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Research Article
In re Lehman Brothers International (Europe): Positivism or the Rigour of Pedantry?
Article first published online: 11 OCT 2011
DOI: 10.1002/iir.199
Copyright © 2011 John Wiley & Sons, Ltd.
Additional Information
How to Cite
Nana, C. N. (2012), In re Lehman Brothers International (Europe): Positivism or the Rigour of Pedantry?. Int. Insolv. Rev., 21: 1–16. doi: 10.1002/iir.199
Publication History
- Issue published online: 16 MAR 2012
- Article first published online: 11 OCT 2011
Abstract
This paper examines the decisions of the Companies Court and Court of Appeal in the case of Lehman Brothers International (Europe) (in administration). It shows how the judges' undue focus on the literal meaning of the language used in Part 26 of the Companies Act 2006 had unfortunate consequences on the process of restructuring the company and contradicted the intention of the legislature. It therefore proposes that it may sometimes be important to revert to the erstwhile golden rule whereby judges may depart from the ‘plain meaning’ of the words used in a statute to avoid an absurd or unfair result. This may have prevented the judges from observing that a scheme under Part 26 can vary or extinguish a creditor's rights qua creditor, but cannot vary or extinguish property rights; although debt is a form of property. Copyright © 2011 John Wiley & Sons, Ltd.