Offshore litigation boom is no bubble

There are good reasons why jurisdictions such as Jersey are seeing more disputes coming before the courts

Matthew Thompson

Earlier this month (1 October) the managing partner of Olephant Solicitors, Jan Mugerwa, claimed in an article in these pages that the offshore litigation boom would be just a bubble unless jurisdictions dump protectionism. As one of a hundred thousand souls clinging to a rock known as Jersey, I humbly ­offer a different perspective.

The litigation boom offshore is no mere bubble. It is one symptom of the economic troubles in Europe and the US. Offshore jurisdictions have always had litigation practices supporting structures including trusts, funds and investment vehicles developed over the past 20 years. While such structures continue to be created, some are coming to an end with significantly lower values than when they were set up. The boom flows from claims to such assets where agreement cannot be reached on a way forward. Yet to come are proceedings to hold someone responsible for losses.

Can offshore courts cope? From a Jersey perspective, starting with the judiciary, the quality of judgments emanating from the Royal Court, in particular on trust matters, is well-known. They are the subject of comment by onshore and offshore practitioners alike. In relation to the Esteem case, Lord Walker described the judgments as “magisterial”, as well as expressing “deep and unfeigned admiration”.

While most judges from the Royal Court are qualified Jersey lawyers, the court supplements its quality with the support of retired members of the UK judiciary or QCs.

Matters do not end there because the Court of Appeal of the Channel Islands is also made up of a panel of well-known silks. For some it is a stepping stone to a UK judicial appointment. Recent ex-members include Tugendhat J, Vos J and Gloster J. The most famous ex-member of the Court of Appeal is Lord Sumption. Rights of appeal to the Privy Council remain.

Turning to the profession itself, it is fused. Lawyers in Jersey need the skills of barristers and solicitors, and many practices are made up of a mixture of the two. It is an effective discipline to have to justify advice given to a client before the scrutiny of the Royal Court.

That is not to say that support from outside is not welcome. Far from it. In many cases, even if English barristers do not have rights of audience they play a significant role as part of the team.

The person making submissions is important, but only one of the cast. The team is often spread over a number of locations, using technology to provide effective response.

The AK investments decision was a case where the Privy Council dismissed an appeal against an application seeking to set aside proceedings commenced in the Isle of Man although the natural forum was Kyrgyzstan. The point in that case was that if there was no trial in the Isle of Man there would be no trial anywhere. The decision does not support any conclusion that English courts will take the same view of the Channel Islands or other offshore jurisdictions just because members of the bar do not have rights of audience.