Exploring Offshore Litigation Harneys

There are limited perks to being a woman in professional services, but as summer rolls in and I'm surrounded by slightly sweaty men in wool suit trousers and long-sleeved shirts, I can't help but feel a bit smug.
"Bit" is the sum of it though. After all, women the world over are still judged on their appearance and disposition as much as their output, and dressing appropriately (in all its subjective glory) is a minefield.
I am forever on the hunt for the Holy Grail of work dresses: not too long or too short, fitted but not tight, neither busty nor mumsy but age appropriate, and with enough colour to convey "yes I'm a professional, but I'm fun too". I always know when Whistles has released a gem because it will have sold out moments before popping up on my Instagram feed.
And don't get me started on weight. A couple of years ago there was an illuminating Economist article on the economics of thinness, sadly pointing to the financial benefits to a woman of being very slender. It almost put me off my croissant. The positive perception of "thinness" clearly disadvantages the gender that grow babies, and whose capricious hormones can otherwise cause weight fluctuations.
What's more, healthy eating and regular exercise are luxuries that time-strapped professional women can often ill afford, or come at the expense of family or social time.
Body image was in the forefront of my mind following a recent wardrobe faux pas. I ran out the door one morning in a just-above-the-knee fitted shift. Only it wasn't. I realised someway into my commute that, in my 2024 iteration, the dress was closer to bottom and sausage skin-tight. To make matters worse I had a client event that evening, so hiding in my office and sidling off home wasn't an option.
Whilst no one commented on my appearance, being dressed like a salsa dancer certainly fuelled my imposter syndrome.
Expectation surrounding appearance is just one banana skin thrown in the path of professional working women; our biological differences can also disadvantage us.
Harneys recently organised a series of seminars delivered by See Her Thrive on women's health, specifically menstruation, menopause and the hormones in between, to complement a broader push towards health and wellbeing.
To paraphrase several hours of carefully thought-out training, the majority of women with regular cycles are affected by pre-menstrual syndrome, and a notable percentage by the more severe PMDD, both bringing with them behavioural and physical symptoms that can make it much harder for us to get through a typical office working day. This includes (but is by no means limited to) fatigue, concentration difficulties, anxiety, irritability, bloating and pain.
Despite being matched in severity to many mental and physical ailments which justify time off, "women's' issues" rarely attract the understanding they deserve.
The tide is, however, changing and many organisations like Harneys are increasing awareness of hurdles unique to their female employees, offering guidance on stress and nutrition, adopting policies to allow for flexible working, and no longer distinguishing between types of physical and mental wellness when it comes to sick leave. We also now have "menopause champions" in each of our offices, providing a sympathetic ear and advice on the support available.
Training and simple initiatives like this help to remove the stigma surrounding natural processes that affect half of a firm's employees. They also make commercial sense, fostering wellness, reducing absenteeism, and attracting loyalty from the people they benefit. I, for one, am certainly more productive at home on the days when I feel under the weather (and inexplicably hate everyone).
Creating an environment where women are judged in the same way and to the same standard as men will take time, but encouraging a culture of understanding is certainly a step in the right direction.
In the meantime, I will revel in my lightweight summer linens.

The Judicial and Legal Services Commission announced on 27 May 2024 new Judicial appointments to the Eastern Caribbean Supreme Court which take effect from 1 September 2024.
His Honour Judge Abbas Mithani KC has been appointed to act as High Court Judge, Commercial Division of the Eastern Caribbean Supreme Court for a period of three years with effect from 1 September 2024, and is assigned to sit in the BVI Commercial Court.
HHJ Mithani KC is a Circuit Judge of the Courts of England and Wales. He is authorised to sit as a Judge of the High Court in the Chancery and Queen's Bench Divisions of the Courts of England and Wales, including the Administrative Court.
A graduate of the University of Newcastle and the University of Keele, Judge Mithani has been closely involved with several UK universities reflecting his position as the leading authority on company and insolvency law in the UK. He is an Honorary Professor of Law at Birmingham University and Visiting Professor of Law at Newcastle and Kingston Universities.
In recognition of his substantial contribution to the development of insolvency, company and succession law in England and Wales and for his other academic work, including with UK universities, Judge Mithani was made QC, honoris causa in March 2009. He is the author of a number of published works, with a particular emphasis on company, insolvency and succession law. Notably, these include Mithani: Directors' Disqualification, the leading authority on directors' disqualification as well as Atkin's Court Forms and the Encyclopaedia of Forms and Precedents.

