Offshore Litigator's Perspective - Q1 2021

Welcome to our quarterly Litigation round up, which brings you Mourant's perspective on legal developments that we see in our work advising on many of the most challenging and complex cases in the offshore courts.

Spring has arrived and, happily, has brought with it the first signs of a slow return to normality. Over half of the adult populations of both the UK and US have now received their first vaccine and lockdown restrictions are gradually being eased. Hopefully this progress will continue and it won't be long before we get a chance to see each other in person again. But until then, we have another jam packed quarterly litigation round-up for you.

From the BVI, we have two updates on Privy Council judgments, one overturning a first instance finding of fact and the other restoring a buy-out order made in an Unfair Prejudice case. There is also a surprising and noteworthy judgment in which it was held that the BVI Court can only provide cross-border assistance to foreign representatives appointed in the relatively short list of countries designated under Part XIX of the Insolvency Act. If this remains the case, then we hope that this list is considered and expanded soon.

In the Cayman Islands, the enactment of the Private Funding of Legal Services Act, 2020, which will come into force on 1 May 2021, seeks to expand access to litigation funding in the Cayman Islands with the codification of the guidelines in relation to third-party funding agreements and the introduction of contingency fee agreements. This is a welcome development providing certainty for litigants seeking funding and bringing the Cayman Islands into line with competing common law jurisdictions. Appraisal action continues to occupy the Cayman Islands Grand Court. In Changyou.com the Grand Court confirmed that a member is entitled to exercise appraisal rights to determine the fair value of its shares in a short-form merger, and in Qunar Cayman Islands Limited the Grand Court determined that that the fair rate of interest in appraisal proceedings is the midpoint between the company borrowing rate and the prudent investor rate. In a different vein, an interesting decision in Stingray Trust is the latest in a line of recent case law considering the effect of the Cayman firewall provisions in the Cayman Islands Trusts Act (2021 Revision) (the Act). The Cayman Court determined that section 90 of the Act does not confer exclusive jurisdiction on the Cayman Islands courts to determine issues of validity arising under trusts governed by Cayman Islands law.

In Guernsey, we consider a helpful decision in Canargo Limited - In Liquidation ([2020] GRC064), in which the Royal Court has provided clarity and guidance regarding the principles that it will apply when considering an application by insolvency practitioners to have the proposed course of action 'blessed'. Partner Gilly Kennedy-Smith also considers two recent judgments on the construction of trust instruments. Finally, we report a landmark decision confirming the period of time allowed for appeals to be made against decisions in cases involving the Guernsey Financial Services Commission. Our team successfully represented the GFSC in that case.

If you fancy a takeaway this weekend, we've got 'Our Top Five Takeaways for Boards and Compliance Professionals' focusing on regulatory enforcements in Jersey along with the latest Webinar series on Tax Planning Challenges and Trusts in Crisis.

Finally, we were extremely proud that Mourant has won more praise, this time topping the global Powerwomen Awards list. Litigation lawyers Eleanor Morgan and Iona Mitchell are among those recognised for their expertise in the field. You can read more about that here.

You can access these updates, and more, here.