Over the summer of 2017 The Lawyer surveyed the top offshore firms about their litigation practices, strategy, and use of technology. What emerged most clearly is that litigation and general contentious work is big business for offshore firms. To take just a handful of examples, litigation represents around half the turnover at Collas Crill and Campbells, while at Appleby, Bedell Cristin and Harneys it accounts for between a quarter and a third of total billings.
The firms surveyed are reaping the benefits of strong court reputations and strong legal infrastructure in offshore jurisdictions. Conversely, global clients’ reported desire to avoid court proceedings in Russia and the CIS, India, the Middle East, Africa (particularly Nigeria) and Cyprus is also profiting the market. One firm reported a growing avoidance by clients of proceedings in Hong Kong because of growing delays in resolving disputes.
The largest firms by number of litigators tend to be those with roots in the Caribbean. Top of the table is Walkers, with 23 contentious partners in total, followed by Appleby with 17. Carey Olsen has 16, Harneys 15 and Conyers Dill & Pearman has 14. It should be noted that Mourant Ozannes and Maples & Calder did not submit their data and so are not included in these results.
The jurisdiction that houses the largest number of contentious partners of the 13 offshore firms that responded to the survey is Cayman Islands with 23 per cent of the total. Jersey houses 17 per cent and Guernsey 15 per cent.
With 23 partners, Walkers is the largest offshore firm in litigation, covering nine jurisdictions: Cayman, BVI, Hong Kong, Guernsey, Jersey, Bermuda, Singapore, London and Ireland. Its three-strong Guernsey practice derives from the 2016 merger with local boutique AO Hall. The firm reports that it is benefiting from an increase in minority shareholder activism in Asia, particularly in the context of take-private transactions.
Brexit, blockchain and Asia take-private deals
Top predictions from offshore firms
“We are likely to see an increase in dispute activity from the implementation of Brexit where parties are looking to terminate contracts or reinterpret them in light of Brexit consequences. We also envisage that we will see growth in the areas of cyber security, data protection disputes, Blockchain technology and trustee fiduciary litigation.”
“Insolvency work will increase as interest rates are likely to rise (albeit slowly) over time from Q1 2018.”
“We expect to see continued growth in insolvency-related matters globally, as well as more large-scale frauds being unearthed in Latin America as investigatory work and economic distress uncovers them.”
“We expect the Hong Kong market – both in terms of BVI and Cayman matters – to continue to grow, and we anticipate increasing our market share there.”
“The Jersey Royal Court continues to be exceptionally strong, particularly in relation to high-value and complex trusts disputes, as shown by the recent case of the Representation of Y Trust and Z Trust, in which we represented a family that successfully applied for variations to trust documents to allow the children of same sex relationships and those born out of wedlock to benefit from two substantial trusts.”
“There will be an increase in applications brought under Cape Town Convention before the Irish Commercial Court in the next one to two years, as the market responds to the Irish Courts’ now proven ability to deliver quality judgments in this area.”
“Asian minority shareholder activism is likely to continue in the short to medium term and may thereafter drop off as either the take-private market falls away or investors / corporates elect to effect take-private transactions in a way that leaves them less exposed to shareholder activism.”
While Appleby’s practice is concentrated on Cayman (five partners) and Bermuda (four partners), in June 2016 the firm also launched a dedicated Mauritian dispute resolution team consisting of five lawyers focusing primarily on disputes work. More generally, says Appleby litigation head Andrew Bolton, “we’ve seen an increase in corporate litigation coming from Hong Kong, China and Asia more widely and in particular shareholder, merger disputes and contested takeovers.”
Carey Olsen has 16 litigation partners, six of whom are in Guernsey and six in Jersey. In October 2016 it increased its global contentious reach when it opened in Hong Kong, relocating Cayman partner Michael Makridakis.
While Harneys has a total of seven partners across Bermuda, BVI and Cayman, the firm has noticeably been investing in contentious capability further afield; it now has four litigation partners in Hong Kong and four in London, giving it a global total of 15. It recently recruited lawyers from Quadrant Chambers, Linklaters and New Street Square. The firm has seen a rise in ‘fair value’ disputes in Cayman in particular, as well as an increase in Latin American and CIS-based shareholder disputes against a background of alleged fraud. However, the prevalence of fund collapses triggered by fraud appears to have tailed off with the conclusion of Primeo and Saad.
With a total of 14 litigation partners globally, Conyers Dill is focused largely on Caribbean jurisdictions. The Bermuda practice houses the largest contentious team with six partners, followed by four in Cayman and three in BVI. The firm reports that there has been an increase in the enforceability of foreign arbitration awards due to the BVI Arbitration Act. Conyers has also been actively involved in asset-tracing litigation from and by CIS states, including advising state-operated energy sector entities in Russia and Kazakhstan through to a complex receivership involving PRC work.
Collas Crill has opened up from its Channel Islands offering in recent years, recruiting disputes lawyers in Cayman and merging with BVI-based Farara Kerins to focus on cross-border commercial and insolvency litigation. It now has 12 litigation partners in total, six of whom are in Jersey and four in Guernsey.
