Briefings

Briefing 02/05/2017 Financial Conduct Authority: Supreme Court Ruling

The FCA has won a crucial legal victory after the Supreme Court ruled that it had not wrongfully identified a former senior banker at JP Morgan blamed for the American Bank’s “London Whale” trading scandal.

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Briefing 04/01/2017 The Asset Tracing & Recovery Review: Fourth Edition

This guide contains contributions from eminent practitioners the world over, who have, on the basis of their experience, set out what they regard as critical within their own jurisdictions. Each chapter is similarly structured for ease of reference with similar headings to enable the reader to compare remedies with those in other jurisdictions, and each contributor has been subject to a strict word limit.

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Briefing 07/12/2016 Getting the Deal Through: Asset Recovery 2017

Getting the Deal Through: Asset Recovery 2017

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Briefing 06/12/2016 Fraud – A Jersey Perspective

A practical guide for legal practitioners to fraud proceedings in Jersey.

Investigating and pursuing serious and complex fraud claims is about staying ahead of the game. Most serious frauds will have an international element, whether in the substantive action or in asset recovery. It has therefore become increasingly important for fraud lawyers to have knowledge of offshore centres’ laws and procedures in freezing and tracing assets as well as possible substantive remedies.

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Briefing 24/10/2016 Jersey – Business Crime 2017 Briefing

This chapter featured in Jersey - Business Crime 2017 briefing.

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Briefing 05/10/2016 Limitation period for breach of fiduciary duty – 3 years or 10?

1. It has never been clearly decided what limitation period applies in Jersey to a claim alleging breach of fiduciary duty against a company director or other fiduciary. There have been judgments pointing in different directions. Some suggested it was 10 years; others more recently have inclined towards 3 years.

2. A new judgment of the Royal Court may point the way to a resolution. The recent judgment of the Master in CMC Holdings Ltd and another v Forster, RBC Trust Company (International) Ltd and another supports the 3 year period for non-fraudulent breaches of fiduciary duty. It does this by applying Article 57 of the Trusts (Jersey) Law 1984.

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Briefing 09/08/2016 Proposed Amendments to the Trusts (Jersey) Law 1984: A Commentary

The States of Jersey’s Chief Minister’s Department recently issued a consultation paper on a proposed 7th amendment to the Trusts (Jersey) Law 1984. The consultation paper canvassed views on whether to amend the Trusts (Jersey) Law 1984 in twelve areas in which there were perceived either to be difficulties with the current legislation or where it was thought improvements could be made.

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Briefing 28/06/2016 Who’s on the Bus? Decision of UKSC could have wide-reaching consequences

This year Baker & Partners sponsored the University of Leicester Law Review Essay Contest, with the winner Jeremy Elliott receiving a week’s placement with the firm. As part of the work he undertook with Baker & Partners, Jeremy produced the following briefing paper.

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Briefing 24/05/2016 A Question of Faith

Does Jersey law recognise an actionable duty of good faith in contracts?

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Briefing 08/04/2016 The Asset Tracing and Recovery Review – 3rd Edition

This chapter featured in The Asset Tracing and Recovery Review - 3rd Edition.

As a major offshore financial centre, the Island of Jersey has, unfortunately, all too often been one of the jurisdictions of choice for those seeking to hide assets that have been fraudulently obtained from others and to launder their ill-gotten gains. Encouragingly the Island’s regulatory, legislative and judicial bodies have in recent years adopted a robust approach to financial crime and to ensuring that, through the civil court process, victims of fraud are properly compensated for the wrong done to them.

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Briefing 06/04/2016 Dispute Resolution Review Chapter – 8th Edition

This chapter was originally published in The Dispute Resolution Review - 8th Edition.

Jersey is a self-governing British Crown Dependency. It is the largest of the Channel Islands. It is not part of the United Kingdom and is not a member of the European Union. Originally part of the Duchy of Normandy, it has owed its allegiance to the British Crown for over eight centuries. It has always maintained a separate legal system from Britain, as well as its own legislature and tax system.

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Briefing 04/04/2016 ICLG The International Comparative Legal Guide to: Business Crime 2016

This article appeared in the 2016 edition of The International Comparative Legal Guide to: Business Crime; published by Global Legal Group Ltd, London.

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Briefing 04/04/2016 The International Insolvency Review – 3rd Edition

This chapter featured in The International Insolvency Review 2015 - 3rd edition.

Jersey has two principal forms of insolvency procedure – désastre under the Bankruptcy (Désastre) (Jersey) Law 1990 and creditors’ windings up under the Companies (Jersey) Law 1991 (the Companies Law), the latter being for Jersey-registered companies.

