Ogier

The firm brought success for a US private equity group in the largest litigation in Guernsey

History of the practice

Ogier's roots date back some 150 years, the firm having opened its doors in Jersey in 1867. In 1998 it became the first Jersey firm to set up shop in Guernsey; while in the mid-2000s a series of subsequent mergers saw Ogier gain footholds in the Cayman Islands, the BVI and Hong Kong. In the following years, the Channel Islands outfit continued to break new ground: it became the first offshore firm to open a representative office in Tokyo in 2008; the first to open an office in mainland China in 2011; and the first to establish an office in Luxembourg in 2012. As of 2019, the firm had a team of over 550 people around the world.

Ogier has since played a part in the development of insolvency law in the Caribbean offshore centres. Its multi-disciplinary team includes lawyers who also specialise in corporate, finance, litigation and arbitration.

The firm's restructuring and insolvency work generally comes through its corporate practice, which focuses on investment funds, banking and finance and litigation. The firm is often retained to defend such clients against winding-up orders under local law.

Network

Ogier's restructuring and insolvency practitioners are spread across its main centres in Jersey, Guernsey, the BVI, the Cayman Islands, Hong Kong, London and Luxembourg.

Who uses it?

Banks, financial intermediaries, corporates and private wealth funds based offshore, as well as offshore subsidiaries of global financial groups.

Clients include Barclays, HSBC Bank and Deutsche Bank; Big Four firms Deloitte, EY and KPMG; and private equity group Carlyle Capital Corporation. In fact, most internationally known restructuring advisory firms have tapped Ogier at some point, from Alvarez & Marsal to Zolfo Cooper and Borrelli Walsh. Law firm clients include Kirkland & Ellis, Allen & Overy, DLA Piper, Linklaters, Akin Gump Strauss Hauer & Feld and Herbert Smith Freehills.

On the debtor side, Russian shipping and logistics group FESCO used the firm for advice on BVI law in a recent debt restructuring; as did Cayman-incorporated coking coal producer Mongolian Mining Corporation for Cayman law advice.

Historic track record

In 2007, Ogier advised Cayman Islands investor Absolute Capital Management on a US$1.3 billion out-of-court restructuring and defended the group in court against a creditors' winding-up petition. It was understood to be the first public fund restructuring deal following the global economic crisis.

Ogier's BVI team also advised on the £1.65 billion restructuring of General Healthcare Group, the owner of a UK private hospital chain. Finalised in 2015, the restructuring involved more than 30 BVI entities and negotiations lasting over two years.

In proceedings before the Royal Courts of Jersey and Guernsey in late 2015, an Ogier team acted for the liquidators of shipping group Huelin-Renouf. The team successfully obtained a pooling order so that the assets of group subsidiaries in each jurisdiction could be combined for distribution to creditors. This was the first successful cross-border pooling application in the Channel Islands.

The firm also acted for China Agrotech in a landmark case that saw the Cayman-registered company file insolvency proceedings in Hong Kong, and the Cayman court recognise the Hong Kong liquidators and subsequent schemes of arrangement.

Ogier represented Tianrui (International) Holding Company Limited, a substantial shareholder of China Shanshui Cement Group, in fighting a winding-up petition in the Grand Court of the Cayman Islands. The Grand Court ruled that companies cannot be wound up without shareholder approval unless otherwise provided for in their articles of association. And in another successful defence against an attempted winding-up, Ogier acted for the liquidators of investment fund Ardent Harmony in the Cayman Islands, obtaining an anti-suit injunction to prevent the fund's creditors from continuing insolvency proceedings in Barbados.

More recently, Cayman partner Rachael Reynolds led the Ogier team advising Eleanor Fisher of Kalo (now at EY) and Simon Appell of AlixPartners as the joint provisional liquidators of submersible rig operator Ocean Rig and some of its subsidiaries. The main proceedings - which played out in the Cayman Islands - represented the first successful pre-appointment centre of main interests shift to the territory and the first time that a Cayman court sanctioned schemes of arrangement promoted by foreign companies. Reynolds also provided expert evidence in the New York Chapter 15 recognition of the main proceedings and schemes of arrangement, and successfully applied for the use of a novel court-to-court protocol between the Cayman and US courts.

