The end of the football season is a fine time to be reviewing this essay collection on Restitution and Insolvency . The struggle for promotion and against relegation is replicated in the efforts of restitution claimants to demonstrate entitlement to the Premier League status of the secured creditor and to avoid the agony of relegation to the more common or garden (Nationwide) status of the unsecured creditor. This is the major theme of this collection, although the preface does point out that some other topics of common interest to restitution and insolvency lawyers are discussed too. Reference will be made to most of the contributions in this review; if anyone is left out it is only because of difficulty in fitting that essay into the themes this review will explore.

The book “kicks off” with two essays, one by Vanessa Finch and Sarah Worthington and the other by Jonathan Hill, which call for a clearer and more rational identification of the policy reasons for affording priority status to certain claims in insolvency. Finch and Worthington do this in the context of restitutionary claims and argue that a distinction should be drawn between subtractive unjust enrichment and disgorgement of the profits of wrongdoing. The former should attract priority status because the insolvent’s enrichment takes the form of an accretion to its assets, is at the expense of the claimant, and unsecured creditors are not rendered worse off. The latter should not get priority, even though unsecured creditors would be in a similar position, because no claimant has suffered any relevant subtraction. This distinction is rational because it is necessary not just to explain why the insolvent’s estate (using that term in the American sense) should not keep the enrichment but also why one particular claimant should get it. Knowledge of the fate of unsecured creditors tends to diminish sympathy for the “windfall” argument in connection with disgorgement, but can also leave one less than completely convinced that priority status should be afforded the claimant in the other case. Some refinement of the argument is provided by Craig Rotherham in his essay on “Tracing and Justice in Insolvency”, where the author points out that some creditors who have transferred value to the insolvent are not entitled to restitutionary priority because they are voluntary creditors who have assumed the risk of the other party’s insolvency, e.g., contract claimants. Indeed some voluntary creditors are more voluntary than others, e.g., commercial contracting parties as opposed to consumers, and some involuntary creditors are less deserving of priority because they have been careless. The reviewer is an insolvency lawyer and must confess to some dissatisfaction with the proposition that claimants in subtractive unjust enrichment should get paid in full before other unsecured creditors. Professor Hill’s essay does not enter into this debate, being concerned with the position of proprietary security claimants. He makes a strong case for the adoption of a unified set of principles for determining priority for (and between) all classes of property (real, chattels, non-possessory security).

Two essays, one by Sarah Worthington and the other by Mark Armstrong and Alex Cerfontaine, consider Banque Financière de la Cité v. Parc (Battersea) Ltd [1999] 1 A.C. 221. There is broad welcome here for the acceptance of the subrogation remedy in this context but understandable perplexity as to its application on the specific facts of the case. The unjust factor is not clearly identified. Mistake is the most likely but there was no payment to recover. Rescission of the contract of loan is just as far removed because the mistake does not seem sufficiently fundamental.

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