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Briefing 04/04/2016 Getting the Deal Through: Asset Recovery

This chapter featured in Getting the Deal Through: Asset Recovery 2016.

What are the key pieces of legislation in your jurisdiction to consider in a private investigation?
In the pretrial and investigation stages the following may be important:
• Service of Process and Taking of Evidence (Jersey) Law 1960;
• Royal Court Rules 2004, which deal with court procedure, including
interlocutory applications; and
• Service of Process Rules 1994, which include rules about the circum-
stances in which process can be e ected upon defendants outside Jersey.

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Briefing 23/03/2016 Private Prosecution In Jersey – The Way Forward?

It has been reported in the United Kingdom that public resources are so stretched that police officers have attended the scenes of crime by bus. There have been repeated press reports of the reductions in the number of investigating police offices. There have been suggestions that police forces should be sponsored by commercial organizations.

Within that context it is unsurprising that in the United Kingdom it appears that there is no expertise, no will and no resources to deal with certain crimes.

Those crimes are frequently financial crimes, where the sheer volumes of paper and electronic material, and the layers of complexity can seem overwhelming to all bar the most battle hardened investigatory fraud lawyers. Why would public sector decision makers set any store on tackling such cases in circumstances where there are continuing cuts to the resources necessary to do the job even to a minimum acceptable standard?

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Briefing 12/02/2016 Declaratory relief in the context of regulatory actions

In a recent judgment the Royal Court has provided helpful guidance to local businesses operating under “lock down” directions issued by the Jersey Financial Services Commission (“the Commission”) as to what constitutes a payment in the ordinary course of business. The Court also considered the extent of its jurisdiction to grant declaratory relief.

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Briefing 27/01/2016 Angelmist Properties Limited v Leonard and Others

This judgment of the English High Court deals with the duty of care that a director of an English company owes to the company. It emphasises that directors should not take into account the interests of others, including shareholders and other parties.

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Briefing 16/12/2015 Shades of the Prison-House; non-payment of Judgment Debts

In the time of Dickens, there were three prominent debtor's prisons in London: The Fleet, where Mr. Pickwick was held, The King's Bench, where Micawber was an inmate, and the Marshalsea, where Dickens' father was imprisoned, as well as the fictional William Dorrit (in Little Dorrit). Typically, a debtor was accused by the person to whom money was owed. The accused was held several days in a sponging house, such as Coavin's in Bleak House or Moss's, in which Rawdon Crawley is held in Thackeray's Vanity Fair. If, in a few days, the money could not be raised, the debtor was imprisoned until the debt was paid. Colourful history yes, but imprisonment for debt is surely now confined to the pages of Victorian novels? The Jersey answer to that question is….almost.

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Briefing 30/11/2015 Baker & Partners Secure Jurisdiction Victory in Application to Remove a Trustee

In a recent decision of the Jersey Royal Court In the Matter of the V & W Trusts, Baker & Partners acting for a beneficiary, have secured a significant early victory in a legal battle for the court ordered removal of a Panamanian trustee of significant Jersey real estate.

In a significant intervention in the administration of what, on their face, appeared to be foreign law trusts, administered from Panama, with a non-resident trustee, the Royal Court has accepted jurisdiction to hear an urgent application to remove and replace the Panamanian corporate trustee, with a regulated Jersey trustee; G.B. Trustees Limited (an affiliate of Garfield-Bennett Trust Company).

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Briefing 20/11/2015 Equal Marriage, Equal Divorce?

On 23rd September 2015, The States voted to legislate to enable same-sex marriage by January 2017 at the latest. However, The States has used the opportunity of extending marriage to include same-sex couples to also consider the issues around divorce and the dissolution of marriage (both heterosexual and same-sex) generally.

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Briefing 20/11/2015 The International Comparative Legal Guide To Corporate Recovery & Insolvency 2015

Ed Shorrock and William Redgrave have contributed the Jersey-specific chapter to 2015 Edition of The International Insolvency Review.

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Briefing 20/11/2015 Crédit Agricole V Papadimitiou

This Privy Council decision goes to the heart of what financial institutions should know about the commercial rationale behind transactions and the source of customers’ funds.

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Briefing 20/11/2015 Working For The Competiton

Signing a contract of employment with a new employer is usually a positive event in a person’s career. Whatever the profession it signifies new prospects and an opportunity to take a step up the career ladder. Many new employees will be looking forward to the new challenges that their new job provides as well as thinking about what they can bring to the business that they’re about to join.

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Briefing 20/11/2015 Open Season v Shivers of Fear: Wyatt v Vince

You are divorced. You thought it was over and then you hear the names “Wyatt” and “Vince”; does a shiver run down your back or do you throw a party and go to see a family lawyer? According to the popular press coverage it depends on whether you are the party with money or not. Is this right?

