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Published online by Cambridge University Press: 05 June 2020
Friedrich Nietzsche proposed the ‘Eternal Recurrence’ thought experiment in his book, The Gay Science (1882). Drawing on ancient Greek and Indian philosophy, Eternal Recurrence is the idea that with infinite time and matter events will occur again and again without end. While not (quite) infinite, English and Welsh insolvency law does have a sufficient and significant history that reveals numerous examples of this phenomenon of repetition. This paper examines some of the patterns of repetition within the law and reform processes and how ‘broad’, ‘narrow’, and ‘deep’ Eternal Recurrence applies to English and Welsh insolvency law. Three examples of Eternal Recurrence are examined: (1) the plight of the unsecured creditor; (2) the quest for protection, including the use of security devices; and (3) the accountability of directors in corporate insolvency, with specific reference to human rights protection for directors versus insolvency law objectives for the benefit of creditors. Finally, suggestions are provided as to why ‘insolvency’ Eternal Recurrence is problematic, particularly for law reform development and the reform of insolvency law in England and Wales.
This piece was delivered as a paper, see J Tribe ‘Nietzsche's Eternal Recurrence and the Renaissance of English and Welsh Insolvency Law Reform’ at the Society of Legal Scholars Annual Conference 2019: Central Questions about Law, 5 September 2019, UCLan. I would like to thank the delegates for their helpful comments. I would also like to thank, Dr Mark Crosby, Ms Nicola Goscomb, Ms Tamsin Bailey, Professor Pádraig McAuliffe, Mr Giorgio Corno, Professor Mike Gordon, Dr Michelle Farrell, Dr Robert Knox, Dr John Picton, Ms Susan Morgan, Mr John Briggs, and Dr Stephen Baister for their helpful and constructive feedback on earlier drafts. This paper is better for all their efforts. Any errors or omissions are the sole responsibility of the author.
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6 Imprisonment for debt was abolished in the same year in England and Wales.
7 On Nietzsche's life see further Hollingdale, RJNietzsche: The Man and his Philosophy (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar.
8 Hollingdale, above n 7, p 30.
9 Insolvency as a term of art is normally used to denote the factual position of insolvency (eg Insolvency Act 1986, s 123) and as indicative of a general inability to settle outstanding claims by both debtor companies and debtor humans. For humans this legal state of insolvency can lead to bankruptcy in English and Welsh law if the formal bankruptcy procedure has been used. Bankruptcy is also sometimes used in an international sense to refer to the position of a debtor's insolvency. This reflects American usage, eg Chapter 11 bankruptcy. In this paper, bankruptcy is used in the broad sense to refer to an inability to pay debts as they fall due. Insolvency is used in the technical sense unless otherwise stated.
10 For an interesting use of Aristotelian ethics in the context of corporate law and directors’ duties see Wheeler, SCorporations and the Third Way (London: Hart Publishing, 2002)Google Scholar.
11 For an examination of Stigma, Compositions & Moratoria, Liberalisation & Discharge (SCAMLAD) in early modern insolvency law see J Tribe ‘Debtor treatment themes in personal bankruptcy policy development from the early-modern period to the present day – plus ça change (plus c'est la même chose)’ (unpublished PhD thesis, University College London (University of London), 2012).
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15 Hollingdale, above n 7, p 14.
16 ‘Was mich nicht umbringt macht mich stärker’ from F Nietzsche Twilight of the Idols (1888) in ‘Maxims and Arrows’ I, 8.
17 In his 1858 collection of poems (Aus meinem Leben) Nietzsche wrote a poem entitled ‘Rescue’.
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26 Nietzsche, above n 5, p xv.
27 See Löwith (1945), above n 24, at 273, who went on to call eternal recurrence, ‘the strangest if not the most absurd invention of a modern mind… Nietzsche's gospel of Eternal Recurrence’ (at 274).
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32 Nietzsche, above n 30, p 178. See also p 184 and the ‘ring of recurrence’.
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34 There is some reference to Eternal Recurrence his unpublished notes (Nachlass).
35 Heraclitus advocated a cycle of war and peace. Nietzsche also makes reference to him in Nietzsche, above n 5, para 285.
