wrote numerous pamphlets on contemporary topics such as Catholic and Jewish emancipation. Additionally he published a book of essays one of which dealt with the general principles of law reform and a best selling philosophical anthology. If Bedford Square reflects Montagu's commitment to literature, then New Square represents his professional dedication; sometimes these two segments of his life came together; he acted as junior counsel for Shelley in the proceedings brought by the poet after his wife's death to obtain custody of their children; on at least one occasion Coleridge arrived at chambers to discuss Montagu's Francis Bacon project; urgent steps were taken by him and Bryan Waller Proctor, his step-son in law, to rescue Hazlitt from imprisonment for debt. In this article little attention is given to Montagu's legal career, his role as founder of the Legal & General Insurance Company, or to his work after 1836 as the first Accountant-General in Bankruptcy. Instead it concentrates on his literary activities and private life so often clouded by tragedy. It is suggested that when Montagu died at Boulogne in 1851 he was living there in exile fearful of arrest for debt at home resulting from involvement with the financial disaster of his principal publisher, William Pickering. His death does not end the story that must continue with the hunt, still in progress, for his voluminous papers, manuscripts and other documents together with reminiscences about him. Our research indicates that notwithstanding a belief that much of this material is lost this is by no means the case.
legal history, basil montagu, bankruptcy, william wordsworth, samuel taylor coleridge, francis bacon, insolvency, debtors prisons
Abstract: This, the first part of a two part article, reviews the development of UK case law relating to office holders' remuneration following corporate insolvency and considers the impact of professional guidance, such as the 1998 Ferris Report on the Remuneration of Office Holders and Certain Related Matters. Outlines: (1) the position of provisional and voluntary liquidators under the Insolvency Rules 1986, including the Chancery Division decision in Re Independent Insurance Co Ltd (In Provisional Liquidation) and the situation of the official receiver; (2) the position of administrators under the Insolvency Act 1986; and (3) the position of administrative receivers, including the Chancery Division Decision in Mirror Group Newspapers Plc v Maxwell (No. 2) and the impact of the Enterprise Act 2002. Examines the Ferris Report's recommendations concerning the criteria for establishing remuneration levels, the Statement of Insolvency Practice 9 (SIP 9) guide, the Insolvency Service's Dear IP letter and the measures for improvement formulated by Mr Justice Lightman in a 1998 address to the Insolvency Lawyers Association.
insolvency, debtor, creditor, remuneration, ferris report, enterprise act 2002, re independent insurance, administrative receiver
Abstract: Summarises insolvency cases heard before Sir Francis Bacon in the Court of Chancery between 1617 and 1621. Presents a biography of Francis Bacon. Considers the background to insolvency relief and the factors that partly influenced judicial thinking behind the cases.
francis bacon, lord verulam, viscount st albans, lord chancellor, lord keeper, composition, seventeenth century, insolvency, debtor, creditor
Abstract: Whether charge over company's uncollected book debts took effect as fixed or floating charge where company was free to collect proceeds and use them in course of its business.
insolvency, debtor, creditor, book debts, charge, fixed, floating,
Abstract: This is the second of two articles. In the first part, an Insolvency Service and Grant Thornton LLP-funded research project was discussed.1 In this second article a more specific response will be provided to Professor Jacob Ziegel's 2003 Oxford Society of Legal Scholars paper, which postulated that English insolvency academics have for too long neglected the serious study of the personal side of insolvency.
insolvency, personal, bankruptcy, SLS, society of legal scholars, professor jacob ziegel, funded research
Abstract: This is the first of two articles. In this first article, the current Insolvency Service and Grant Thornton LLP-funded research project, which is being undertaken at the Centre for Insolvency Law & Policy (CILP) at Kingston University, will be discussed. In the second article a more specific response will be provided to Professor Jacob Ziegel's 2003 Oxford Society of Legal Scholars conference paper, which postulated that English insolvency academics have for too long neglected the serious study of the personal side of insolvency.
professor ziegel, insolvency, bankruptcy, funded research, society of legal scholars, debtor, creditor
Abstract: Discusses bankruptcy legislation in England and Wales prior to 1825. Considers criticisms made of bankruptcy laws by the Lord Chancellor, Lord Eldon in 1801 and the Solicitor General, Sir Samuel Romilly in 1806. Notes the increase in the work of the bankruptcy courts in the first quarter of the nineteenth century. Examines criticisms of the drafting of the Bankruptcy Act 1825.
insolvency, england and wales, bankruptcy reform, lord eldon, Bankruptcy act 1825, sir samuel romilly
Abstract: This Personal Insolvency Project (PIP) research report is divided into three parts and two volumes. The three substantive parts are set out in Volume I and relate to the research areas of: (1) debtor advice, (2) debtor education, and, (3) the credit environment. Volume II contains all of the appendices pertinent to the three sections and the bibliography.
