Adam Cloherty

Adam enjoys the arbitration side of contentious practice.

He acted (with Philip Shepherd QC) for the successful claimant in Emmott v Michael Wilson & Partners [2008] 1 Lloyd’s Rep 616 – now the leading Court of Appeal authority on the confidentiality of arbitrations in English law. He is currently acting (with Michael Black QC) for a contractor in an arbitration against a foreign government in relation to the biggest public works contract it had ever undertaken.

By definition, the arbitration side of Adam’s practice is usually highly confidential. For further illustrations of the sort of work he undertakes in this area, please contact the practice management team.

Adam has a keen interest in aviation matters. His recent experience includes:

• Acting for an airline in its successful breach of contract claim in relation to the terms on which it could use an airport: Jet2.com v Blackpool Airport [2011] EWHC 1529 (Comm). (For the successful injunction application see [2010] EWHC 3166 (Comm).)The matter is currently before the Court of Appeal.
• Acting for a lessor in its dispute with an airline over a wet lease. 
• Arresting an aircraft on behalf of a mortgagee.
• Numerous aircraft financing matters.

Adam is frequently involved in general commercial disputes, both at home and abroad.

Adam recently acted (with Philip Shepherd QC) for an airline in relation to its successful claim over terms of use of an airport: Jet2.com v Blackpool Airport Limited [2011] EWHC 1529 (Comm) (for the judgment on the successful application for an injunction down to to trial see [2010] EWHC 3166 (Comm)).

Adam recently appeared with Philip Shepherd QC for the successful claimant in Emmott v Michael Wilson & Partners [2008] 1 Lloyd’s Rep 616 – now the leading Court of Appeal authority on the confidentiality of arbitrations in English law.

He is currently acting (with John Powell QC) in relation to various disputes arising out of the collapse of an unregulated collective investment scheme (including various breaches of the FSMA legislation and rules). Adam recently acted (in the BVI) for a UAE investor in relation to a dispute over its investment in a BVI company (International Investments House v Westminster Oil Ltd & Ors BVIHCV 2008/0046) – a case in which the decision of the Eastern Caribbean Court of Appeal is awaited.

He also recently appeared for an Isle of Man trust company in its successful application in relation to solicitors improperly commencing and conducting proceedings without authority: Warner & SMP Trustees Limited v Masefield and others [2008] EWHC 1129 (Ch).

The increasingly international flavour of Adam’s work means that he is frequently involved in questions of the conflicts of laws. On the European front, he currently acts for an Italian liquidator in potentially groundbreaking litigation about the effect of the controversial ECJ decision in West Tankers which raises novel points about the scope of the public policy exception in the Judgments Regulation. In that litigation, the Commercial Court (Tomlinson J) recently rejected the contention that an appeal against registration of a foreign judgment should await the outcome of an appeal to the foreign court: see [2009] 1 Lloyd’s Rep 430.

In line with chambers’ special reputation in this area, Adam is developing an interest in art law. He recently acted (with Elspeth Talbot Rice QC) for the estate of a major artist in relation to a dispute over a very significant piece by the artist.
Other recent / ongoing work includes:

• Acting for a purchaser’s land agent in a High Court trial centring on whether it was necessary to imply a term requiring the agent to be the effective cause of a transaction and whether the agent was in fact the effective cause: Pettigrew v George Wimpey [2007] EWHC 2559.
• Acting for a major international hotel chain in relation to a number of general commercial contract disputes.
• Acting for a major fund manager in relation to a dispute over a consultant’s remuneration.
• Acting (with Philip Shepherd QC and Steven Thompson) in a multi-million dollar arbitration relating to a quasi-partnership company.

Adam’s experience also covers the full range of interim and enforcement measures: he has recent experience of obtaining freezing (Mareva) injunctions, as well as experience of search and seize (Anton Piller) orders and the arrest of aircraft. Adam has experience of the satellite disputes in major litigation: for example, he recently acted for a successful applicant for an anti-suit injunction, preventing the respondent from obtaining depositions in the US pursuant to 28 USC §1782.

Adam has wide experience of both personal and corporate insolvency generally, working for both office-holders and others. He has experience in all aspects of asset realisation – and, crucially, offers expertise in the related areas, such as property law, landlord and tenant, trusts, commercial contract, banking etc, which is frequently required in such cases.

Recent / ongoing work includes:

• Acting for a liquidator in relation to calls on unpaid shares.
• Numerous successful applications for the appointment of administrators (often in the face of substantial opposition).
• Advising a major bank in relation to the realisation of various securities held over the assets of a company in administration.
• Advising on jurisdiction and particularly the “COMI” (centre of main interests) test.
• Acting for a trustee in bankruptcy on the trial of whether certain assets were held by the bankrupt on trust for others.
• Acting for a former director defending transaction at an undervalue and preference claims brought by a liquidator and breach of fiduciary duty claims brought by the company.
• Acting for administrators in relation to various claims brought by the company against debtors and suppliers. 
• Acting for a liquidator on his application for reappointment and to delay deemed dissolution of a company.
• Advising on whether certain types of tenancy vested in a trustee in bankruptcy.
• Acting for a trustee in bankruptcy to secure an income payments order against the bankrupt.