36 Nietzsche, above n 33, p 110.
37 Nietzsche, above n 33, p 123, Nietzsche's emphasis.
38 Nietzsche, above n 13, p xxxiii.
39 Hollingdale, above n 7, p 145.
40 Ibid, pp 164 and 190.
41 Ridley, above n 25, at 19.
42 F Nietzsche Nachlass, Werke XII, p 51 ff and XVI, p 397 ff.
43 Nietzsche, above n 5, para 341, p 194.
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46 Tribe, above n 14.
47 On policy making and the legislative process in insolvency see Tribe, J ‘“Policy subversion” in corporate insolvency: political science, Marxism and the role of power interests during the passage of insolvency legislation’ (2019) 32(2) Insolvency Intelligence 59Google Scholar.
48 Moratoria and super-priority financing are examples of the proverbial insolvency bad penny. Both areas have been mooted over time. Changing market conditions have been cited as one justification for the repetition on super-priority financing. See for example a proposal for super-priority financing in 2009 (Insolvency Service Encouraging Company Rescue – A Consultation (Insolvency Service, June 2009) p 8) and again in 2016 (Insolvency Service Summary of Responses: A Review of the Corporate Insolvency Framework (Insolvency Service, September 2016)). The proposed reforms were rejected on both occasions. Pre-existing security interests were deemed paramount.
49 Hollingdale, above n 7, p 102.
50 See for example H Mance ‘Britain has had enough of experts, says Gove’ (Financial Times, 3 June 2016).
51 The Prime Minister's principal advisor, Dominic Cummings, noted in the context of Government policy formulation that: ‘There are not enough people with deep expertise in specific fields’: see dominiccummings.com/2020/01/02/two-hands-are-a-lot-were-hiring-data-scientists-project-managers-policy-experts-assorted-weirdos/. See also T Helm ‘Cummings warned over civil service shake-up plan’ (The Guardian, 5 January 2020).
52 See Pfeffer, above n 24.
53 See Nietzsche, above n 13. See also Tribe, above n 14.
54 See Report of the Review Committee, Insolvency Law and Practice (Cmnd 8558, 1982) para 606 (hereafter Cork Report). See the Government's belated response A Revised Framework for Insolvency Law (Cmnd 9175, 1984). On Cork generally see D Hare and D Milman ‘Corporate insolvency: the Cork committee proposals’ (1983) 127 SJ 230 and D Milman and D Hare ‘Cutting Cork down to size’ (1984) 128 SJ 340. For Cork's personal view of the whole process see Cork, KCork on Cork (London: Macmillan, 1988)Google Scholar.
55 See further Tribe, J and Briggs, JMuir Hunter on Personal Insolvency vol 2 (London: Sweet & Maxwell, 78th edn, 2018)Google Scholar para 3-22.
56 On administration see Fletcher, IFThe Law of Insolvency (London: Sweet & Maxwell, 5th edn, 2017)Google Scholar para 16-001.
57 See further Lester, V MarkhamVictorian Insolvency – Bankruptcy, Imprisonment for Debt, and Company Winding-up in Nineteenth-Century England (Oxford: Oxford University Press, 1995)CrossRefGoogle Scholar.
58 See Tribe, J ‘The imprisonment for debt jurisdiction’ (2018) 31(3) Insolvency Intelligence 92Google Scholar.
59 Tribe, above n 11.
60 See Tribe, J ‘Discharge in bankruptcy: an historical and comparative examination of personal insolvency relief in England and Australia’ (2012) 20(1) Insolvency Law Journal 240Google Scholar.
61 See further Tribe, J ‘Bankruptcy and capital punishment in the 18th and 19th centuries’ (2009) 22(3) Insolvency Intelligence 44–47Google Scholar.
62 See further Wood, J ‘The sun is setting: is it time to legislate pre-packs?’ (2016) 67(2) NILQ 173Google Scholar.
64 On which see further J Tribe Corporate Insolvency Law: Challenging Orthodoxies in Theory, Design and Use (Cheltenham: Edward Elgar, forthcoming).
65 On aspects of this ongoing battle see Symes, CStatutory Priorities in Corporate Insolvency Law: An Analysis of Preferred Creditor Status (London: Routledge, 2008)Google Scholar.
