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Family Law

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26 FEB 2009

Saving our collective heritage - Insolvency documents as historical record

The practical application of modern insolvency laws and insolvent estate management is our daily concern. There are however other demands on our professional time. With a never-ending deluge we are immersed with, inter alia, a constant flow of new statutory amendments, new judgments, practice directions, professional guidance, consultation papers, scholarly and practical articles and so forth. It is as much as a busy practitioner can do, after a long day at the office, to reach for her copy of Corporate Rescue & Insolvency on the train journey home, thus ensuring she is up to date on the latest issues. Why then does this blog entry discuss the old law and documents pertinent to our subject? Principally because the cold hand of time is pressing and storage space is at a premium in the Royal Courts of Justice, Insolvency Service and National Archive. Important documents regarding the history of our subject may be lost if a thorough audit is not undertaken speedily.
The importance of bankruptcy records as indicators of social, as well as economic history, is an axiom and work has already been undertaken on the extant bankruptcy records in the National Archive (Marriner) and Guildhall Library (Edwards) as well as more generally (Rubin). This work is encouraging in itself, but not for the picture it presents, for there are already grave lacunas.

No records of bankruptcy proceedings appear to exist prior to 1710 at the National Archive (NA). The bankruptcy materials at the NA are contained within the B1 series, which contains 14 volumes. All other material remains in the Office of the Registrars of Bankruptcy (Giuseppi and Scargill-Bird) and the Insolvency Service, which retains contemporary material, making sporadic deposits at the NA. A full audit must be undertaken to see what other gaps exist in primary source documentation. What material for example did the World War II bomb, which landed on Carey Street, destroy? An audit will hopefully discover what is still extant and also ensure that no important documents from this point onward are lost. There is a pressure on storage space at the current locations. This storage pressure must not cause undiscriminating destruction. The picture is not entirely bleak. The recent deposit of the entire solicitor’s file for the famous Poulson case would have been lost if it had not been retained by one of the solicitors who acted in the case. Happily this set of documents now resides in the NA. The bankruptcy public examination transcripts alone are a mine of information.

The Muir Hunter Museum of Bankruptcy at the Centre for Insolvency Law and Policy, Kingston University, is engaged in a large scale cataloguing exercise of both its own collection and insolvency records held elsewhere (e.g. NA, Office of the Registrars of Bankruptcy, Insolvency Service, Official Receivers offices, local courts, local archives, private archives, etc). It is the primary source material held at these locations that is so very important. How will future practitioners learn from our contemporary experiences if they do not have a full historical record? It would be a tragedy if one of the final position papers presented to the Cork committee on “inter-planetary insolvency” was lost. In three hundred years time when a Martian liquidation is afoot how would our descendants know how the learned committee would have dealt with the issues at stake? More seriously, it is only by shedding a light on the dark recesses of our laws that we can come to appreciate how and why they have developed over time.

Without a full and rigorous historical foundation, we cannot assess our current laws in anything other than a superficial light. An historical examination is of high value as it allows us to scrutinize the development of policy, whether proactive or reactionary, and the mechanisms through which those policies were enunciated from the very foundation of our subject. Furthermore, we can examine how those policies and statutes actually affected debtors, creditors and society in general in an arc over a specified time period. It is only once an elucidation of past approaches and techniques has occurred, and a reconstruction of the aims of the legislature is undertaken, that we can learn and benefit from the experiences of our forefathers. An exposition of the law itself will be achieved, but perhaps also an elucidation of our nation’s history more generally.

If the documentary evidence to help achieve this examination is lost then we are all the poorer for it. The formation of an Insolvency Records Committee, would be welcomed as it will help to ensure that no records of use are lost to both current and future practitioners and scholars alike. The pro bono activity of the practitioner members of this committee would be commended.

The work of the committee will be exacting. There are issues around selection, including most importantly – who has the knowledge to discriminate with such a varied group of documents? Will the selectors been too subjective? Or like magpies, will they hoard vast quantities of superfluous and irrelevant material whilst condemning the gems to oblivion? Storage and retention of the material is also an important consideration. There appears to be no Practice Direction guidance regarding the destruction or retention of insolvency documents. This issue must be addressed. Perhaps the court could be given the power to make an order in each case to destroy the files after 10 years if they are not of national importance. This sort of measure is important especially in the light of the voluminous numbers now passing through the system on the personal side. A yardstick or set of standards for what should be retained must be hammered out.  This is a national issue which also encompasses the local courts with bankruptcy jurisdiction and there is of course a duality of files with both the Official Receiver’s office and Courts both retaining separate sets of files. The Muir Hunter Museum of Bankruptcy will take materials for cataloguing, archiving and storage, but questions around digitisation of the records, confidentiality, Freedom of Information Act considerations and so forth must be considered.

It is hoped that this laudable task is approached with a balance of individuals with the relevant skills and expertise to ensure that appropriate documents are selected. Practitioners themselves are obviously the most important gatekeepers to such a project. If on a day-to-day basis their work brings to the fore a novel and useful point illustrated in a tranche of documents, the task of conservation must fall on them to save it for our collective insolvency heritage, or as with Poulson, to hang on to it for

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