In this briefing, Kirsty Thomas explores the implications for divorcing parties.

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Briefing 20/11/2015 What’s More Important: Business Or Home?

When a marriage breaks down and one party issues divorce proceedings it can be a difficult time for everybody involved. Once the issue of the financial settlement is reached things usually become more fraught.

A thorny issue which some believe is raising its head again is whether the contribution made by the “breadwinner” (usually the husband) is more important than that made by the homemaker in cases where the assets are large and capable of meeting the needs of both husband and wife.

Kirsty Thomas explores the issues facing divorcing parties in depth in this article.

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Briefing 20/11/2015 Dishonest Assistance: Guidance Note

This Guidance Note, produced by Advocate William Redgrave and James Sheedy is about dishonest assistance and will explore the legal position of those in the Island’s professional trust and fiduciary services businesses who have carried out client instructions without first considering or investigating the legitimacy of their client’s activities. It will use practical examples to illustrate what can go wrong, particularly centering on the recent decision of Jersey’s Royal Court in Nolan v Minerva Trust, and will suggest how businesses should act to avoid the risk of being held to have dishonestly assisted a client in a breach of trust or fiduciary duty.

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Briefing 20/11/2015 The Dispute Resolution Review- 7th Edition

Advocates William Redgrave and Charlie Sorensen have contributed the Jersey-specific chapter to 7th Edition of The Dispute Resolution Review, published by Law Business Research and edited by Jonathan Cotton of Slaughter & May, London.

The Dispute Resolution Review is an excellent resource, written by leading practitioners across the globe. It provides an easily accessible guide to the key aspects of each jurisdiction’s dispute resolution rules and practice, and developments over the past 12 months. It is written with both in-house and private legal practitioners in mind, as well as the large number of other professionals and businesspeople whose working lives bring them into contact with disputes in jurisdictions around the world.

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Briefing 20/11/2015 Retirement, Replacement & Removal Of Trustees: Guidance Note

This Guidance Note, produced by James Sheedy, will cover a host of practical issues for trustees seeking to step down from office and the practical implications of some recent court decisions on applications to remove a trustee. It will also cover legal issues for both outgoing and incoming trustees and their beneficiaries; such as knowing when a trustee should jump before being pushed if it is experiencing friction with beneficiaries, practical points to consider when facing a court application for removal – parallel claims for breach of trust, conflicts of interest, costs, and the importance of tying up loose ends – and also trickier points in negotiating and structuring appropriate indemnities.

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Briefing 20/11/2015 Protecting Yourself From International Tax Investigations

On 17 March 2015, BBC Jersey reported that HSBC Bank is closing all accounts on Jersey belonging to customers living in the United Kingdom. This is part of the bank's remediation exercise which comes amid pressure to ensure that offshore accounts cannot be used to hide money from the UK tax authorities.

This action is only the most recent and visible example of the increasing political pressure being placed on financial institutions and their advisers. The distinction between tax avoidance, which is lawful, and tax evasion, which is unlawful and criminal, is apparently being quickly forgotten. Politicians no longer speak of the criminality of evasion but the immorality of avoiding tax. It would be foolish to ignore that shift in language.

Individuals and institutions need to take proper steps to protect themselves and to make sure they are not vulnerable to international tax investigations. They need to have dealt with historic relationships and also to have proper processes in place for new clients and ongoing relationships.

In this briefing Stephen Baker, Senior Partner of Baker & Partners, examines the practical steps that all financial institutions and their advisers should take if the are, or may be in the future, the subject of an international tax investigation.

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Briefing 20/11/2015 Who Owns A Bribe? (Published In The Jersey & Guernsey Law Review)

Secret commissions and bribes have unfortunately become an increasingly common feature of doing
business in certain parts of the world. The Jersey and UK courts have now provided the answer to the vexing
question of who owns a bribe. Once established, ownership gives rise to an ability to trace the proceeds of a
bribe or secret commission into the hands of a third party. That calls for an understanding of the different
approaches to tracing, particularly when Jersey’s differs from that adopted in the UK.

This in-depth analysis of the Supreme Court's judgment in FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45 was written by Baker & Partners Associate, James Sheedy, and first published in October 2014 in the Jersey & Guernsey Law Review.

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Briefing 20/11/2015 The Asset Tracing And Recovery Review – 2nd Edition, Jersey Chapter

Advocate Stephen Baker has again contributed the Jersey-specific chapter to The Asset Tracing And Recovery Review, published by Law Business Research and edited by Robert Hunter of Herbert Smith Freehills LLP.