The three areas that are examined in this report first came to the fore as points for consideration following the publication of the BCS. It was concluded following that report that a further investigation into areas impacting on personal insolvency should be investigated. This report is a further investigatory exercise. In essence, the major participants in the personal insolvency arena and the causes of the recent upsurge in personal insolvency usage were to be investigated, thus hopefully resolving the extremely important question of: what or who is responsible for the recent upsurge in insolvency procedure usage? This question, inter alia, has been addressed within this report.
The three report sections include, inter alia, an examination of the advice function and general practices of debt solution companies (Part I), and an examination of the attitudes, procedures and approach of major credit providers to the law of insolvency (Part III). A resounding theme from the BCS was the lack of financial literacy amongst the respondents. As there has hitherto been a lacuna in English insolvency scholarship regarding debtor education it was decided that this should be addressed (Part II). There are obvious synergies between the three parts of the report. These are discussed in the main body and conclusions.
VOLUME ONE ONLY!!
insolvency, debtor, creditor, personal insolvency, banks, lending, debtor education
Abstract: Twenty-one years ago the Cork Committee stated that any good modern insolvency law should be able to provide means for the preservation of viable commercial enterprises capable of making a useful contribution to the economic life of the country. This was perhaps one of the first articulations of the rescue culture ethos which now pervades our insolvency system. The bias towards rescue provisions continues apace and two new texts have recently been published that add to the growing literature, highlighting the movement away from formal liquidation procedures. From LexisNexis UK we have Edward Bailey's Voluntary Arrangements ; and from Jordan Publishing, Michael M. Weisgard's first book, Company Voluntary Arrangements. These texts will now be considered and contrasted.
company voluntary arrangements, cva, restructuring, debtor, creditor, insolvency
personal insolvency, bankruptcy, debtor, credit, creditors, debtors, individual voluntary arrangement, IVA, credit environment, banks, debt advice, debtor education
Abstract: In this two-part article series the authors intend to explore the practical use by private limited companies of the members' voluntary liquidation ("MVL") procedure as contained in the Insolvency Act 1986 ("IA 86").1 The procedure, although subject to legislation contained within the IA 86, relates to solvent companies and is generally used to bring a company to a formal end and to distribute its surplus assets.2 This first article will explore the MVL procedure3 and its use in practice, with some practical case study examples. The second article will compare the MVL procedure, particularly the scheme of reconstruction provisions contained in s.110 IA 86,4 with the scheme of arrangement provisions contained in ss.425-427A Companies Act 1985 ("CA 85"), and the striking-off provisions contained in s.652A CA 85. The central thesis through both articles is that MVLs are an inexpensive procedure which could be used more frequently and effectively to reconstruct a group of companies or to convert a single company into a more profitable entity.
insolvency, members voluntary liquidation, restructuring, creditor, debtor, solvent reorganisation
Abstract: This is the second part of a two-part article series.1 In Pt I the authors considered the practical use of the members' voluntary liquidation ("MVL") procedure as contained in the Insolvency Act 1986 ("IA 86"). This second article will compare the MVL procedure, particularly the scheme of reconstruction provisions contained in s.110 IA 86,2 with the scheme of arrangement provisions contained in ss.425-427A Companies Act 1985 ("CA 85"), and the striking-off provisions contained in s.652A CA 85. The central thesis is that the MVL procedure is an inexpensive underused tool that could be used more frequently and effectively to reconstruct a group of companies or a single company into a more profitable entity in circumstances when a rationalisation is sought. In this article the authors will test this thesis against the competing regimes extant in the CA 85 and discuss the relevant Company Law Review ("CLR") proposals that impact on this area.
