Reviewed by Anthony Cheshire SC
Author: Nicholas J. Simpson (LexisNexis, 2020)
As part of a bonding experience, my college lawyer group went to the cinema to watch The Accused or some similar drama. When we came out, our first conversation was not about the key issues in the film of brutal sexual violence, the inadequacies of the legal system or the merits of vigilante justice, but rather about why the jury box in the opening scene had more than twelve seats. It was a sad indictment on the somewhat obsessive tendencies of the legal mind.
Since that time, I have always strived to divert conversations, whether with lawyers or non-lawyers, away from legal matters. My heart sinks at the question: 'Are you working on any interesting cases at the moment?', which always seems to me to reflect a conversational failure on my part rather than any genuine interest in my work.
Perhaps my most important gift to fledgling barristers on the bar course has been asking them to reflect on whether a particular area of law or a case on which they are working really is 'interesting' and how such an assertion would hold upon on a Friday night in a bar or at a dinner party with non-lawyers.
So, as I was reading the first chapter of Nicholas Simpson’s The Law of Bankruptcy Notices and Creditors’ Petitions, I bristled as he described the adoption by parliament in the Bankruptcy Act 1966 of many of the recommendations of the Clyne Report as 'intriguing'; and raised an eyebrow as he described the distinction between a final judgment and a final order as being of 'interest'.
My pedantic and perhaps obsessive sensitivity to the use (or misuse) of such descriptors, however, did not distract me from my enjoyment of the first chapter of this book, which is a brief history and overview of the area. Simpson writes well, providing an overview that is easily accessible and (in spite of myself) interesting, without becoming bogged down in, or imbalanced by, too much detail.
I had not heard the suggestion before that the term bankruptcy derives from banque, the French word for table, and ruptus, the Latin word for break, suggesting someone who no longer trades or, literally, has broken their table. I was also not aware of the ideological tussle through the 17th and 18th centuries between stigmatising and showing derision towards bankrupts on the one hand, as reflected in the debtors’ prisons, and showing clemency and pity at least to honest bankrupts on the other, as ultimately prevailed.
It is in the following chapters, however, that Simpson’s book contains its real substance, which is an invaluable practical guide to the bankruptcy process. It is there that this book earns its worth.
As Simpson recognises, there is a huge amount of authority in this area and it is not possible to identify, let alone review all the authority on, every issue that may arise. What he provides is an essential guide to the preparation and pursuing of a valid bankruptcy notice and creditor’s petition and the grounds upon which each may be challenged. Given this is, as Simpson himself describes it, an 'unduly technical' area, there are many pitfalls that he identifies, with extensive footnotes, but there are also practical considerations set out that will help frame a case in relation to those pitfalls. For instance, after reviewing the relevant authorities on setting aside a bankruptcy notice as an abuse of process, Simpson helpfully sets out ten factors relevant in identifying whether a bankruptcy notice may have been issued for a collateral purpose.
Any practitioner practising in this area needs to have a logical guide and checklist of at least the key issues and key authorities in order to navigate safely through the process. This book fulfils that purpose, but provides so much more.
There is a user-friendly index, which is not always the case with legal texts. I tested it by reference to some of the more obscure issues I have come across in this area and it passed with flying colours. There are also 29 useful precedents.
In the introductory chapter, Simpson details how the recommendation of the 1988 Harmer Report for personal and corporate insolvency to be unified was not adopted. I hope that in a second edition of this book, Simpson includes a concluding chapter that sets out his thoughts and conclusions as to where bankruptcy law now stands and his ideas for potential reform. I would be interested in hearing those thoughts, even on a Friday night!