Ogier has 11 partners, split relatively evenly across BVI, Guernsey, Cayman and Hong Kong, with the biggest team in Jersey with three partners. Ogier has developed its contentious private wealth capability, with the relocation of Oliver Payne from Cayman to Hong Kong and the recruitment of Alex Horsbrugh-Porter in Guernsey. The firm is bullish about Guernsey as a disputes centre, with the 25-week Carlyle trial a good example of the heavyweight work being handled by the courts. The trial, which covered 1,787 claimed breaches of duty, is understood to have been the biggest in the Commonwealth in 2016, with the judgment consisting of 525 pages of detailed findings of law and fact.
Bedell Cristin’s contentious capability is firmly Channel Islands-based, with six partners in Jersey; its five-year old Guernsey litigation practice has two partners. The firm has also invested in building up a dedicated regulatory and compliance team in Jersey headed by Edward Drummond and non-contentious funds partner Martin Paul, which includes data protection, regulatory, sanctions and tax information exchange agreements. Bedell reports that apart from its usual diet of heavily-contested trust disputes, there has also been an increase in regulatory matters in Jersey and Guernsey and some sanctions and requests for information by foreign tax authorities under Tax Information Exchange Agreements.
Isle of Man-based Cains has a three-partner litigation team, and reports a steady increase in asset tracing, as creditors of settlors, or beneficiaries, attack trust structures to try to enforce judgments obtained in other jurisdictions.
Campbells fields a total of six litigation partners, four of whom are located in Cayman. Its Hong Kong office, which opened in 2016, has one litigation partner. Campbells reports a regular pipeline of investment fund structure disputes in Cayman, while its BVI practice, led by Callum McNeil, tends to work on disputes involving holding companies as well as operating companies holding onshore assets, while the firm reports that there has been a decline in trust litigation.
Cayman has seen a number of major restructurings and liquidations in the last year. Chief among them was Ahmad Hamad Algosaibi & Brothers Company (AHAB) v Al-Sanea & Ors, a lengthy and complex case that is widely seen to have cemented Cayman’s reputation for litigation infrastructure. It involves the liquidation of nine Saad entities, part of Maan Al Sanea’s Saad family conglomerate which is alleged by the Ahmad Hamad Algosaibi Brothers partnerships (AHAB) to have been vehicles of a US$9.2bn(£6.9bn) fraud. Walkers partners Colette Wilkins and Shelley White are advising liquidators from Grant Thornton on the ensuing AHAB litigation; Linklaters is UK counsel. The AHAB trial began in July 2016. Campbells, led by Guy Manning, is advising the liquidation committee of Saad Investment Company.
One of the biggest ever contentious restructurings in Cayman, of Nasdaq-listed oil services group The Ocean Rig, has involved an unprecedented form of court-to-court protocol. The attempt to reduce the group’s $3.7bn debt burden involved four inter-related schemes of arrangements in the Cayman Islands and Chapter 15 proceedings in the US. Ogier partner Rachael Reynolds advised the liquidators from AlixPartners. Appleby and Milbank Tweed advised the Ad Hoc Group of creditors,while Campbells partner Mark Goodman advised a group of noteholders along with Kirkland & Ellis. Maples & Calder and Orrick are understood to have represented the company. Harneys has also been involved for creditors.
Collas Crill advised the joint provisional liquidators from RHSW Cayman of Platinum Partners Value Arbitrage Fund, a hedge fund with some $1.1bn assets under management. RHSW partners resigned from the liquidation in December 2016 to be replaced by partners from Borrelli Walsh, who instructed Ian Lambert of HSM and Lexa Hilliard QC of Wilberforce Chambers in London. Platinum Partners is also subject to a Chapter 15 filing in the US.
Cayman also saw a number of cases with Chinese involvement. These included a dispute between the principals of XiO Group with Chinese billionaire Xie Szhikun, in which Appleby was the Cayman firm involved along with Sidley Austin in Hong Kong, and Fangda as PRC counsel. Ogier, meanwhile, was involved on a fair-value dispute involving DangDang, a Cayman Islands company that operates as a business-to-business e-commerce company in China. Maples & Calder acted for the petitioner for payment for fair value following a buy-out transaction, while Ogier partner Ulrich Payne advised the dissenting shareholders.
In Re CHC Group, an ongoing restructuring of a service provider to the distressed oil and gas sector that has also seen onshore involvement from Weil Gotshal & Manges in London and New York, and DLA Piper in Palo Alto, Appleby partner Ton Heaver-Wren acted for the ultimate parent company. The restructuring raised a number of points of law on the appointment of joint provisional liquidators.
Appleby partner Fraser Robertson is acting for the Government of Nigeria in the first case to be brought under the Civil Asset Recovery Jersey Law 2007, which involves funds held by a Jersey company understood to be lined to associates of General Abacha, the former president of Nigeria. Walkers is advising Doraville Property Corporation, the entity holding the funds.