insolvency, restructuring, companies, members voluntary liquidation, solvent reorganisation, debtor, creditor
Abstract: This, the second in a series of articles on bankruptcy law and practice in the Regency era, focuses on the Bankruptcy Court. Charts the careers of Francis Vesey and George Rose, two of the chief reporters of the period. Summarises the periods in office of Lords Loughborough, Erskine and Eldon, three of the Lord Chancellors of the era.
insolvency, regency england, debtors, creditors, judges, bankruptcy court, law reporters
Abstract: IVA regime including procedure, debtor's proposal, interim order, nominee's report and creditors' meeting, rules on extensions of time, distinction between IVA and CVA rules on time and whether IVA provisions give rise to uncertainty.
individual voluntary arrangements, iva, debtor, creditor, insolvency, time extension, nominee, report
Abstract: Do trusts made under a company voluntary arrangement (CVA) that are held by the supervisor survive the termination of the CVA when the company is taken into liquidation? This was the question addressed by the Court of Appeal in the recent decision of Re NT Gallagher & Sons Ltd. 1 There are a number of contradictory High Court decisions on the question and this decision sought to clarify the area. This article will discuss the CVA provisions, before going on specifically to discuss the effect of the case.
insolvency, debtor, creditor, insolvency, company voluntary arrangement, CVA, composition, trusts
Abstract: The first two articles in our Bankruptcy in Crisis - A Regency Saga series1 outlined some of the major bankruptcy issues that arose during the early 19th century. We also met the principal law reporters of bankruptcy cases and the three Lord Chancellors whose judgments fill their pages. It is now time to turn our attention to the Vice-Chancellors, along with a few of the barristers who habitually appeared in front of them.
insolvency, legal history, debtors, creditors, lord chancellors, judges, regency england
Abstract: Whether, where car was stolen while left on garage forecourt whilst owner paid for petrol, with key in ignition but with immobiliser fitted, insurance company was liable to indemnify driver for theft and whether driver was reckless.
insurance, porsche, keys, reckless
Abstract: Scope of DTI proposals for insolvency law reform, including restriction of appointment of administrative receivers, review of administration in order to benefit unsecured creditors and abolition of Crown preference.
insolvency, debtor, creditor, reform, administrative receivership, companies
Abstract: Comments on the Department of Constitutional Affairs' publication of the consultation paper, A Choice of Paths: Better Options to Manage Over-Indebtedness and Multiple Debt. Assesses the proposals to reform the law relating to individual debt, including the introduction of a debt relief scheme and an enforcement restriction order, and reform of the scheme for administration orders. Considers whether the introduction of obligatory debt counselling could provide an answer to the growing problem of over-indebtedness relief and the possible role and benefits of a Debtor Advice Bureau funded by the credit industry to operate obligatory counselling.
department for constitutional affairs, debt, debtor, creditor, reform, law, debt counselling, debtor advice
Abstract: BANKRUPTCY COURTS SURVEY 2005: In March 2005 the Centre for Insolvency Law and Policy (CILP), Kingston Law School, Kingston University, received BPS 26,600 research funding to undertake two pilot studies. The funding was provided by the Insolvency Service, an executive agency of the Department of Trade and Industry. The first project, which was originally due to report in November 2005, is entitled the Bankruptcy Courts Survey 2005 (BCS 2005). It now reports in January 2006, to take into account the continued flow of questionnaire responses coming in to CILP. The project as proposed originally consisted of a pilot study questionnaire of three bankruptcy courts in England and Wales (Birmingham, Croydon, and Reading). This number was however expanded during the course of the research to include three further courts (Cardiff, Exeter, and Newcastle). This expansion was deemed necessary so as to gain a greater number of responses to the questionnaire thus giving greater statistical validity to the results. The BCS 2005 project received BPS 12,000 of the research funding. Project Two, which will report in March 2006, received the remaining BPS 14,600. This project is an examination of the concept of phoenixism in insolvency and is being conducted by Fiona Tolmie, director of CILP.
