Thought Leaders – Commercial Litigation 2023 Q&A

Working with an outstanding team of bright and driven lawyers. My team’s dedication, passion and enthusiasm is a constant reminder that working in our profession is a privilege. Our varied workload means that every case presents new intellectual challenges, problems to solve and, ultimately, opportunities to learn and grow. Seeing the rewards of tackling these novel problems, identifying and implementing creative solutions for our clients, keeps me enthused and excited about commercial litigation.

Appleby is consistently instructed in the largest and most complex cases and deals in Bermuda. Whether pure commercial litigation, insolvency, restructuring or regulatory work, we have vast experience of conducting the most challenging disputes, working with and without onshore counsel teams. As the largest litigation practice in Bermuda, we have the resources to ensure that the most sophisticated clients receive the high levels of service they expect. Appleby Bermuda has a sought-after corporate team and there is a uniquely close working relationship between our corporate and litigation lawyers. As a result, our litigation lawyers have the commercial understanding to quickly get to the heart of a dispute and our corporate lawyers are forward-looking, identifying and resolving issues before they develop into disputes.

Cases in Bermuda continue to grow in complexity, including in terms of issues, size and number of jurisdictions involved. Cross-border issues have always been a complicating factor in any dispute but group corporate structures we are now exposed to on a daily basis are of a different magnitude to what we saw even 10 years ago.

Learning to adapt practices to reflect that a client may have hundreds of related entities in dozens of jurisdictions is a challenge that we continue to meet. For instance, in the restructuring space, we cannot consider Bermuda alone. We must identify the jurisdictions in which advice or action may be necessary and, where Appleby does not advise on restructuring in that jurisdiction, make connections with and brief suitably qualified practitioners. Managing a case or deal across many, diverse jurisdictions requires new ways of working. The recent proliferation of video-conferencing tools has facilitated this type of international instruction but comes with a commensurate increase in clients’ expectations, which we must ensure are met.

Not a great deal. For the first few months after Russia invaded Ukraine, we put in place new systems to identify any work that might be impacted. We have not experienced any noticeable reduction in workload.

The skills required to prepare for any dispute are the same: understanding your case, understanding what might be presented against you and fully digesting and internalising the relevant facts and issues.

The key difference in these diverse spheres you mention are softer skills of presentation and persuasion. The form of written or oral advocacy that might be appropriate for a court may be wholly inappropriate for a regulator. I always urge my team to consider their audience, whether they are drafting formal submissions, writing a letter, composing an email or making a phone-call. As a bare-minimum, a litigator must be familiar with their case and the issues; the best litigators distinguish themselves not only by what they say but how they say it.

New technologies will continue to streamline and enhance litigation, both inside and out of court. I am excited to see how these new developments will improve outcomes for clients and allow commercial litigators to spend more time on the highlights of our work (making our clients’ problems disappear) and less time dealing with administrative or technological inefficiencies in the conduct of a case.

At Appleby, we are proud to have played a significant part in training and developing Bermuda’s current generation of exceptional commercial litigators. I want to make a substantial contribution to the way Bermuda litigators practice, with a commitment to the highest service standards, courtesy to clients and opponents alike, and the achievement of outstanding results. My team leads by example but I want to continue to play a part in the continued growth of Bermuda’s reputation for excellence in litigation.