Environmental Law's Contribution To The Growing Traction And Coherence Of The Public Interest In UK Insolvency Law

A well-known strand of academic literature towards the end of the 20th century examined what bearing the concept of the public interest had on insolvency law. Dominant approaches on this could be categorized broadly as creditor-oriented and community-oriented. A key objection to the community-oriented view was that the courts are not suited to identifying and applying public interest considerations. Since then, there has been no in-depth assessment of how far this main objection has been eroded. However, it is hard to ignore the confluence which has been formed by a prominent range of related United Kingdom (‘UK’) judicial authorities concerning environmental considerations in insolvency. This body of case law has built up over the past two decades, materializing from the same time period as the academic debate. Landmark early cases and high-profile present-day decisions are closely interlinked, and evince the courts’ willingness to recognize and lean in favour of public interest considerations. It is also noteworthy that the case law authorities have evolved in the context of English/Welsh and Scottish law, where academics have noted the difficulty of ascribing a meaningful theoretical foundation to the insolvency regime. The cases therefore show how environmental concerns have provided an avenue for the courts to lead the way in demonstrating an inclination towards a community-oriented rather than creditor-oriented perspective of insolvency law, notwithstanding this absence of a firm theoretical foundation. The case law also sets a firm stage for greater representation of public interest considerations in insolvency, beyond environmental protection objectives.