66 See above n 53.
67 See further Hunter, M ‘The nature and functions of a rescue culture’ (1999) JBL Nov 491Google Scholar.
68 See further Kadens, E ‘The last bankrupt hanged: balancing incentives in the development of bankruptcy law’ (2010) 59 Duke Law Journal 1229Google Scholar.
69 See further Walters, A and Davis-White, MDirectors’ Disqualification and Insolvency Restrictions (London: Sweet & Maxwell, 3rd edn, 2009)Google Scholar.
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71 See Powdrill v Watson [1995] 2 AC 394. See also Collins, H ‘Transfer of undertakings and insolvency’ (1989) 18(3) ILJ 144CrossRefGoogle Scholar.
72 See further Lamont, C ‘Re-structuring leasehold estates under Chapter 11 of the US Bankruptcy Code and in England and Wales – a comparison’ (2018) 31(3) Insolvency Intelligence 69Google Scholar.
73 Encouraging Company Rescue – A Consultation, above n 48.
74 A Review of the Corporate Insolvency Framework – A Consultation on Options for Reform (London: Insolvency Service, May 2016) para 10.27.
75 Consultation on Reforms to the Regulation of Insolvency Practitioners (Insolvency Service, February 2011).
76 Office of Fair Trading The Market for Insolvency Practitioners in Corporate Insolvencies (July 2010). The OFT no longer exists. Its responsibilities have been passed to a number of different departments including the Financial Conduct Authority.
77 Salomon v Salomon [1897] AC 22.
78 Ibid, at 53.
79 On this watershed moment in insolvency law history see Giffard LJ's judgment in Re Panama, New Zealand, and Australian Royal Mail Co (1870) Ch App 318. On the instrument Giffard LJ noted ‘I see no difficulty or inconvenience in giving that effect to this instrument’. It is perhaps from this point that unsecured creditors’ fate was struck.
80 Milman, D ‘Priority rights on corporate insolvency’ in Clarke, A (ed) Current Issues in Insolvency Law. Current Legal Problems (London: Stevens, 1991) p 57Google Scholar. See also Lord Hope of Craighead in Re Spectrum Plus Ltd; National Westminster Bank plc v Spectrum Plus Ltd and Others [2005] UKHL 41, [2005] 4 All ER 209 para 97.
81 Ibid.
82 See further Tribe, above n 64.
83 See Cork Report, above n 54.
84 See further Hudson, AGreat Debates in Equity and Trusts (London: Palgrave Macmillan, 2014)CrossRefGoogle Scholar. See also Mitchell, C and Mitchell, P (eds) Landmark Cases in Equity (Oxford: Hart Publishing, 2014)Google Scholar.
85 O Kahn-Freund ‘Some reflections on company law reform’ (1943–1944) 7(1–2) MLR 54.
86 [2010] UKSC 51, [2011] 1 All ER 430.
87 Ibid per Lord Walker SCJ, para 101.
88 On pre-pack administration generally see Frisby, S ‘The second-chance culture and beyond: some observations on the pre-pack contribution’ (2009) 3(3) Law and Financial Markets Review 242CrossRefGoogle Scholar.
89 Finch, V ‘Pre-packaged administrations: bargains in the shadow of insolvency or shadowy bargains?’ (2006) Journal of Business Law 568Google Scholar.
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92 On this area see further G McCormack Proprietary Claims and Insolvency (London: Sweet & Maxwell, 1997).
93 [1979] 3 WLR 672.
94 Ibid.
95 Cork Report, above n 54.
96 Milman, above n 80.
97 See Goode, R ‘Is the law too favourable to secured creditors?’ (1983) 8(1) Canadian Business Law Journal 53Google Scholar.
98 For a discussion of the prescribed part's usefulness see Akintola, K ‘The prescribed part for unsecured creditors: a pithy review’ (2017) 30(4) Insolvency Intelligence 55Google Scholar. See also Keay, A ‘The prescribed part: sharing around the company's funds’ (2011) 24(6) Insolvency Intelligence 81Google Scholar.
99 [2008] EWHC 2339 (Ch), [2009] 2 All ER 402.
