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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

01 JUL 2011

Judicial Contributions to Insolvency Law: Lord Rodger of Earlsferry and Chancery promotions to the Court of Appeal

The recent sad news that the Lord Rodger of Earlsferry FBA PC (1944-2011) has passed away has been picked up by the broadsheets and some other commentators. The Edinburgh University Law School Centre for commercial law blog provides an excellent summary of the academic work of the late Supreme Court Justice. I thought it might be appropriate to examine his contribution to the insolvency jurisdiction in this blog entry. Before we do that it should be noted that a number of promotions to the Court of Appeal have been announced following the retirement of five members of the Appeal Court. 


The Queen has been pleased to approve the appointment of The Honourable Dame Anne Rafferty, with effect from 5 July 2011, The Honourable Sir Andrew McFarlane, with effect from 28 July 2011, The Honourable Sir Nigel Davis and The Honourable Sir Kim Lewison, with effect from 4 October 2011 and The Honourable Sir David Kitchin, with effect from 5 October 2011 to fill those vacancies. Sir Kim and Sir David are both chancery court judges who have made a substantial contribution to insolvency law. As the press release notes:


"Sir Kim Martin Jordan Lewison (59) was called to the Bar (Lincoln’s Inn) in 1975 and took Silk in 1991. He was appointed as an Assistant Recorder in 1994, as a Recorder in 1997, as a Deputy High Court Judge in 2000, was made a Bencher in 2003 and was appointed as a Member of the Competition Appeal Tribunal in 2004. He was appointed to the High Court (Chancery Division) in 2003 and was a Chancery Supervising Judge between 2007 and 2009. Mr Justice Lewison was Knighted in 2003.

Sir David James Tyson Kitchin (56) was called to the Bar (Gray’s Inn) in 1977 and has been a Bencher since 2003. He took silk in 1994 and was a Deputy High Court Judge from 2001 until his appointment as a Judge of the High Court, Chancery Division, in 2005. He has been Chancery Supervising Judge for the Wales, Western and Midland Circuits since 2009. Mr Justice Kitchin was Knighted in 2005."

We can now turn to the contribution of the Lord Rodger to insolvency law. Lord Rodger has been on the panel in a number of leading insolvency cases, where he gave a concurring judgment, i.e.

- Hague v Nam Tai Electronics Inc [2008] UKPC 13, [2008] B.C.C. 295 - case concerning winding up, and the liquidators duty of care to creditors in the BVI.

GFN SA and others v Bancredit Cayman Ltd (in official liquidation)[2009] UKPC 39, [2010] Bus. L.R. 587 - a case concerning winding up, security for costs and liquidators rejecting proofs of debt in the Cayman Islands.

Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc and others [2006] UKPC 26, [2007] 1 A.C. 508 - a case concerning bankruptcy in the Isle of Man and issues surrounding that jurisdiction and Chapter 11.

Buchler and Another v Talbot and Others [2004] UKHL 9, [2004] 2 A.C. 298 - the famous case on fixed and floating charges where the learned judge noted, "My Lords, I have had the privilege of reading in draft the speeches of my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Millett. I agree with them and for the reasons which they give I too would allow this appeal."

 - Smith (Administrator of Cosslett (Contractors) Ltd) v Bridgend County Borough Council [2001] UKHL 58, [2002] 1 A.C. 336 - a case concerning administration and fixed and floating charges where the learned judge noted, "My Lords, I have had the advantage of considering the speech of my noble and learned friend, Lord Hoffmann, in draft. I agree with it and for the reasons he gives I too would allow the appeal."

Jamieson, Petitioners, Court of Session (Inner House, First Division) 1997 S.C. 195; 1997 S.L.T. 821; 1997 S.C.L.R. 411; [1997] B.C.C. 682 - a case concerning the Insolvency Act 1986 s.63(1) and issues arising from the judgment in Powdrill v. Watson.

In terms of substantive insolvency judgments Lord Rodger did not deliver any substantive judgments that I have currently been able to locate. 





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