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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

14 OCT 2009

HOBS: The Lord Chancellors and their place within or over the bankruptcy jurisdiction

Historically the office of the Lord Chancellor has played an important part in the administration of the bankruptcy jurisdiction. As keeper of the Monarch's conscience, custodian of the Great Seal and head of the Court of Chancery until the Supreme Court of Judicature Acts of the late nineteenth century, the Lord Chancellor was, inter alia, ultimately responsible for the appointment of Bankruptcy Commissioners and more importantly hearing disputes relating to insolvent estates and bankruptcy matters in the Court of Chancery. The Lord Birkenhead once quipped that he had enough problems looking after his own conscience, let alone the Monarch's (according to his successor the Lord Elwyn-Jones).

The delays in that "most pestilent of hoary sinners" as Dickens evocatively described the Court of Chancery in Bleak House, are legendary. This reputation is perhaps unjust. As a court reporter Dickens would have encountered the supposed reputation for delay that has haunted the memory of the Lord Eldon, Lord Chancellor between 1801 and 1806 and again between 1807 and 1827. Whilst it can be accepted that the Lord Eldon did take time to draft and deliver his judgments, it could be argued that this was not because of any inefficient delay. It was because he was the sole judge in his court for much of his tenure and perhaps more importantly because he was a perfectionist who wanted to get his judgments right before handing them down. His reputation has been maligned by the picture Dickens has painted of the Court of Chancery. For further discussion of this period see here (one, two and three). One of the most interesting holders of this ancient office has to Sir Francis Bacon (Lord Verulam, Viscount St' Albans) who spent some time in a Sponging house as a debtor! See here for more on this polymath and his insolvency judgments whilst presiding over the equitable jurisidiction.

The role of Lord Chancellor is, as one previous incumbent has opined, "Older than Magna Carta." We are told that, "the name 'chancellor' derives from the cancelli or lattice screens of a Roman court. The cancellarius was the court official, the usher, who sat at the screen." The recent changes to this ancient office are to some extent to be lamented in my view. Here is a list of Lord Chancellors throughout 1,000 years of history courtesy of the DCA.

The current Lord Chancellor is Mr Jack Straw MP who was appointed in 2007. He is not a peer as so many of his predecessors have been. He was a barrister for two years (1972-1974) before entering politics as an advisor to Barbara Castle. 

 

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