Phillip Taylor MBE reviews. The Framework of Corporate Insolvency Law

BOOK REVIEW

THE FRAMEWORK OF CORPORATE INSOLVENCY LAW

By Hamish Anderson

ISBN: 978 0 19880 531 1

OXFORD UNIVERSITY PRESS

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CORPORATE INSOLVENCY LAW:
A SEASONED PRACTITIONER OFFERS NEW PERSPECTIVES AND INSIGHTS

An appreciation by Elizabeth Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers
and Reviews Editor, “The Barrister”

‘English corporate insolvency law,’ explains author Hamish Anderson, ‘meets the social and economic need for rules to deal with the assets and undertaking of a defaulting debtor company in a way which does not stifle economic activity.’
Expert commentary on said rules is delivered aplenty in this erudite new legal text from the Oxford University Press.

The approach is both insightful and practical and should certainly pique the interest of practitioners specialising in this field in which much has happened over the past forty or so years. During this time, the volume of academic attention generated in this area has spectacularly increased, notably following the repercussions of the financial crisis (or should we say crises) of 2008.

Writing in the foreword, Richards LJ remarks that ‘it is striking… that for all the contemporary significance of the issues and the mass of new law, recourse is frequently necessary to cases decided over the last 200 years.’ He adds that the present law, ‘although new in many respects, is underpinned by some long-established principles.’

Focusing on such principles, the book deals with the salient aspects of corporate insolvency law, including obviously, the purpose and function of its rules. The result, says the author, is ‘neither a text book, nor a reference book; it is complementary to both.’

The book was completed following the author’s retirement from Norton Rose Fulbright early in 2017. The fruits of his expertise garnered over a working lifetime are here placed at your disposal. But why, he asks somewhat rhetorically, have insolvency law at all? The answer is that credit which is indispensable in a free market economy ‘brings with it the possibility of default’ and -- one might add -- the troublesome consequences.

Over about 300 pages and twenty-two chapters, the author fleshes out the framework, functions and objectives of corporate insolvency law, its underlying concepts and fundamentally, the meaning of insolvency, covering such matters as liquidation, administration and CVAs, company voluntary arrangements. There is of course, much more besides, including comment on expenses, creditors’ rights, the ranking of claims and a final chapter on cross-border insolvency.

Of general interest and wry comment from many a reader is the chapter on ‘phoenixism’ and ‘pre-packing’, two pet hates within the business community and elsewhere. ‘Phoenixism’ refers to firms which rise phoenix-like from the ashes of their insolvency and proceed, in any number of cases, to carry on business as usual. ‘Pre-packing’ refers to the pre-arranged sale of a business immediately an administrator is appointed. The intriguing details are to be found in this book, which indeed functions admirably as a complement to other reference books on this subject.

‘I hope that my book will assist the academic study of insolvency law and equally, be of use to all who apply it,’ says the author. Given the scholarly analysis this book provides, as well as its accessible style, there is little doubt that this hope will be realised. In the considered opinion of Richards, the book is an important addition to the literature on this often vexed subject, concluding that ‘a second edition will soon be needed.’

The publication date is stated as at 2017. The law is attempted to be stated as at 1st December 2016 although changes in the law are taking place in 2017.

[zarac]

Phillip, thank you for your video. I am interested to know your opinion in regard to trading trusts and corporate insolvency. In Australia, there seems to be conflicting views. How does the UK judiciary deal with insolvent companies using a trading trust?