Friday, 6 May 2011

The New Supremes: Mr Jonathan Sumption OBE QC and Lord Justice Wilson and insolvency

The recent announcement that Mr Jonathan Sumption OBE QC, the acclaimed historian and barrister (pictured right - for an excellent interview see here), has been appointed to the Supreme Court could not pass the blog by without some reflection on his not inconsiderable contact with the insolvency laws during his work as an advocate. In a more orthodox appointment, in terms of rising through the judicial hierarchy, Lord Justice Wilson (pictured below left) has been elevated from the Court of Appeal to the Supreme Court. We can also consider his insolvency contribution here. The successful applicants have commented on their appointments. Lord Justice Wilson said: “I am deeply honoured by my appointment which presents a huge challenge and casts a heavy burden of responsibility. I hope to contribute wisely to the development of the law.” Mr Jonathan Sumption QC said: “This is a challenging time for the development of the law, and I am honoured to have the opportunity of contributing to the work of one of the world’s great common law courts.” Now let us turn to the most important question - have either of these new Supreme Court Justices had much impact hitherto on the insolvency jurisdiction? A brief perusal of the cases throws up the following; 

Sumption
Re HIH, McGrath and others v. Riddell and others [2008] UKHL 21 - this case concerned the principle of judicial comity under s 426 of the Insolvency Act 1986 (IA86) and whether differences in pari passu distribution between friendly jurisdictions justified refusal of assistance
Inherent jurisdiction of court and whether such common law jurisdiction exists to disapply English principle of pari passu distribution by allowing assets to be transferred to a foreign liquidation.
CRe Park Air Services plc, Christopher Moran Holdings Ltd v Bairstow and another [1999] 14 EG 149 - this case concerned the disclaimer of a lease and determination of loss and damage to a landlord under section 178(6) of IA86.
Powdrill and another v Watson and another ; Re Leyland DAF Ltd (No 2) ; Re Ferranti International plc [1995] 1 BCLC 386 - the world famous case on the adoption of employment contracts. Sumption acted for the administrators.  
Re New Bullas Trading Ltd [1994] 1 BCLC 485 - the famous case on the characterisation of a charge on book debts - is it floating is it fixed - now resolved by Re Spectrum. 
MS Fashions Ltd and others v Bank of Credit and Commerce International SA (in liq) and others (No 2) [1993] BCLC 1200 - the famous case on set-off.



With the above cases in mind it could be argued that Mr Jonathan Sumption QC's appointment to the Supreme Court  is a welcome development for the development of our subject. 



Wilson, LJ
As Wilson, LJ is a family judge we might not expect to see much insolvency related material. His contribution is a bit more scanty and a bit more recent than Sumption's. Wilson, LJ has given insolvency related judgments in: 

BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL plc and Others (2011) Times, 14 March - a case on s.123 IA86.
Rubin and Another v Eurofinance SA and Others (2010) Times, 5 October - a case which involves issues around  the conflict of laws, bankruptcy and enforcing a bankruptcy order from US court.


Picture Credit: http://www.smh.com.au/ffximage/2005/09/12/jonathansumption_narrowweb__200x236.jpg

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