Adam has developed special expertise in company law and associated matters both domestically and offshore.

In particular, he is very well-versed in the Companies Act 2006, having worked on this major piece of legislation at the DTI/DBERR and having subsequently advised them on its implementation. Adam was also a major contributor to Blackstone’s Guide to the Companies Act 2006 and regularly lectures and writes on corporate law.

His recent work includes:

• Acting for an exiting shareholder in a dispute relating to a number of difficult exit and valuation issues.
• Advising the Department of Trade and Industry / Department for Business Enterprise & Regulatory Reform on the implementation on the Companies Act 2006.
• Advising a major bank on its standard form documentation for a new and sophisticated secured lending product.
• Acting in relation to a number of s. 994 (unfair prejudice) petitions. Recent examples include defending a petition brought by a former director excluded from the management of the company on the grounds of conduct and acting for a minority shareholder alleging oppression by the board, including financial impropriety and an attempted forced restructuring.
• Acting for a former director defending breach of fiduciary duty claims.
• Advising on a proposed share buy-back and restructuring the deal.
• Advising a hi-tech start-up company on its articles of association and related planning.
• Acting (in the BVI) for a shareholder in relation to a shareholders’ dispute (International Investments House v Westminster Oil Ltd & Ors BVIHCV 2008/0046, now on appeal to the Eastern Caribbean Court of Appeal).
• Advising on and drafting a director’s service contract.
• Various Companies Court applications (e.g. rectification of registers etc).

His experience also includes:

• derivative actions;
• an action for specific performance of share transfer agreements;
• civil fraud claims in a corporate context;
• advisory work on corporate structuring, restructuring and asset management.

Adam is currently acting (with David Brownbill QC) for a developer in relation a multi-million dollar construction dispute in the Bahamas.  He is also acting (with Michael Black QC) for a major contractor in a dispute with an offshore government.  Adam acted for a purchaser’s land agent in Pettigrew v George Wimpey [2007] EWHC 2559, a case on the “effective cause” requirement.

He currently acts for a commercial landlord on a dilapidations claim; and he regularly undertakes both commercial and residential landlord and tenant work. Adam’s recent experience of property matters covers, amongst other things:

• Possession actions;
• Property development joint ventures and their various structures, especially the obligations (fiduciary and otherwise) of JV partners;
• Charges, including working on an injunction to prohibit the enforcement of a charge over commercial property.

Adam’s wide experience in this area far exceeds that usually found in one of his year of call and covers advisory as well as contentious trust, probate and estate work (including planning). Adam is conscious of the special role that mediation and settlement has to play in this fields and he has already developed significant experience of mediating disputes in this area – again, a feature not usually found at his level of call.  Along with David Brownbill QC and others, Adam edits the leading loose-leaf publication International Trust Laws.  He is a member of the editorial board of the Journal of International Tax, Trust and Corporate Planning. Adam is recommended for both commercial and traditional chancery by Chambers & Partners.

Recent / ongoing work includes:

• Acting (with David Brownbill QC) for a Russian beneficiary in relation to his exclusion from a major Cayman trust.
• Advising (with David Brownbill QC) Isle of Man professional trustees on a breach of trust claim in relation to alleged mis-investment of the fund.
• Advising a number of charity beneficiaries in an international estate dispute, in which Adam recently successfully resisted a jurisdiction challenge by one of the defendants: Clark v WWF and ors [2011] WTLR 961.
• Advising on the creation of a complex BVI unit trust.
• Acting (with Simon Taube QC and Marcus Staff) in a dispute against a Swiss trustee concerning a very large trust fund (in excess of $100m). The case involves complex questions of private international law, as well as Swiss and Liechtenstein law.
• Advising a beneficiaries of a Guernsey trust in relation to breach of trust claims.
• Advising a leading offshore firm on a number of BVI and Cayman trusts and structures - particularly VISTA, STAR and reserved powers trusts.
• Advising the Guernsey professional trustee of a multi-million Euro trust, in relation to a number of contentious and non-contentious matters facing the trust.
• Acting for a major law firm defending allegations of dishonest assistance in a breach of trust and unconscionable receipt of trust monies.
• Advising and acting for one branch of a family in relation to a complex and hard fought battle over a landed estate.
• Acting (with Elspeth Talbot-Rice QC) for the trustee of an investment product in asset-tracing actions across numerous jurisdictions. 
• Acting for the widow of a long marriage in her 1975 Act claim in relation to her husband’s estate, including representing the widow at a mediation which successfully concluded the dispute.
• Advising on post-death tax-planning and drafting associated documentation.
• Acting for residuary beneficiaries in a proprietary estoppel claim against the estate.
• Acting for an offshore trustee involved in matrimonial proceedings in the High Court and related issues, including EBTs (employee benefit trusts).
• Advising (with Shân Warnock-Smith QC) a beneficiary in relation to rights in an estate worth in excess of £1bn, involving proceedings across numerous jurisdictions.
• Numerous contentious probate claims (capacity, knowledge and approval, revocation, undue influence) – acting for both claimants and defendants;
• Numerous matters involving the Inheritance (Provision for Family and Dependants) Act 1975 – again, acting for both claimants and defendants.
• Advising an individual in relation to complex lifetime and testamentary estate planning matters.
• Claims for the removal and replacement of personal representatives.