In the recent decision of Re C-Retail Ltd, the English High Cort ordered the disclosure of documents to assist a creditor to decide whether to support or oppose a Part 26A restructuring plan.
The landlord of Superdry plc's flagship store successfully accessed certain documents related to the struggling British fashion retailer's Part 26A restructuring plan. Superdry's subsidiary, C-Retail Ltd is proposing a restructuring plan that includes extending borrowing maturity dates, rent reductions, guarantee releases, and settling arrears and dilapidation claims.
Prudential Assurance Co Ltd, the landlord, informally requested the disclosure of 10 categories of documents. Prudential asserted that it required this additional information to decide whether to support or oppose the restructuring plan.
On 16 May, Sir Alastair Norris of the English High Court allowed C-Retail to convene 13 meetings for creditors to vote on its restructuring plan. Later that day, after considering Prudential's disclosure application, the Court ordered C-Retail to disclose certain documents to Prudential, including:
cash flow forecasts on a group basis, recognising no need for a separate forecast for C-Retail, as Superdry and C-Retail clearly 'stand and fall' together as a group; and
an unredacted report of the group's calculation of estimated recoveries for creditors, under confidentiality restrictions.
However, the Court refused disclosure of underlying calculations, assumptions, and details of the 'Target Operating Model', deeming them irrelevant.
Key takeaways from this English decision include:
That the English Court's power to order document inspection is exercised with discretion and in accordance with the "overriding objective".
In schemes of arrangements and restructuring plans, the Court considers other factors at play such as:
providing necessary information to enable creditors to make informed decisions about whether the scheme or plan is in their interests, whether losses are allocated appropriately, and whether the value created by the plan is fairly apportioned;
focusing the sanction hearing on the proposed plan in the explanatory statement, not on considering alternatives;
determining at a sanction hearing whether an honest creditor looking after its own interests as such creditor might reasonably approve the proposed plan (as opposed to whether the proposed plan is the best or the fairest); and
ensuring disclosure and inspection requests are not so burdensome as to distract from the restructuring process.
In summary, the Court's approach underscores the importance of providing sufficient information to creditors while maintaining confidentiality, and the practicality and efficiency of the restructuring process. Where seeking to obtain underlying granular data would be burdensome and disproportionate, the Court is unlikely to grant such disclosure.
Harneys does not advise on the law of England and Wales, but this judgment will be persuasive in common law jurisdictions such as the British Virgin Islands, Cayman, and Bermuda.

In the recent and important decision of Re Shandong Chenming Paper Holdings Ltd, the Hong Kong Court of Appeal confirmed that an arbitrable cross-claim against the petitioner can be a ground for dismissal of a winding-up petition.
The respondent company was incorporated in the PRC. In 2005, the petitioner (a Hong Kong company) and the company entered into a PRC-law governed joint venture agreement, which contained an arbitration clause providing for all disputes in connection with the agreement to be resolved by HKIAC arbitration in Hong Kong.
Disputes between the parties arose in 2012, leading the petitioner to commence an arbitration against the company in accordance with the joint venture agreement. The arbitral tribunal rendered an award in 2015, ordering the company to pay damages of CN¥167.86 million to the petitioner. After the company's attempt to set aside the award in the Hong Kong court failed, the petitioner served a statutory demand on the company in 2016.
The company applied for an injunction to prevent the petitioner from presenting a petition to wind it up on the grounds that, inter alia, (a) there was no sufficient connection with Hong Kong, (b) there was no reasonable possibility that a winding up order would benefit the petitioner, and (c) the court was not able to exercise jurisdiction over one or more persons in the distribution of the company's assets. This application went all the way to the Court of Final Appeal, where it was finally dismissed, resulting in the petitioner proceeding with its winding-up petition.
Subsequently in 2022, the company commenced another arbitration against the petitioner, seeking damages in relation to some funds transferred out of the joint venture company. The company said this amounted to a cross-claim against the petitioner in an amount exceeding the petition debt. In October 2022, the company applied to the Hong Kong court for the dismissal or adjournment of the winding-up proceedings pending the determination of the new arbitration on its cross-claim. The Hong Kong High Court granted the stay in 2023, with leave to appeal.
When will the Hong Kong court stay or dismiss a winding up petition?
The Court of Final Appeal, in Re Guy Kwok-hung Lam, had earlier confirmed that where a winding up petition is based on a debt under a contract with an exclusive foreign jurisdiction clause, the court will tend to dismiss or stay the petition for the issue in dispute to be determined by the agreed forum. The Court of Appeal confirmed the Guy Lam approach also applies to arbitrable disputes in Re Simplicity & Vogue Retailing (HK) Co Ltd.
In the present case, the Court of Appeal considered the applicability of the Guy Lam approach to disputed petition debts, set-off claims and cross-claims in the context of winding up petitions. In particular, while a cross-claim by the respondent company against the petitioner technically does not affect the petitioner's standing to petition for winding up as a creditor since the petition debt exists independently of the cross-claim, the settled approach of the Hong Kong court is to treat such cross-claims in the same way as disputes to the petition debt. The key question is whether the petitioner is a net creditor having an interest in the winding up: if there is any set-off claim or cross-claim exceeding the petition debt, the set-off or cross-claim should first be determined at the agreed forum (whether that is a foreign court or arbitration), and the winding up proceedings should generally be dismissed or stayed.
In dismissing the petitioner's appeal, the Court of Appeal was not persuaded by the petitioner's argument that the Guy Lam approach would create a "debt dodger's charter" because of the "built-in safety valve that allows the [approach] to be displaced where the dispute 'borders on the frivolous or abuse of process'".
To achieve a stay or dismissal, a respondent company will need to adduce proper evidence to demonstrate that there is a b

