Ever since the Privy Council’s landmark decision in Investec v Glenalla1 in April 2018, there have been various attempts to use the arguments raised in that case in England, on both sides of the issue (being in the main whether a trust’s creditors could enforce their claims against the trust’s assets directly, or had to rely on pursuing the trustees and the trustees’ right of indemnity from the trust assets in turn).

January of 2021 saw a particularly ambitious attempt to use the Investec authority to the advantage of the trustees of a family will trust, endeavouring (as they were) to avoid several millions of pounds of liability to a (purportedly) secured lender.

In Williams v Simm2 the Court was asked to look afresh at the Privy Council’s decision in Investec as it applied to a notionally simple domestic will trust.

As this piece is being written, cases of infections with COVID-19 are surging (once again) all across Europe. Although we hoped that the virus would be left behind together with the year 2020, COVID has not loosened its grip over everyday life and also continues to affect judicial and administrative processes in Liechtenstein. Consequently, the Liechtenstein government has recognized the necessity to extend ancillary administrative measures (nearly) throughout the current year (until 30 September).

Onshore or offshore, whatever your industry, ESG factors are here to stay - that was the emerging theme of a series of workshops we ran on sustainability issues within fraud and insolvency at September’s FIRE Summit for fraud and insolvency practitioners.

That’s not to say that the future, or even the exact nature, of ESG and sustainability in business are mapped out. In the series of sessions that we held the practitioners agreed that the nebulous scope of the topic made it hard to define the nature of the issues, particularly given the varied possibilities for focus on the ‘E’ (Environmental), the ‘S’ (Social) or the ‘G’ (Governance).

On 4 October 2021, an enlarged seven-member Board of the Privy Council handed down a majority judgment (4:3) in the case of Convoy Collateral Ltd v Broad Idea International Ltd.1 It confirmed that the British Virgin Islands’ (“BVI”) court has jurisdiction to grant an injunction against a non-cause of action defendant based in the BVI in support of foreign proceedings.

However, the significance of the decision has more far-reaching consequences. This was not lost on Sir Geoffrey Vos who, in giving the minority judgment, described the decision of the majority as a “ground-breaking exposition of the law of injunctions” 2and an attempt at providing a “juridical foundation for the entire law of freezing and interlocutory injunctions” 3.

With the commercial property market being crippled by the effects of the pandemic, coupled with the pre-pandemic pressures already facing retailers, ‘landlord only’ CVAs have become (and look set to continue to be) an increasingly popular method of restructuring distressed retail businesses. Conjunctively, impaired landlords have galvanised to challenge such CVAs.

In this article we explore the three high-profile retail tenant cases of 2021, providing long-awaited guidance on the legality and fairness of their use by distressed retailers.

In response to the economic disruption caused by the COVID-19 pandemic, the government rapidly introduced several large-scale schemes to support vulnerable businesses. Two of the most utilised government support measures were the Coronavirus Job Retention Scheme (‘CJRS’) and the Bounce Back Loan Scheme (‘BBLS’). Whilst these measures have provided a lifeline for many businesses, they have also facilitated an increase in fraudulent activity. This is evidenced by a reported 24% rise in fraud during the pandemic.1 Now that these measures have ended, what are the government proposals for how to hold those involved in the fraudulent exploitation of these schemes accountable?

The past 12 months have seen matters come to a head on a number of issues in relation to Cum-Ex.

Putting it in the most straightforward of terms, Cum-Ex describes the trading strategies (also known as arbitrage) that were used to obtain dividend withholding tax refunds on dividend payments. Shares were traded rapidly with (“cum”) and without (“ex”) dividend rights, so that the identity of the actual owner was concealed. An agreement would be made to sell a company stock before the dividend was paid out, but it was not delivered until after the dividend had been paid. This enabled both parties to claim tax rebates, even though that tax had only been paid once, at most. Huge volumes of rapid trading between various parties gave the impression of numerous owners, creating large profits from tax rebate claims. Losses to European treasuries attributed to Cum-Ex are, according to the most recent research, estimated to be approximately €150 billion.

But while the use of Cum-Ex was uncovered by German authorities in 2012, investigations have only gathered pace in recent years. And 2021 has been, arguably, the most significant year in terms of those investigations.

There has been more heat than light in the area of freezing injunctions in the British Virgin Islands (the “BVI”), in particular in recent years so it comes as a welcome relief that the Privy Council have cast a cold eye over the law in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 (the “Judgment”). The Judgment is, as recognised by his Lordship Sir Geoffrey Vos, “ground-breaking” (para. 221).