The guide contains contributions from eminent practitioners the world over, who have, on the basis of their experience, set out what they regard as critical within their own jurisdictions. Each chapter is similarly structured for ease of reference with similar headings to enable the reader to compare remedies with those in other jurisdictions.

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Briefing 20/11/2015 The International Insolvency Review – 2nd Edition, Jersey Chapter

The first Jersey-specific chapter to The International Insolvency Review

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Briefing 20/11/2015 Getting The Deal Through: Asset Recovery 2015

This article was first published in Getting the Deal Through: Asset Recovery 2015

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Briefing 20/11/2015 Unquestioning Loyalty To Your Client Can Make You Dishonest, If Your Client Is A Fraudster

The recent judgment of the Royal Court of Jersey in Nolan and others v Minerva Trust Company and others [2014] JRC078A is a wake-up call to offshore fiduciaries and corporate service providers: slavish loyalty to client requests can be a very costly mistake, if your client turns out to be a fraudster and the Court decides that you helped him when you had reason to suspect that he was up to no good. For doing his bidding you could be branded dishonest, and ordered to compensate the victims for their losses out of your own funds.

The implications of this judgment are relevant to everyone working in the trusts or financial services industry and the following briefing has been produced by Advocate William Redgrave.

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Briefing 20/11/2015 The International Comparative Legal Guide To Business Crime 2015

The 5th Edition of the Business Crime Guide

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Briefing 20/11/2015 Who Owns A Bribe? Supreme Court Mankarious Decision Where Jersey Leads

The available remedies in bribes and secret commission cases.

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Briefing 20/11/2015 The International Comparative Legal Guide To Corporate Recovery & Insolvency 2014

The 8th Edition of the Corporate Recovery & Insolvency Guide

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Briefing 20/11/2015 Blurred Lines: The Shifting Position Between Lawful Tax Avoidance & Unlawful Tax Evasion

Jersey financial services businesses need to be strategically aware of the changing boundaries.

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Briefing 20/11/2015 Eagerly Anticipated Trial Compromised On Day One – Dalemont Limited V Senatorov

Two central questions lay at the heart of the trial in Dalemont.

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Briefing 20/11/2015 Jersey Court Endorses Proprietary Claim To Proceeds Of Corruption

The Jersey Court has made a finding regarding the basis upon which a institution holds money.

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Briefing 20/11/2015 Keeping Mum – Full And Frank Disclosure In Matrimonial Proceedings

Whether you are a husband or a wife in such a position, what can you do?

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Briefing 20/11/2015 Court Clarifies Creditors’ Rights In Bankruptcy

Court considered a number of objections made by the debtor and creditors to the adjudication.

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Briefing 20/11/2015 ABC V The Minister For Health & Social Services

A parent does not have a private cause of action arising from a breach of the Children (Jersey) Law

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Briefing 20/11/2015 Jersey Foundations – Fit For Purpose?

A Jersey Foundation was found to have committed contempt of court.

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Briefing 20/11/2015 Property Rights For Unmarried Cohabitants

Courts in England & Wales may determine the beneficial interests of unmarried couples

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Briefing 20/11/2015 Fraud – A Jersey Perspective

Investigating and prosecuting serious and complex fraud is about staying ahead of the game.

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Briefing 20/11/2015 The Bribery Act 2010 – It’s Provisions and Implications

The UK's new Bribery Act came into force on 1 July 2011.

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Briefing 20/11/2015 JFSC Concedes Appeal Against Regulatory Action, Following Court Intervention

Appeal by Mr Leslie-Smith against a decision by the Commission to issue a Direction under Article 23

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Briefing 20/11/2015 Pre-Nuptial Agreements “All That I Have I Share With You – Subject To Contract”

A Pre-Nuptial Agreement was the subject of the recent English Supreme Court decision

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Briefing 20/11/2015 Extradition Update

Application by the Australian authorities to have Philip De Figueiredo extradited to Australia

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Briefing 20/11/2015 The New Test For Setting Aside Trusts, When A Party Is Mistaken

An application to set aside a mistaken disposition into trust by a settlor

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Briefing 20/11/2015 Winding Up Fiduciaries – Considering The Clients

Proceedings in order to help the underlying clients of a failing financial services business.

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Briefing 20/11/2015 Saisies Judiciaires: The Lifting of Freezing Orders

Ed Shorrock analyses a recent application by a defendant to discharge a freezing order.

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Briefing 20/11/2015 Divorcing Beneficiaries – A Practical Guide For Trustees

Joanna Woods considers three key matters; the provision of information, submission.

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Briefing 20/11/2015 Controlling Minds: Whose Knowledge Counts ?

Federal Republic of Brazil and Another v Durant International Corporation and Another [2012] JRC 211

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