Mr Ahmed and his sister, (the Ahmeds) were directors of Hornby Street Ltd (Hornby) which manufactured clothing. In the High Court, Lifestyle Equities, (Lifestyle) successfully claimed that Hornby had infringed their trademarks. Lifestyle also successfully sued the Ahmeds personally, alleging they were jointly liable by sharing a common design with Hornby. Trademark infringement uses strict liability, which meant that there was no need for Lifestyle to prove that the Ahmeds knew of or intended the infringement.
Hornby was dissolved, and Lifestyle claimed an account of profits from the Ahmeds. The judge apportioned 10% of their salaries over the period and a loan made by Hornby to Mr Ahmed as profits for which they must account.
Both parties appealed. The Court of Appeal upheld the decision except in respect of the loan to Mr Ahmed. Both parties then appealed to the Supreme Court.
Counsel for the Ahmeds contended that directors acting in good faith and within the scope of their statutory duties could not be liable for acts of Hornby. Their conduct fell within the rule in Said v Butt[1], a servant acting in good faith within his authority causing a breach of his master's contract with a third person is not liable to the third person.
Lifestyle argued, relying on dicta of Lord Justice Slade in C Evans & Sons Ltd v Spritebrand Ltd[2] that where liability is strict, there is no need for the claimant to prove knowledge or intent by the accessories. For example, a director who instructs an employee to trespass on another's land would escape liability while the employee would be liable despite both being unaware that they were trespassing.
The Supreme Court unanimously rejected both approaches. The Ahmed's contention would create the injustice of a shop assistant being jointly and severally liable for the Company's actions while the director escaped liability, while the Lifestyle approach would make both liable despite the accessory having no knowledge of the wrong.
The Court instead created a new test for accessory liability, which is that;
a person who causes another person to do a wrongful act will only be jointly liable as an accessory for the wrong done if they have knowledge of the essential facts which make the act done wrongful.
This will provide definitive authority for practitioners concerned with accessory liability.
[1] [1920] 3 KB 497
[2] [1985] 1 WLR 317

The increasing adoption of digital assets like cryptocurrencies has highlighted the need for clarity on how insolvency laws apply in this new sector.
A recent consultation published last month from the UK Jurisdiction Taskforce looked at these issues in the context of English insolvency law. We previously reported on how jurisdictions like the BVI and Hong Kong have applied English authorities recognising digital assets as property, which relied on earlier guidance by the UKJT.
The consultation noted several high-profile exchange collapses that demonstrate the value of established insolvency frameworks for digital assets. While English courts have not directly addressed this area, the UKJT believes English insolvency concepts can sensibly apply to a wide range of asset types. The UKJT's proposed 'Legal Statement on Digital Assets and English Insolvency Law' aims to provide guidance by answering stakeholder questions. Representatives from law, insolvency and the crypto sector were invited to submit questions for consideration.
The key issues explored included whether digital assets constitute 'property' under insolvency law and form part of an insolvent estate. The statement clarifies that digital assets fall under the Insolvency Act's broad definition and so qualify as property. However, digital assets are yet to be treated as money in the UK, with the effect therefore that a statutory demand cannot be served in respect of a digital asset debt.
International jurisdiction rules determining an insolvent entity's 'centre of main interests' (COMI) location were also examined. While the location of digital assets poses challenges, the UKJT has said the focus should be on assessing commercial activities objectively seen to centre around the digital assets in questions. The UKJT noted that established principles of COMI have already been applied by the Singapore High Court over a crypto insolvency in the context of Singapore-based digital asset exchange, Zipmex.
The Statement addressed the question of whether claims to digital assets held by insolvent companies or individuals represent recoverable property rights. Proprietary claims entitle priority recovery against unsecured creditors, so resolving this distinction matters greatly. Furthermore, the interlocutory, investigatory and enforcement powers generally available to insolvency office-holders under English law are available in relation to the preservation, recovery and distribution of digital assets.
The Statement promises much-needed clarification of how long-established insolvency principles apply to the novel world of decentralised technologies. Its conclusions should boost confidence that English and common law insolvency regimes can accommodate new frontier assets coherently and fairly.
Although Harneys does not advise on the law of England and Wales, the UKJT's Statement will undoubtedly be highly influential and heavily cited in English cases dealing with digital assets in insolvency settings, which in turn are persuasive in other common law jurisdictions, including the BVI, Bermuda and the Cayman Islands.