The Jersey Law Review - June 2002
JERSEY INSOLVENCY LAW IN PRACTICE by ANTHONY DESSAIN AND MICHAEL WILKINS Published by Key Haven Publications plc, 2nd edition 2000. Cost £95.
The first edition of this work was described in its review elsewhere as ‘written by professionals, mainly for professionals’ and ‘a masterpiece of clarity and an authoritative exposition of the subject, packed with technical information, commentary and practical guidance’.
The second edition has both lived up to and enhanced that reputation.
The treatment of case law and statutory provisions has, of course, been brought up to date, as one would expect. In addition, four appendices have been added dealing with enforcement of foreign judgments, limited liability partnerships, special cross-border situations (taxation, trust and estate planning) and a checklist for creditors’ winding up under Article 157 of the Companies (Jersey) Law 1991. The book also includes an entirely new chapter providing, as the authors put it in the preface, ‘a flavour – only a flavour’ of the impact of the Human Rights (Jersey) Law 2000 on the Jersey insolvency regime.
The importance of the book for a practitioner in the United Kingdom lies in the way it describes the well-developed, enlightened, constructive and pragmatic approach of the Jersey jurisdiction towards insolvencies involving foreign elements in the spirit of ‘comity’, consistently with Jersey’s status as an international financial centre. This position is, no doubt, contributed to substantially by the innovative and broad-minded attitude of the legal profession and the judiciary in Jersey; and the book plays a significant role in the process by providing a clear explanation of and commentary on the manifestation of that attitude in reported and unreported cases.
The versatility of the law generally of Jersey is also demonstrated by its multifarious sources as listed in the book: domestic statutory law; UK statutes (if expressly extended to Jersey and registered by the Royal Court), including the delegated legislation made under it; Jersey and Norman customary law; Jersey writers; English common law (but presumably not the English rules of equity); and, by way of persuasive authority, English and Commonwealth case law and EU legislation (to the extent expressly adopted by Jersey by virtue of its special status under Protocol 3 of the Act of the Accession to the Treaty of Rome of the UK).
Despite all this, one significant oddity adverted to by the authors is in relation to the lump sum and annuity benefits of an undischarged bankrupt under an occupational or personal pension scheme. The decision of English courts in the Landau case is likely to be given effect in Jersey, so that these benefits would vest in the trustee in bankruptcy for the benefit of the creditors, but the relevant provisions of the Welfare Reform and Pensions Act 1999 of the UK overriding the Landau decision will have no effect in Jersey, because those particular provisions have not been extended to or adopted in Jersey. It is very much hoped that now that this problem has been brought to light in the book, the authorities in Jersey will seek legislative changes to remedy this socially unfair anomaly.
Shashi Rajani is a solicitor of the Supreme Court of England and Wales and a partner in Davies Arnold Cooper, London.