Top takeaways from the 2023 Mourant and South Square Litigation Forum

We hosted our annual Mourant and South Square Litigation Forum last month (October 2023) in London, where members of the Mourant Litigation teams from Cayman Islands and BVI were joined by South Square, Kirkland and Ellis LLP, and Grant Thorton to share insights on the latest topics and trends in the litigation, insolvency and restructuring landscape.

In case you missed the event, here are our top takeaway points from the topics discussed.

The divergence in the approach to restructuring

We heard from Glen Davis KC, Barrister at South Square, Nicholas Fox, Partner at Mourant, Clara Johnson, Barrister at South Square, Kate Stephenson, Partner at Kirkland and Ellis and Julie Nettleton, Director at Grant Thornton UK who discussed recent developments in the UK, the Cayman Islands, the BVI and Hong Kong, focussing on the differing approaches to restructuring across these jurisdictions.

Restructuring in England is achieved by way of schemes of arrangement or the relatively new restructuring plan, as there is no stay or moratorium and neither features a provisional liquidator or a restructuring officer like the Cayman Islands or BVI. The BVI Commercial Court endorsed “light touch” provisional liquidations in December 2018 to facilitate cross-border restructuring.

Cayman has gone one step further.  With effect from 31 August 2022, the Cayman Islands has introduced, in legislation, the concept of a Court-appointed Restructuring Officer. Under the Amendment Act, the filing of a petition for the appointment of a restructuring officer triggers an automatic global moratorium on claims against the company, giving it the opportunity to seek to implement a restructuring.

The Hong Kong Court has chosen not to follow the same concept as the Cayman Islands with regards to appointing a Court-appointed Restructuring Officer. The Hong Kong Court remains strong on its stance that the statutory power to appoint a provisional liquidator may not be exercised for the sole purpose of restructuring a company's debt.   

Life at the bar vs on the bench

We heard from Mr Justice Zacaroli, Judge of the High Court of England and Wales, Chancery Division, who began the conversation with a comparison of the differences between life at the Bar and life on the Bench, outlining the different pressures that come from deciding a case as opposed to preparing it.

He also offered his thoughts on how advocates can best assist judges, stressing that structure, clarity and concision will help advocates to ensure their points land with busy judges.  

The importance of pro bono work

Mr Justice Zacaroli also stressed the importance of pro bono work either through Advocate, the Bar's national pro bono charity, or through schemes such is the Chancery Bar Litigant in Person Support Scheme (CLIPS) for the operation of the Chancery Division.

On the question of diversity at the Bench and the Bar, he highlighted that there is broader work that can be done to make a wider pool of the population see that a career in the legal profession can be possible for them.

The state of the British government

Philip Collins was a speech writer for former British Prime Minister, Tony Blair, and is currently a political columnist for The Evening Standard and The Times. In his keynote address at the conference, he drew on his experience as a speechwriter and public communications expert to analyse the state of the British Conservative and Labour Parties as they head into the next election. He outlined the factors that indicate a likely change in power and discussed how each party could best position itself in the months to come.

Of note was his observation that the gateway for some traditional Labour voters to vote for Conservative candidates was their support for Brexit, and that it was a mistake for the Conservative leadership to 'get Brexit done' as this takes away that reason for voting Conservative! 

This article features contributions from Angus Groom and Charlotte Ward, pupils at South Square.