Although the Judgment provides definitive clarity in relation to some points of uncertainty in the BVI not all of the same points arise in relation to other Caribbean jurisdictions, such as the Cayman Islands. Nevertheless, their Lordships’ statement in the Judgment as to the purpose and scope of interim relief will undoubtedly be useful and relied upon for its general statement that the court is able to modify existing practices to provide effective remedies in changing circumstances, and its more specific, purposive, approach to the use of freezing injunctions.

The background to the Judgment is as follows: the claimant (appellant), Convoy Collateral Limited, sought a freezing injunction in the BVI in support of ongoing proceedings in Hong Kong against the defendant (second respondent), Mr Cho. The Hong Kong proceedings were capable of resulting in a judgment for damages equivalent to US$92 million. A freezing injunction was sought against both Broad Idea International Limited (“Broad Idea”) (the first respondent), a BVI company in which Mr Cho held a 50.1% stake, and Mr Cho personally. Whilst Broad Idea was a company incorporated in the BVI, Mr Cho was habitually resident in Hong Kong.

If 2020 was the wake-up call that thrust the ESG movement into mainstream society’s consciousness, then 2021 was the year in which it came to dominate the corporate and regulatory agenda in the UK and much of Europe. This has significantly increased pressures on ESG targets and results, which will inevitably lead to a greater risk of fraud.

The conventional wisdom when faced with a fraud claim is that the claim will not be subject to early termination whether by way of strike out or of summary judgment in the Claimant’s favour. The nature of fraud claims, involving serious factual findings against the Defendant make them generally inappropriate for summary determination. However, a number of decisions over the past year should serve to remind parties that even when faced with a fraud case, summary judgment and strike out are available to both Claimants and Defendants and in the appropriate case where claims or defences are inadequately pleaded or where the evidence is overwhelming, the court will be willing to bring the litigation to an early close.

In the Crown Prosecution Service v Aquila [2021] UKSC 49, the Supreme Court considered whether a company could assert its rights under a constructive trust in the face of confiscation orders obtained by the Crown Prosecution Service (“CPS”) over the proceeds of crime.

The anonymity offered by the cryptocurrency market may soon be no more, and it may not be long before regulators are knocking at your door. In addition to the DOJ and the SEC, the Joint Chiefs of Global Tax Enforcement (J5) and the Internal Revenue Service (IRS) have made it clear that they are increasingly focused on cryptocurrency entities and efforts to facilitate or enable tax evasion.

In this article, Anthony Riem and Andrew McLeod, Senior Partner and Associate at the London firm of PCB Byrne LLP, review the recent litigation in the judgment of Mrs Justice Knowles in the Family Division of the High Court in Akhmedova v Akhmedov 2021 EWHC 545, [2021] 4 WLR 88 (Fam), and the lessons that can be learned about dealing with a recalcitrant defendant in civil fraud proceedings. Such defendants seek to ignore their obligations to the Court or even actively frustrate the Court’s orders and processes. That type of litigation conduct might be seen in the short term to have benefits, in disrupting or even derailing claims against them. Yet the various powers of the English court to grant interim remedies enable it to interrogate a defendant’s claims and if necessary find other methods to compel a defendant to comply with their obligations. These present not only the ability to counteract a defendants’ efforts to defeat the court’s processes, but the opportunity to convert that litigation conduct into a successful outcome at trial.

The Supreme Court’s 2019 decision in Singularis1, the first in which a breach of Quincecare duty2 was found, brought about a rejuvenated appetite for a duty that had lain relatively dormant for decades. This year’s cases have further tested the limits and application of the duty.

This year has seen a number of cases in which the courts have had to grapple with novel issues arising in fraud disputes. This article explores three trends to have emerged: (1) limits to the Serious Fraud Office’s (SFO) extraterritorial reach; (2) the interaction between criminal restraint orders (CROs) and worldwide freezing orders (WFOs); and (3) the, perhaps unsurprising, continuing rise in cases involving cryptocurrency and crypto fraud.

Q: What would you be doing if you weren’t in this profession?

A: My answer to this question has shifted each decade I have spent in the profession. My boyhood dream was to be a Formula 1 motor racing driver. Sadly I had neither the talent nor the funding to be able to achieve that. Nowadays, I could picture myself in the Italian mountains. I’d be in the Sella Ronda, running a small family cycle/ski hotel. In the summer, I would spend my days on a bike guiding guests through spectacular mountain passes and climbs, and during the winter, I would do the same, but on skis.

