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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

11 JAN 2010

New January 2010 updates in the ODNB that are pertinent to insolvency law and legal history generally

The January 2010 update of the Oxford Dictionary of National Biography (ODNB) contains a number of additions that are of interest to those interested in the history of insolvency law and policy and legal history generally. Among the updates feature four judges who handed down some important decisions in the area. There are also new entries for the Lord Rawlinson QC, the Lord Mishcon QC and Professor Kurt Lipstein QC.

The Lord Acker (Ackner, Desmond James Conrad, Baron Ackner (1920–2006), judge) receives a thorough biographical examination by Michael Beloff QC. Lord Ackner's early performance at University may provide some solace to struggling undergraduates. Beloff notes, "His unremarkable 2:2 in his tripos gave no hint of his future success...In 1945 he was called to the bar by the Middle Temple, with a third in his bar finals." Lord Ackner was on the panel in Stein v Blake (No.1) [1996] A.C. 243; [1995] 2 W.L.R. 710; [1995] 2 All E.R. 961; [1995] B.C.C. 543, the leading House of Lords authority on set-off. The Lord Ackner was also on the panel in Re British & Commonwealth Holdings Plc (Nos.1 and 2), [1993] A.C. 426; [1992] 3 W.L.R. 853; [1992] 4 All E.R. 876; [1992] B.C.C. 977, where it was held that, "The power to order production of documents under the Insolvency Act 1986 s.236 , extends to all documents which the administrator reasonably requires to see to carry out his functions."

The Lord Brightman (John Anson, Baron Brightman (1911–2006), judge) an expert in trusts and taxation according to his biogrpaher, was "called to the bar by Lincoln's Inn in 1932 and two years later joined the chambers of Fergus Morton, practising at the chancery bar." Brightman took silk in 1961. Amongst his pupils was the Baroness Thatcher. Whilst in silk he led David Graham (as he then was) in In Re Rolls Razor Ltd. (No. 2) [1970] Ch. 576 (discussed below). Brightman was appointed as a judge of the High Court's Chancery Division in 1970. He delivered a number of important insolvency judgments. Perhaps his most famous is that in: Re Lines Bros (In Liquidation) [1983] Ch. 1; [1982] 2 W.L.R. 1010. The case concerned, "the proper way to apply a company's property in a creditors' voluntary liquidation where foreign currency debts are involved is to convert them into sterling at the rate of exchange prevailing at the date of the resolution to wind up." This time David Graham QC, now in silk, appeared before Lord Justice Brightman (as he then was) leading Mr Robin Potts (as he then was).

Lord Brightman also delivered the judgment in Re Emmadart Ltd [1979] Ch. 540; [1979] 2 W.L.R. 868; [1979] 1 All E.R. 599; (1979) 123 S.J. 15, in which he held that, "A receiver has no power to present a petition for winding up as the company's agent, unless the articles confer such a power on the directors; he may, however, have such power under a debenture." Lord Brightman will perhaps best be remembered in popular thought for his judgment on barristers' clothing. As his biographer notes, "In 1983 in a case attracting much public interest and jocularity, he found that the barrister Ann Mallalieu could not claim tax relief on the clothes she wore beneath her gown when pleading in court." See: Mallalieu v Drummond (Inspector of Taxes)[1983] 2 A.C. 861; [1983] 3 W.L.R. 409.

Sir Robert Edgar Megarry (1910–2006), judge and legal scholar, also receives a new biographical treatment by Peter Gibson. The entry is of interest to both teachers and students alike as well as legal scholars. Gibson notes that Sir Robert taught before going up to Cambridge and that he, "innovatively required his pupils to answer questionnaires about his effectiveness as a teacher." A pre-cursor of Module Evaluation Questionnaires perhaps! In an encouraging passage for students (but not to the faculty at Cambridge), Gibson goes on to note that Sir Robert, "...read law at Cambridge, but found the course dull and uninspiring, gaining only a third in part one, a lower second in part two of the law tripos and a third in the LLB, preferring such wider pursuits as playing football and tennis for his college, learning to fly, and being Varsity's first music critic (writing under a pseudonym to hide his activities from his supervisor)."

Sir Robert practiced at the Chancery Bar from 1946 until 1967 when he was appointed to the Chancery Division. In 1976 he was appointed Vice-Chancellor of the Chancery Division. He delivered a number of important insolvency judgments. In Re Rolls Razor Ltd. (No. 2) [1970] Ch. 576, he considered the scope private examinations. Sir Robert also gave the judgment in Re Kayford Ltd (In Liquidation) [1975] 1 W.L.R. 279; [1975] 1 All E.R. 604, where it was held that "Advance deposits received by a mail order company and placed in a separate account are held on trust for the subscribers." This is a decision which should never be neglected particularly in relation to contemporary consumer protection and cases such as Farepak. In Re Highfield Commodities Ltd [1985] 1 W.L.R. 149; [1984] 3 All E.R. 884, Sir Robert held, "Where the Secretary of State seeks to wind up a company under the Companies Act 1967 s.35 on grounds of "general public interest," it is not appropriate to seek an undertaking in damages."