Adam is frequently instructed by charities, in relation to both legacy protection and general charity law, and has developed a particular insight into the particular issues and sensitivities of the ‘third sector’.

Adam has developed wide experience in other ‘traditional chancery’ matters, including:

• variation of trusts;
• substitution of trustees;
• applications by trustees for directions;
• breach of trust / fiduciary duty and trustee negligence;
• IHT planning;
• will/trust drafting.

He has also recently worked on an action against professional executors for wrongful and wasteful administration of an estate, as well as a professional negligence action against solicitors and accountants in relation to trust tax planning.

Adam's article "Core Distinction" written with Elspeth Talbot Rice QC examining the rule in Re Hastings Bass and mistake was published in Legal Week on 30th March 2010 can be downloaded at the link.

Elspeth Talbot Rice QC and Adam have produced a podcast available at www.cpdcast.com which sets out what was the rule in Re Hastings Bass and what the decision of the Court of Appeal in Pitt v Holt has done to correct what many perceived to be an anomaly in the law. It also discusses the implications of the decision on the law of mistake and what it means for private clients and their advisors.  (Cpdcast.com provide the first podcast free.  Thereafter you (or your firm) needs to be a subscriber.)

Adam is experienced in matters involving both the FSMA and foreign regulatory regimes and can bring to such case his expertise in related areas, such as company law, insolvency and trusts, which is so often required.

He is currently involved in numerous mis-seeling claims in relation to interest rate swaps and other financial products.

He recently acted (with John Powell QC) in relation to various disputes arising out of the collapse of an unregulated collective investment scheme (Trident Trust (UK) and others v Dawsons and others). The case engages numerous aspects of the FSMA regulatory regime.

Adam currently acts (with David Brownbill QC) for an offshore trustee in a significant negligence and FSMA claim against an investment adviser and its principal.

In addition, he currently acts in a number of cases regarding the mis-selling of a film finance partnership tax deferral schemes as well as in group litigation against a firm in relation to a long-running fraud carried on by its appointed representative. He has also acts for a firm in a wide-ranging dispute with one of its appointed representatives.

On the advisory side, Adam recently advised a major bank on its standard form documentation for a new and sophisticated secured lending product. He has also advised on and helped to structure a number of offshore unit trusts and funds, as well as on the restructuring of CDO and CDS transactions.

Adam is a member of the Financial Services Lawyers Association.

In line with chambers’ expertise in this field, Adam is increasingly involved in work relating to hedge funds and other structured investment vehicles.

He has advised on, and assisted in structuring, various offshore funds.

On the contentious side of his practice, he recently acted (with Marcus Staff) for the managers and issuers of CDO and CDS transactions in relation to various claims against major international financial institutions for alleged mis-selling of securities.

Adam has recently been advising Guernsey entities on various claims relating to the fall out from the Madoff fraud.

Adam’s experience covers cross-border civil fraud matters, including asset tracing claims and actions for dishonest assistance and unconscionable receipt against former heads of state and high-profile international business-people. 

Unusually for his year of call, he is frequently instructed to make applications for freezing injunctions and other interim orders.

By way of example of recent work, Adam currently acts for a number of defrauded investors in relation to the demise of a fraudulent financial advisory firm, as well as for a foreign liquidator seeking to recover assets in a number of (offshore) jurisdictions.

Adam’s expertise in this area is principally international / offshore and he is experienced, for example, in AIA (American Institute of Architects) standard form documentation.

He currently acts (with Michael Black QC) for a major developer in a large dispute with an offshore government.

He is also instructed (with David Brownbill QC) to defend an action in the Bahamas brought by a developer against the owner of an island. The case involves, inter alia, interesting questions about the interrelation between contractual and restitutionary remedies. 

Adam if often instructed on professional negligence matters, particularly in relation to lawyers, accountants, fiduciaries and financial services professionals.

To give a flavour of his work in this field, he is currently acting:

• for a major bank against its former solicitors in relation to an alleged mortgage fraud by a business customer;
• for the trustee of an investment scheme against its former solicitors for negligent advice on the creation and operation of the scheme;
• for a trustee accused of negligent investment and mismanagement of the trust fund.