ABSTRACT
Thus far we have considered two responsibilities that are imposed on directors as a result of statute. We now turn to a responsibility that has been developed, not by the legislature, but by the courts, and they have done this over the past 20 years or so. This is a duty imposed on directors to consider the interests of their companies’ creditors in certain circumstances. There has been a substantial corpus of case law on this responsibility, and there has been a significant amount of debate as to whether the responsibility should exist. This latter issue is discussed in detail in Chapter 19. What this chapter and the following two chapters seek to do is to provide an exposition and analysis of the law as it has developed. This Chapter specifically charts the developments that have taken place since the responsibility was first raised in 1976. The focus is on the law in the UK, but the law is practically the same in Ireland, Australia and New Zealand, and some of the decisions in these jurisdictions are considered, particularly where they have contributed to the development of the jurisprudence in the area. The chapter includes some consideration of the law in these countries, together with Canada and the United States. The latter’s law shares some commonality with the UK and the other countries mentioned above, although it has tended to develop in different ways to that in Ireland, Australia and New Zealand.1