Q: What would you be doing if you weren’t in this profession?

A: I started my career in international development and would have probably continued on that path had I not come across investigations. At the time, I was also considering applying to the Portuguese Foreign Ministry to pursue a career as a diplomat. But I think I would make a decent child’s party planner. I am creative and visual by nature and have a blast conceptualizing my kids’ ideas for their special day. I also do make a mean margarita so maybe an adjacent tequila bar to my party planning studio could be on the cards.

Q: What would you be doing if youweren’t in this profession?

A: I am completely obsessed with maps so were I not a lawyer, I think I would have been involvedin cartography in some way. Either that or a weather woman. I’m always hoping for a map related fraud case...but I think I might be waiting for some time!

Q: What would you be doing if you weren’t in this profession?

A: In some ways, it would be easier to say what I would not have been. Before becoming a lawyer, I worked in banking and insurance but they did not grab my attention. I think I would either have been a historian as I am fascinated by the past – a good job at my age! – and our continual failure to learn from mistakes that have been repeatedly made during the course of history or, dare I say it, a politician. However, I think any political career would have been short-lived as it appears that strategic thinking and an ability to actually answer questions are traits that do not sit comfortably with being a successful politician.

2021 has continued to present new challenges due to the global pandemic. Despite this, here at ThoughtLeaders4 we are proud to have brought the FIRE community back together in person. We are delighted to have seen so many of you at our events, from FIRE UK: Welcome Back Summit, to FIRE Middle East. Guest edited by Mary Young, Partner at Kingsley Napley, our Year in Review authors discuss some of the significant cases and trends over the past 12 months.

READ HERE!

Assessed by an illustriously experienced, senior and broad ranging panel of practitioners this is your chance to stick your head above the parapet and mark yourself as the one-to-watch. With the opportunity to attend and present your essay at our Global FIRE Starters Summit: Dublin as well as attend our FIRE International: Vilamoura event in Portugal we look forward to your submissions and to welcoming to the FIRE Starters community.  

We are delighted to publish the 6th issue of the FIRE Magazine post FIRE UK, our first in person Asset Recovery Event of 2021. In this edition our authors focus on all things Contentious Insolvency; looking at recent jurisdictional trends, funding and the use of insolvency tools in Fraud and Asset Recovery proceedings. Additionally, we are diving deeper into our Community and finding out a little bit more about what fires up our members with a series of quickfire 60 Second interviews.

Read Here!

To misquote the lyrics of the great Mungo Jerry – “In the summertime, when the weather is hot, You can stretch right up and touch the sky, When the weather’s right, You got THE FUTURE, You got THE FUTURE on your mind”.

Now that school is out for summer the minds of our contributing authors turn to the future and what this means for the Fraud and Asset Recovery Community. 

Read Here!

After the “unprecedented” year that was 2020, Q1 of 2021 has been fast and furious for both ThoughtLeaders4 FIRE and the Asset Recovery Community. As office doors creak open, wingtips start to hit the pavements and signs of life cautiously return to London, our authors review this quarter with one eye firmly fixed on the future. 

Read Here!

ThoughtLeaders4 FIRE would like to invite our readers to reflect on the tumultuous year that has been 2020. Guest edited by Mary Young, Partner at Kingsley Napley and chair of our Year in Review event on 4th December 2020, our Year in Review authors asses the hot topics of the year.

Read Here!

Deliver Value through Virtual Visibility.

Understand what is unique about the ThoughtLeaders4 community approach and how you can add Value to our Communities and be Visible through our Virtual platform.

To find out more about our VVV packages DOWNLOAD OUR BROCHURE

As the Summer of 2020 rolls on, with lockdowns relaxing in some countries and reinstating in others, travel around the world via our FIRE International issue featuring insight from practitioners in Kazakhstan, BVI, Isle of Man, UK, Singapore, Spain, Switzerland, and Hong Kong.

Read Here!

We are delighted to bring you the 'Litigation in Lockdown' edition of the FIRE Magazine, where you will get the latest insights from all professionals whose practice encompasses or touches upon Fraud, Insolvency, Recovery, Enforcement.

Read Here!

The issue of diversity and inclusion has gained increasing prominence in the media over the course of the last year, spurred on by the outrage felt by many in response to the murders of George Floyd and Sarah Everard, and the myriad accounts of discrimination still experienced in many corners of society. When I explained to my wife that I had proposed to do some extracurricular writing on the subject of diversity she (imperceptibly to outsiders) raised an eyebrow.