REPORT SUMMARY: The Main Conclusions of the Bankruptcy Court Survey 2005 (BCS 2005) are: Debtor associated: * The main cause of bankruptcy is bankrupt acknowledged credit misuse, followed by business failure. * Males are the majority users of the bankruptcy regime. * There is no definitive age range for the typical bankrupt. * Debtors present the majority of bankruptcy petitions. * The vast majority of bankrupts are not homeowners prior to bankruptcy. * Bankruptcy does not affect employment. * Knowledge of the Enterprise Act 2002 provisions and their effects is low amongst bankrupts. * The majority of bankrupts feel morally at fault for their debt problems. * A large majority of bankrupts did not know what level of indebtedness they were being released from. Creditor associated: * Bankrupts experience immense difficulties in obtaining bank accounts post discharge, which inhibits them from rehabilitation into the credit world. * The non-monetary effects of bankruptcy are voluminous, but primarily feature dissatisfaction with lenders. Procedure associated: * Informal voluntary arrangements and individual voluntary arrangements are close second choice solutions for over-indebted individuals. * Alternative routes to bankruptcy are explored prior to the bankruptcy route being pursued. * Word of mouth and voluntary sector advice are the main information conduits for personal insolvency advice. * Bankruptcy as an experience is overwhelmingly perceived as negative and stigmatising by bankrupts. * Bankrupts sum up the bankruptcy process as being ultimately an efficient system. * The one year maximum period before automatic discharge is deemed sufficient by bankrupts. Profession/Advice associated: * Communication and advice from Trustees in Bankruptcy is good according to bankrupts. * Communication and advice from the Official Receiver is overwhelmingly good according to bankrupts. * Bankruptcy jurisdiction within the County Courts is efficient and the supporting infrastructure is well maintained. * On the whole lawyers are not involved in the bankruptcy process in terms of advice; the Citizens Advice Bureau is the main provider of personal insolvency advice. Pilot Study Preliminary Recommendations The main recommendations of the BCS 2005 are: * Consider the division of bankruptcy into a two-tier system differentiating between entrepreneurially derived debt and consumer derived debt, perhaps under the headings of business bankruptcy and personal bankruptcy. * Formulate and enact a system of debtor and creditor education. * In light of the recent dramatic growth in consumer debt levels reappraise the conduct of consumer debtors, but in particular lending institutions, focusing on the creditor's responsibility and conduct regarding the consumer debtor's personal over-indebtedness. * Whilst considering the division of the bankruptcy procedure between business bankruptcy and personal bankruptcy also consider eradicating the term 'bankruptcy' for non-culpable consumer debt cases. * It is further recommended that the BCS 2005 pilot study be expanded from its 6 court sample to a full study that encompasses 30 of the 136 bankruptcy courts in England and Wales to give a better impression of the treatment and experience of the bankruptcy court user.
insolvency, debtor, creditor, funded research, insolvency service
Abstract: The volume of primary source material touching seventeenth century insolvency law and practice and adjunct commercial areas is not insubstantial. The material also includes bankruptcy documents. There are also documents extant on the education of practitioners in relation to the law of bankruptcy in the Inns of Court. As the practice of insolvency law is incontrovertibly linked to the attendant areas of trade, credit, and debt it is interesting to mull on the preparation that intending practitioners went through before practice and whilst in practice. In this regard we may consider the training of sergeants, barristers, attorneys, solicitors and so forth. The seventeenth century saw a particular burst of activity in this legal educational discourse. Handwritten, generally by students, the Readings provide an intriguing insight into the practical application of seventeenth century insolvency laws and allow a glimpse into the education of seventeenth century practitioners and their professional development in the field of insolvency law. The nineteen readings discussed in this article were delivered in Gray's Inn, Inner Temple, Lincoln's Inn and Middle Temple between 1601 and 1695. John Barkesdale's reading of 1628 is transcribed and critically analysed.
readings, inns of court, bankruptcy, insolvency, debtor, creditor, education, barrister, reader
Abstract: In the late 1970s and early 1980s, Dr Sheila Marriner of the University of Liverpool produced two groundbreaking articles on English bankruptcy records held at the National Archive in Kew, England. This article provides a critical reassessment of her work and examines the bankruptcy records in the National Archive and elsewhere, including the London Guildhall Library, Royal Courts of Justice, Insolvency Service and local county archives. It is the author's contention that the vast majority of official bankruptcy records prior to 1710 have been lost, but that a plethora of other primary source material exists, particularly in the local archives. This material will enable bankruptcy scholars to reconstruct early modern bankruptcy law and practice. From such diverse sources as the Shakespeare Birthplace Trust Records Office and Dulwich School, to the more conventional collections in the Inns of Court and various Universities, scholars can find contemporary early modern evidence of insolvent estate management, distribution and eventually discharge. Bankruptcy records and primary source material relating to the 18th and 19th centuries is also critically examined.