In another important cross-border case, Cayman partner James Heinicke led an Ogier team in the restructuring of helicopter group CHC, advising HSBC as administrative agent and collateral agent for the senior lenders. The resulting asset finance deal provided an exit credit facility worth over US$300 million to the CHC group. The group closed its bankruptcy proceedings in the US, Canada and the Cayman Islands in the first half of 2017.

The firm also advised HSBC on the granting of international security interests in respect of aircraft following the Cayman Islands' adoption of the Cape Town Convention in 2015. The transaction was the first time that the granting of first and second ranking security over aircraft was considered in the Cayman Islands in the context of security registrations under the Convention.

Recent events

Ogier's global restructuring head, Marc Kish, has been representing Bank of China and Fubon Bank as Hong Kong creditors of engineering company CW Group. The banks applied to wind up CW Group in the Cayman Islands in June 2018, only for CW itself to succeed in getting "soft touch" liquidators appointed instead a few months later. However, in January 2019 the two sides agreed to replace the provisional liquidators that CW Group had originally had appointed with members of PwC already acting as "traditional" provisional liquidators for the group in Hong Kong, at Bank of China's request. The Cayman court approved the substitution in a consent order and suspended the powers of the company's directors locally. The banks had been keen to oust CW Group's management so that PwC could investigate allegedly questionable transactions that the engineering company had made.

Ogier's BVI group, led by partner Ray Wearmouth, advised Toys "R" Us on its Chapter 11 bankruptcy, in conjunction with Kirkland & Ellis. The firm acted as Toys' BVI legal counsel, advising on matters of local law relating to its restructuring. While the toy retailer had to enter liquidation in the US, the UK and Australia after failing to find buyers, its businesses in Asia, Canada, Iberia and Central Europe were successfully sold; and the administratively insolvent group was also able to confirm a Chapter 11 plan in the US in December 2018 after reaching a settlement with secured lenders providing for partial payment of administrative claimants.

With co-counsel from Hogan Lovells, BVI partner Brian Lacy continues to represent Barclays in relation to the liquidation of Fairfield Sentry - an investment fund that was among the biggest investors in fraudster Bernie Madoff's Ponzi scheme. Lacy has also acted as BVI law expert witness for Barclays in one of two motions to dismiss claims brought by the liquidators in New York.

The same partner represented Kalo managing partners Eleanor Fisher (now at EY) and Paul Pretlove on the first application to appoint "soft-touch" provisional liquidators in the BVI. Lacy is counsel to the Kalo team, which the BVI Commercial Court appointed over six locally registered entities of Brazilian oil and gas group Constellation Oil Services in February 2019. The wider Brazilian group completed a US$1.5 billion restructuring in Brazil in December 2019. A New York court recognised the proceedings in Brazil and the BVI in separate orders under Chapter 15.

In the Channel Islands, Guernsey partner Simon Davies has been representing US private equity house The Carlyle Group and Carlyle Investment Management in defending claims worth US$1.5 billion brought by the liquidators of Guernsey affiliate Carlyle Capital Corporation (CCC). The firm says the case, which has so far included a 25-week trial, is the largest-ever piece of substantive litigation in Guernsey and has also spawned ancillary proceedings in the US, where the firm is listed as Carlyle's Guernsey counsel. In September 2017, the Royal Court of Guernsey dismissed a host of claims against senior executives of The Carlyle Group, a decision that was upheld on appeal in April 2019. The Court of Appeal also rejected claims that the investment manager breached its contractual or tortious obligations in respect of CCC, which was an investor in US mortgage-backed securities until it entered liquidation in 2008.

In terms of personnel, the firm bolstered its dispute resolution team in Jersey by hiring David Welford from Maples. Jeremy and Anna Snead also joined the firm in London from Appleby's Cayman Islands practice; while the Guernsey office promoted Bryan de Verneuil-Smith to partner.

Those changes, which all took place earlier this year, came after the firm lost partner Nigel Sanders in Jersey and partner Nicola Roberts in Hong Kong, both of whom left for other offshore firms in early 2019.