100 See Finch, VCorporate Insolvency Law: Perspectives and Principles (Cambridge: Cambridge University Press, 2002) p 427CrossRefGoogle Scholar.
101 Getzler, J and Payne, J (eds) Company Charges: Spectrum and Beyond (Oxford: Oxford University Press, 2006)Google Scholar.
102 See further HMRC Protecting your Assets in Insolvency – Consultation Document (London, 2019).
103 For a discussion of this development see K Akintola ‘The prescribed part for unsecured creditors: a further review’ (2019) 32(2) Insolvency Intelligence 67.
104 IS Consultation, above n 75, para 2.20.
105 IS Consultation, above n 75, para 2.22.
106 Ibid.
107 [2007] EWHC 2875 (Ch), [2008] 2 All ER 622.
108 Ibid, at para 3.
109 [2005] EWHC 160 (Ch), [2005] 2 All ER 737.
110 Ibid, at para 10.
111 [2006] EWHC 833 (Ch), [2007] 1 All ER 982.
112 Ibid, at para 24.
113 A similar point was made in Re C L Nye Ltd [1970] 3 All ER 1061, where Harman LJ referred to this species of creditor as ‘a mere unsecured creditor’.
114 [2004] EWHC 720 (Ch), [2004] 3 All ER 679.
115 Ibid, para 5.
116 Ibid.
117 [2005] EWHC 2400 (Ch), [2006] 1 All ER 357.
118 [1969] 1 All ER 441.
119 For an example of proactive unsecured creditor behaviour see the Privy Council case Cambridge Gas Transport Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc and Others [2006] UKPC 26, [2006] 3 All ER 829.
120 Cork Report, above n 54, para 914.
121 Cork Report, above n 54, para 917.
122 Cork Report, above n 54, para 916.
123 Cork Report, above n 54, para 914.
124 A Berle and G Means The Modern Corporation and Private Property (New York: Harcourt, 1968). For a critique of their work see ES Herman Corporate Control, Corporate Power (Cambridge: Cambridge University Press, 1981).
125 B Pettet Company Law (London: Longman, 2nd edn, 2004).
126 Berle and Means, above n 124.
127 Cork Report, above n 54, para 918.
128 Cork Report, above n 54, para 913.
129 Tribe, above n 64.
130 For two opposing views see Warren, E ‘Bankruptcy policy’ (1987) 54 University of Chicago Law Review 775CrossRefGoogle Scholar and Barid, D ‘Loss distribution, forum shopping and bankruptcy: a reply to Warren’ (1987) 54 University of Chicago Law Review 815CrossRefGoogle Scholar. For a more recent and novel approach see Mokal, RJCorporate Insolvency Law – Theory and Application (Oxford: Oxford University Press, 2005)CrossRefGoogle Scholar.
131 See further Buchler v Talbot [2004] UKHL 9, [2004] 2 AC 298 and the subsequent amendment to the Insolvency Act 1986 reversing the affect of this judgment: Insolvency Act 1986, s 176ZA.
133 Milman, above n 80.
134 On these alternatives to pari passu see V Finch ‘Is pari passu passé?’ (2000) 5 Insolvency Lawyer 194.
135 Milman, above n 80.
136 See further Williams, R ‘What can we expect to gain from reforming the insolvent trading remedy?’ (2015) 78(1) MLR 55CrossRefGoogle Scholar. On wrongful trading generally see Moss, G ‘No compensation for wrongful trading – where did it all go wrong?’ (2017) 30(4) Insolvency Intelligence 49Google Scholar.
137 See further www.manolete-partners.com/, where it is noted: ‘Manolete always assumes the entire risk of the case enabling the IP to make best use of his or her Insolvency Act powers in the interests of creditors’. Elsewhere they note ‘… This enables us to deliver maximum returns to Creditor Estates’ and ‘with Manolete financing the work of the IP and lawyers to make maximum recoveries for the creditor estates that they represent’ (emphasis added).
138 Although the OFT did not identify ‘any problems with the fundamental structure of insolvency regulation’: see IS Consultation, above n 75, para 2.12.