Bedell Cristin partners Anthony Robinson and Edward Drummond advised the plaintiffs in Crociani & Ors v Crociani & Ors, a long-running trust dispute which commenced in 2013 and went to trial for 10 weeks in 2017. Bedell Cristin instructed Simon Taube QC and Eason Rajah QC of Ten Old Square. Collas Crill partners Nuno Santsos-Costa and Elena Moran acted for three of the defendants in the dispute. The firm is understood to have replaced Carey Olsen in February 2016. The case raised important issues in relation to the meaning of benefit, the construction of trust deeds where there have been numerous changes of law, the test for concurrence and acquiescence and the rights of beneficiaries to complain about breaches that occurred prior to becoming a beneficiary.
A variety of firms have been involved in the Galasys case, involving a Jersey-incorporated company listed on AIM, whose non-executive directors have been embroiled in a complex and highly-charged dispute. Collas Crill partner Damian James acted for most of the members of the original board and the majority shareholder of Galasys. The boardroom dispute has triggered proceedings in Malaysia, London and Jersey. Other offshore firms involved for various parties were Mourant Ozannes and Appleby. Collas Crill instructed Tomas Elias of Serle Court.
Among the most eye-catching of liquidation-related cases was the ongoing cases surrounding BHS, in which Carey Olsen partner Jeremy Garrood is instructed by Duff & Phelps alongside DLA Piper. The administration is ongoing.
One of the biggest cases in Guernsey in recent times arose from the collapse of Carlyle Capital in 2008, a spin-off of US private equity giant The Carlyle Group. Carlyle Capital and its liquidators brought proceedings against The Carlyle Group, Carlyle’s former directors, investment manager claiming damages of over $1bn for alleged breaches of fiduciary duty. Ogier partner Simon Davies successfully defended The Carlyle Group and Carlyle Investment Management on the £1bn action, which is thought to be the largest in Guernsey’s history by financial value, duration and number of documents filed.
Collas Crill partner Gareth Bell acted for three of the company’s independent directors, instructing Philip Marshall QC and Matthew Morrison of Serle Court.
Bermuda continues to see a variety of major restructurings. One is the $1.5bn insolvency of Pacific Andes Resources Development, the parent company of a large corporate that harvests, sources, transports, processes and distributes seafood, fish oil and fishmeal. The complex and high-value case saw court involvement from Harneys and Appleby.
In a restructuring that has been lauded for the co-operation between the courts of Hong Kong and Bermuda, Conyers Dill partner Christian Luthi acted for Up Energy Development Group, a Hong Kong-listed coking coal company with subsidiaries in Canada and mainland China. A ‘light touch’ provisional liquidator was appointed in order to permit Up Energy to continue with its restructuring. Taylors in association with Walkers partners Kevin Taylor and Nicole Tovey are advising the provisional liquidators from Ernst & Young.
Walkers partners Rosalind Nicholson and John O’Driscoll are advising on a highly contentious ongoing matter in the BVI involving Chagala Group, a BVI company listed on the London Stock Exchange. This matter is being litigated in the BVI. Proceedings have been issued by a shareholder against the company itself and its directors. The matter has already resulted in what is seen as an important decision for the BVI market (TIPP Investments PCC v Chagala Group) and is currently proceeding by way of an accelerated timetable for a speedy trial. Walkers has instructed Michael Todd QC of Erskine Chambers. Other firms on the matter are understood to include Morgan Lewis, CMS, Fox Williams, Conyers Dill & Pearman and Forbes Hare.
In another long-running case, Carey Olsen partners John Greenfield and Elaine Gray are advising the joint liquidators of four BVI companies that are involved in the Tchenguiz structure and which has already given rise to landmark decisions in 2014 and 2015 by the Court of Appeal on the applicability and meaning of a statutory limitation on a trustee’s liability and the trustee’s right to indemnity in circumstances where the trust was effectively insolvent. A Privy Council hearing is scheduled for November 2017.
Conyers partner Mark Forte has acted on a large asset-tracing matter for the Kazakh state uranium mining company JSC NAC Kazatomprom, and is also instructed on KMG International NV to seek recovery of $200m in assets allegedly stripped from a Swiss debtor.
Isle of Man
Cains partner Peter Clucas instructed George Bompass QC of 4 Stone Buildings on Origo Partners v Brooks MacDonald Asset Management & Anor, in relation to proceedings brought by Secure Nominees to obtain a winding up order against Origo Partners or relief for unfair prejudice as a shareholder. The claim was successfully settled immediately ahead of a scheduled three-day trial. Cains partner Seth Caine is advising the liquidator of Kaupthing Singer & Friedlander (Isle of Man) (in liquidation in relation to the liquidation of KSFIOM, which went into insolvency with debts of £1bn in 2008). Creditors have now been paid 100 pence in the pound, and difficult issues now arise in relation to the calculation of creditors’ interest payable out of surplus assets with a trial on this point in March. Cains is instructing Lloyd Tamlyn of 3-4 South Square.