bankruptcy, early modern, insolvency, debtor, creditor, records, national archive, local archives, university libraries, inns of court, london guildhall,
Abstract: This article is divided into two parts. Part A provides an in depth exposition of six areas which the author contends provide the legal foundation to the first bankruptcy statute of 1543 (An Act Against Such Persons As Do Make Bankrupts 1543 (34 & 35 Hen VIII, c.4)). There are at least six jurisdictions that evidence insolvent estate management both on a statutory and a non-statutory basis leading up to the early modern period. These include the ecclesiastical courts in England and their use of sanctuary and distribution methods of insolvent intestate estates; the law merchant and its impact on English commercial practice throughout the medieval period; the London Guilds and their mechanisms for dealing with distribution; the Legislature and its thirteenth and fourteenth century promulgation of debt, fraudulent conveyance and usury statutes; judicial and Privy Council composition schemes; and finally, the imprisonment for debt jurisdiction. These areas are treated distinctly and in detail in part A, however, the respective jurisdictions that are examined existed contemporaneously in some instances. This parallel growth and the inter-relationships between the different modes of treatment is examined in Part B, which draws on these foundations bringing them together to show that through an incremental development of insolvent estate management, principles and methods of debtor treatment had been in existence in England for over 700 years leading up to the first bankruptcy statute in 1543.
imprisonment for debt, sanctuary, debtors, creditors, debt, credit, insolvency, fraudulent conveyance, law merchant, guilds, distribution, collectivistion,
Abstract: In March 2005 the Centre for Insolvency Law and Policy (CILP) together with the Small Business Research Centre (SBRC), Kingston University received 26,600 BPS research funding to undertake two pilot studies. The funding was provided by the Insolvency Service, an executive agency of the Department of Trade and Industry. The first project, which was originally due to report in November 2005, is entitled 'Bankruptcy Courts Survey 2005' and reported in January 2006 to take into account the continued flow of questionnaire responses coming in to CILP. The second project, entitled 'Phoenix Companies: Do directors learn from failure?' was due to report in two stages to reflect the dual nature of the research. An interim report on Stage One was presented to the Insolvency Service in November 2005. Stage Two was due for presentation in March 2006 and an Interim Report was presented in the subsequent July. Due to a disappointingly low response rate to the quantitative stage of research, the final report was postponed to allow further response collection. As a result of additional delays owing the retirement of Ms. Fiona Tolmie from insolvency scholarship, the research now reports in September 2007. The project, as originally proposed consists of two elements: (1) secondary analysis of data collected in 2001 by the SBRC relating to the experiences of directors of limited liability companies; and (2) the piloting of a further project involving directors of failed limited liability companies in order to investigate their learning experiences and attitudes to limited liability.
insolvency, debtor, creditor, directors, companies, company, debt, education, experience, empirical research, funded research, insolvency service
Abstract: In this article the author explores the rhetoric and reception of terms of art used in insolvency law over the past 500 years. By examining the contemporary and evolving use of terminology in insolvency law, in particular by examining the use of the term bankruptcy, the author highlights a long history of negative use and perception that continues to percolate through into modern insolvency practice. In particular the author focuses on the seepage of negative terminology from the position of factual insolvency across into the system of legal rules designed to deal with that insolvent estate, namely the law of insolvency.
insolvency, debtor, creditor, terms of art, rhetoric, imprisonment, punishment,
Abstract: The purpose of this essay is to critically examine personal bankruptcy discharge in an historical and international comparative context. Formal discharge from the legal state of personal bankruptcy is being examined. As will be seen below, this is of course sometimes different to discharge from personal liability for debts as discharge from personal liability for debt can be obtained through mechanisms other than bankruptcy. These procedures fall without the parameters of this essay. It is then the formal procedures for discharge within bankruptcy law that are being considered in this essay. Recent changes in England and Wales to bankruptcy law discharge provisions have highlighted two schools of thought regarding the effects of those changes on debtor behaviour. These recent English legislative changes have, inter alia, reduced the period before automatic discharge from bankruptcy from three years to a maximum of one year.