The Lord Simon (Jocelyn Edward Salis, Baron Simon of Glaisdale (1911–2006), politician and judge) is given an extraordinarily thorough biographical exposition by Professor SM Cretney. As the learned professor notes, "Simon was the last exemplar of what had become a tradition of the English legal system: men who successfully practised at the bar, became MPs, held ministerial office, and were then appointed to the highest judicial office." Lord Simon of Glaisdale was on the panel in National Westminster Bank Ltd v Halesowen Presswork and Assemblies Ltd [1972] A.C. 785; [1972] 2 W.L.R. 455; [1972] 1 All E.R. 641, where it was held that, "The rule that in bankruptcy mutual dealings must be set off cannot be contracted out of." He also sat on the (majority) panel in British Eagle International Airlines Ltd v Compagnie Nationale Air France [1975] 1 W.L.R. 758; [1975] 2 All E.R. 390; [1975] 2 Lloyd's Rep. 43, where it was held that, "There can be no contracting out of the provisions of the Companies Act 1948 s.302 that the property of a company on its winding up be distributed among its creditors and members according to their rights and interests in the company."

The Lord Rawlinson QC (Rawlinson, Peter Anthony Grayson, Baron Rawlinson of Ewell (1919–2006), barrister and politician) now also features in the updated ODNB. His role in the Poulson bankruptcy has been discussed elsewhere. Lord Howe QC (formerly Sir Geoffrey, the Foreign Secretary, Chancellor of the Exchequer and now the ODNB entry author on Rawlinson) fails to mention Rawlinson's involvement in the Poulson case, although he mentions Profumo. Poulson is also mentioned in Rawlinson's A Price to High which seems to be Howe's main source. Howe also fails to mention Rawlinson's tenure as Recorder of Kingston-upon-Thames. Few primary sources appear to have been consulted. The LSE Legal Biography Project have nothing to fear from this inaccurate quarter perhaps. Howe's treatment is rather superficial when you compare it with the scholastic thoroughness of Professor Cretney's exposition of Lord Simon's life or the lucidity of Sir Peter Gibson's treatment of Sir Robert Megarry's long and incredibly fruitful life.

In the legal practice sphere the Lord Mishcon QC (Victor, Baron Mishcon (1915–2006), solicitor and politician) now also has an entry. He once remarked, "Insolvency is not a very thrilling or amusing subject." (Hansard, 15 January 1985). This may have been informed by his early practice, which his biographer (Sir Ross Cranston) notes included, "a mixed practice, some commercial work, with company formation and liquidation, property, estates, and litigation..." Professor David Graham QC has very fond memories of the Lord Mishcon both for his contribution in the House of Lords to the insolvency debates of 1985, as well as for his work in the Jewish community.

In terms of legal history and insolvency scholarship it is also interesting to note that Professor Kurt Lipstein QC (1909–2006), the world renowned jurist, now also has an entry in the ODNB. He wrote on insolvency issues, particularly from a comparative perspective. See for example: Lipstein, K. 1990. Chapter 14. Early treaties for the recognition and enforcement of foreign bankruptcies. In: Fletcher I. F. (ed) Cross Border Insolvency – Comparative Dimensions? Comparative Law 1990, Vol. 12; 223-236. In reviewing Professor Lipstein's contribution Professor Sir Roy Goode QC observed (CLJ, January 2003, at page 205):

"The concluding part of the publication examnines ways in which the regulation of cross-border insolvency might be improved and made more effective. This part opens with a fascinating decription by Professor Kurt Lipstein of mutual recognition and enforcement treatise from 1715, beginning with the Treaty of Alliance between France and the Catholic Swiss Cantons and Valais. This paper shows the vigour of bilateral treatises relating to bankruptcy proceddings compared with the fraility of efforts to conclude operative multilateral conventions..."

This survey by Professor Lipstein can usefully be read in conjunction with the work of Dr Kurt Nadelman on cross-border insolvency. See also Professor Lipstein's:

  • Lipstein, K. Jurisdiction in bankruptcy. (1949) Modern Law Review, 12; 454-476.
  • Lipstein, K. Bankruptcy and the Hague Conventions. In: Aderhold, E; Schücking, C; Stürner, R; (ed), Festschrift für Hans Hanisch, 149-152. 1994.

Professor Lipstein also taught someone who has written extensively on our subject, namely, Professor Ian F. Fletcher.


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