Lloyd's Maritime and Commercial Law Quarterly
Lords Hoffmann and Millett and the shaping of Credit and Insolvency Law
Gerard McCormack *
This paper examines the influences exerted by Lord Hoffmann and Lord Millett in the development of Credit and Insolvency Law over the past decade or so. Both have made notable contributions and there has been a consensus of view in many cases. Nevertheless, it is possible to detect a certain difference in approach. Lord Hoffmann tends to emphasize more freedom of contract, ie, it is up to contracting parties to shape the parameters of the rights that they are bringing into existence by contract and it is not for judges to frustrate the designs and expectations of commercial people by suggesting that what they are doing is conceptually impossible. Lord Millett has adopted more of an institutional view, ie, legal categories have more or less settled and definite characteristics and it is not for contracting parties to tamper with or alter these characteristics at their will.
Introduction
The recent retirement of Lord Millett affords an appropriate opportunity to evaluate his contribution to the development of English commercial law. I will evaluate his contribution alongside that of Lord Hoffmann, who is fortunately not due to retire from the Bench until 2009. Both Lords Hoffmann and Millett have profoundly influenced the shaping of law in this area during the past 20 years or so. They are very different, however, in terms of personalities and each has made a distinctive contribution.1
Lord Hoffmann grew up in South Africa and practiced as a lawyer in South Africa before coming to England.2
His early professional days in England were spent as an academic at Oxford. He combined academic life with part-time practice before abandoning an academic career for a lucrative practice at the Bar. While his early academic writings and teaching assignments were principally in the field of the Law of Evidence, his English professional practice was that of a distinguished Chancery practitioner and included many commercial cases. Lord Millett followed a more conventionally English career path but one distinguishing characteristic has been a penchant and a flair for academic writing. He has published extensively in some of the leading academic
* Professor of Law, University of Manchester.
1. Lord Millett’s extra-judicial interests are highlighted in an interview with Frances Gibbs in The Times
, 1 April 2000, whereas Lord Hoffmann’s links with Amnesty International have attracted judicial attention: see R
v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 1)
[2000] 1 AC 61; R
v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2)
[2000] 1 AC 119; R
v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3)
[2000] 1 AC 147.
2. See his Who’s Who
entry.
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