In relation to formal discharge from bankruptcy there are, it could be argued, two schools of thought as to the length of the bankruptcy period before discharge occurs. The first school of thought promulgates that less onerous discharge provisions will and have encouraged irresponsible borrowing activities by debtors, thus causing a rise in the number of people seeking redress to the bankruptcy system. The second school of thought advocates the idea that the changes have not caused additional redress to the bankruptcy procedure themselves, but that the changes in the legislation have been accompanied by an increase in consumer credit availability generally and that this will lead to a natural increase in debt related failure.
This essay will seek to examine these competing contentions through an examination of discharge regimes in the major common law countries, namely: England and Wales, Scotland, America (including various states differing provisions), Canada, and Australia. It is broad truism to state that many civil law jurisdictions do not recognise the procedure of bankruptcy for consumer debtors and the normally attendant provisions for discharge from debt. It is not within the scope of this essay to consider the alternative procedures that these countries have in place of bankruptcy, that is perhaps for another place. This essay will demonstrate that behind the various jurisdictions' discharge provisions lies a legislative desire to ensure that an appropriate procedure is extant that is designed to facilitate the rehabilitation of the debtor by providing for a clean, refreshed financial re-start for the bankrupt. This re-start will usually occur in an unfettered manner in terms of future financial encumbrances unless the debtor has exhibited miscreant behaviour.
This philosophical approach to bankruptcy design is perhaps best known (using American insolvency parlance) as a 'fresh start' mechanism. The various jurisdictions under discussion have different discharge provisions. It is these differences and in particular the policy reasons for these divergent approaches that is being examined. It could be posited that discharge is directly related to the idea of rehabilitation and a fresh start for the debtor. The earlier the discharge, the sooner the individual is rehabilitated into the credit community. In this essay we will see how different jurisdictions approach this fundamental quality of a personal bankruptcy law.
In particular this essay will focus on the thesis that less onerous discharge provisions encourage more responsible lending practices. This is due to enhanced creditor prudence brought about by the notion that if a debtor can escape their liabilities with ease, a creditor will not encumber them with such onerous liabilities. The creditor will have the knowledge, and perhaps disincentive, that the debtor could escape liability for the debt easily. The creditor will therefore lend more cautiously to minimise the risk of loss.
insolvency, debtor, creditor, discharge, comparative approaches, relief, rehabilitation, recovery
Abstract: Cases on who can bring proceedings on behalf of company, whether receiver can sue appointer, scope of s.35 of 1986 Act, who can fight counterclaims and directors' indemnification.
insolvency, debtor, creditor, directors, receiver, counterclaim
Abstract: The law of insolvency can trace its early modern beginnings to the equitable jurisdiction of the Court of Chancery. It is therefore unsurprising to note that throughout the development of the subject of insolvency numerous questions surrounding the law of trusts have percolated through for consideration by jurists and the judiciary, the Farepak case being a recent example. Perhaps the most important impact the law of trusts has on the law of insolvency relates to the effect of trusts on the make up of the insolvent estate, i.e. defining what is property for the purpose of collection and subsequent distribution, and perhaps more importantly for lenders, defining what falls outside the insolvent estate. In this article it will be argued that the importance of the trust instrument again needs to be addressed in the context of this property identification because of the Enterprise Act 2002 provisions relating to administration and the abolition of receivership. Alternative methods must be examined which will facilitate, or continue lending practice in light of the diminution in charge security interests and, inter alia, the risk protection such security affords. It will be argued that there will be an increase in the use of trusts because of the reduction in charges as security following the Enterprise Act 2002. Other non-insolvency avenues will and must be explored to protect lender interests.
equity and trusts, insolvency, security, creditor protection, resulting trusts
Abstract: A review of Professor Muir Hunter QC's lay person text on personal insolvency law.
debt advice, insolvency, debtor, creditor, debt, credit, bankruptcy, personal insolvency, IVA, composition
Abstract: A review of Professor Milman's Ashgate text on the law of personal insolvency.
insolvency, bankruptcy, iva, debtor, creditor, credit, debt, regulation, markets and law
© 2009 Social Science Electronic Publishing, Inc. All Rights Reserved. Terms of Use Privacy Policy This page was served by apollo2 in 0.281 seconds.