139 On the Enterprise Act 2002 generally see S Davies (ed) Insolvency and the Enterprise Act 2002 (Bristol: Jordan, 2003). See also S Frisby ‘In search of a rescue regime: the Enterprise Act 2002’ (2004) 67(2) MLR 247. On security in the post Enterprise Act 2002 world see R Stevens ‘Security after the Enterprise Act’ in Getzler and Payne, above n 101, p 15.
140 On the floating charge see further Mokal, RJ ‘The floating charge – an elegy’ in Worthington, S (ed) Commercial Law and Commercial Practice (Oxford: Hart Publishing, 2003) p 479Google Scholar.
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143 See Finch, above n 134.
144 See further Derham, SRThe Law of Set Off (Oxford: Oxford University Press, 3rd edn, 2003)Google Scholar.
145 See further Tribe, above n 91.
146 [2006] EWHC 3272 (Ch).
147 On the development of that court see Parkes, JA History of the Court of Chancery; with practical remarks on the recent commission, report, and evidence, and on the means of improving the administration of Justice in the English Courts of Equity (London: 1828)Google Scholar. See also Ritchie, J (ed) Reports of Cases decided by Francis Bacon in the High Court of Chancery (1617–1621) (Oxford: 1932)Google Scholar, which includes a number of judgments on insolvency issues. See further Tribe, J and Graham, D ‘Bacon in debt – the insolvency judgments of Francis, Lord Verulam’ (2006) 22(1) Insolvency Law and Practice 11Google Scholar.
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149 Eg Barlow Clowes, Polly Peck, Guinness.
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154 Parliament has specifically legislated for the removal of the right in other areas: see Theft Act 1968, s 31 and the Criminal Justice Act 1987, s 2(2). See Murphy, P (ed) Blackstone's Criminal Practice (Oxford: Oxford University Press, 2002)Google Scholar at F9.10–F9.14; see also Kirk and Woodcock: Serious Fraud – Investigation and Trial (London: Butterworths, 2nd edn, 1997) p 2.1.
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160 [1991] BCLC 869. This case involved the Companies Act 1985, s 435(6). See ‘DTI investigations: no privilege against self-incrimination’ (1992) 5(4) Insolvency Intelligence 30.
161 See Guinness v Saunders [1990] BCC 205. See also B Pettet Company Law (Harlow: Longman, 2001) p 162.
162 Appointed pursuant to Pt XIV of the Companies Act 1985.
163 [1994] BCC 641 (HL), [1993] BCC 473 (CA). See Stallworthy, M ‘Insolvency and complex fraud investigations in the United Kingdom: a blurring of boundaries’ (1994) 5(12) International Company and Commercial Law Review 418Google Scholar; ‘Confidentiality and self-incrimination issues: further developments’ (1994) JBL, May 282.
164 See above n 156 for a discussion of Re Arrows (No 2).
165 [1991] BCLC 869.
166 [1994] BCC 641 per Lord Browne-Wilkinson at 644(G).
167 [1994] BCC 641 per Lord Browne-Wilkinson at 647(B).
168 See Funke, Cremieux and Miailhe v France (82/1991/334/407), where it was held that a demand to produce self-incriminating documents was unlawful. See also Orkem v Commission of the European Communities (Case 374/87) [1991] 2 CEC 19, [1989] ECR 3283; Otto BV v Postbank NV (Case C-60/92, 10 November 1993).
169 Case No 19187/91 (17 December 1986) (1997) 23 EHRR 313. See also Stallworthy, M ‘Company investigations and the prosecution of fraud in the United Kingdom: conflicting public interests’ (1997) 8(4) International Company and Commercial Law Review 115Google Scholar; Taylor, K ‘Insolvency Act office holders’ powers of investigation: self-incrimination, disclosure and the potential effects of Saunders v United Kingdom’ (1997) 2(4) SLPQ 297Google Scholar.
170 Case No 19187/91 (17 December 1986) (1997) 23 EHRR 313.
171 Nietzsche, above n 5, p x.
172 Ibid, p xiv.
173 Pfeffer, above n 24, at 280.
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175 See further Birks, PUnjust Enrichment (Oxford: Oxford University Press, 2nd edn, 2005)CrossRefGoogle Scholar.
176 Tribe, above n 64.