Donald Lilly

Areas of Practice

Litigation and advice in the fields of corporate insolvency, offshore litigation, company law and financial services.

Donald is described as a "real rising star" under the "Insolvency" category of the 2011 Legal 500.

Cases of Particular Interest

• Re the B Trusts (Supreme Court of Bermuda): advising (with Robert Ham QC) a Bermudian trust company in relation to its category (2) blessing summons.
• Re a Company (In Arbitration): represented (with Claire Blanchard QC) the minority shareholders in a corporate member of a Lloyd's syndicate in relation to their claim under §994 of the Companies Act 2006.
• Serious Organised Crime Agency v Perry [2011] EWCA Civ 578 (with Tony Peto QC): appeared in the Court of Appeal resisting an application to set aside a worldwide property freezing order; on appeal to the Supreme Court listed for March 2012.
• Europeans Ltd v Revenue and Customs Commissioners [2011] EWHC 948 (Ch): appeared on behalf of a director defending himself against a third party costs award in the context of findings of MTIC fraud against the company by the VAT and Duties Tribunal.
• Re Oasis Holdings Limited Mithani Bulletin 44: appeared (with Patrick Lawrence QC) on behalf of a director resisting an application by the Official Receiver for permission to rely upon additional allegations of unfitness (the entire claim was ultimately abandoned by the OR).
• Re a Company [2010] EWHC 3814 (Ch): appeared on behalf of a debtor company seeking to restrain advertisement of a winding up petition on the basis of CVA proposals and the quia timet jurisdiction.
• Oak Investment Partners XII, Limited Partnership v Martin Boughtwood [2009] 1 BCLC 453: represented (with Christopher Harrison) a US-based investment partnership for the trial of its petition under §994 of the Companies Act.

Details of Practice

Private International Law and Conflicts

A large proportion of Donald's practice involves an international aspect:

• Re a Debtor (640 of 2010): appeared in the Chancery Division on behalf of a German insolvency practitioner (of a €6 million estate in bankruptcy) seeking recognition under Art. 25 of the European Insolvency Regulation of a German email redirection order made by the Munich District Court.
• Re Autogas (Europe) Limited: appeared in the Chancery Division on behalf of an Isle of Man accountant resisting the jurisdiction of the English court to make an order against him under §236 of the Insolvency Act 1986.
• The Club Class Petitions: appeared in the Chancery Division on behalf of companies incorporated in the Seychelles contesting the jurisdiction of the English court to making a public interest winding up order against them.
• Re Mehmet Armutcu: appeared in the Chancery Division on behalf of a German Sparkasse bank seeking to annul an English bankruptcy order on the grounds the debtor's centre of main interest was not in England at the relevant time.
• SOCA v Perry: This line of cases has seen Donald appear in the Court of Appeal twice. The applications relate to the extra-territorial enforceability of disclosure orders (being led by Anthony Peto QC and Tom Weisselberg) and whether there is jurisdiction to grant a world-wide property freezing order under the Proceeds of Crime Act 2002 (being led by Anthony Peto QC). Donald is instructed for the Supreme Court hearing of this case (being led by James Eadie QC and Tom Weisselberg) listed for March 2012.
• Re Ocean Survey Company Limited: advised (with Jonathan Crow QC) a Bermudian trust company on the merits of contesting the jurisdiction of the English courts in relation to disputes over a £2 billion family trust.
• Re a Company: advised an English company on the enforceability of a share purchase agreement on the choice of law for that agreement and the application of "mandatory rules" under §2(2) of the Contracts (Applicable Law) Act 1990 and Art. 7(1) of the Rome Convention.
• Re a Pension Fund: advised a large UK pension provider on the choice of law and correct forum for a restitutionary claim against a US resident in receipt of mistaken pension over-payments.

Corporate Insolvency

In addition to the corporate insolvency cases noted above that have an international dimension, Donald regularly appears in the Chancery Division for English corporate insolvency matters:

• Re Oasis Holdings Ltd: appeared (with Patrick Lawrence QC) on behalf of a defendant director resisting the Official Receiver adding additional allegations to the disqualification claim made against him.
• One Step Beyond v Singla: appeared in the Chancery Division on behalf of a creditor in an application under §212 of the Insolvency Act 1986 against an English liquidator in the context of the extra-territorial enforcement of an insolvent company's intellectual property rights. Appearances included an application for an interim mandatory injunction.
• Wood v Kirankumar Mistry: appeared in the Chancery Division on behalf of a director defending the first disqualification proceedings brought by a liquidator.
• Re European Home Retail plc: representing (led by Malcolm Davis-White QC and Anna Markham) the Secretary of State in its recently commenced claim for a disqualification order against the directors of the Farepak Hampers group of companies (listed for trial in May 2012).
  

His advisory work spans all aspects of corporate insolvency with a particular focus upon cross-border insolvency issues and the application of the EC Insolvency Regulation. He has also advised companies on the availability of insolvency set-off and provided expert opinions to the liquidators on whether proofs of debt should be admitted or rejected.

Offshore

Off-shore work, in particular trusts litigation, is increasingly becoming a significant proportion of Donald's practice:

• Re the M Trust: advising (with Jonathan Crow QC) a wealthy beneficiary of an offshore family trust (holding assets valued in excess of $30 million) on disclosure under Schmidt v Rosewood.
• Re the B Trusts: providing expert evidence (with Robert Ham QC) for a Bermudian trust company on the Bartlett v Barclays Bank duties it owes in relation to its controlling interest in substantial group of companies.
• Re a Company: drafting (with John Brisby QC) pleadings on behalf of investors, who have suffered losses arising out of the Bernard Madoff Ponsi scheme, against their investment advisors.
• Re Ocean Survey Company Limited: advising (with Jonathan Crow QC) a Bermudian trust company on the merits of contesting the jurisdiction of the English courts.
• Re a Company: represented (led by John Brisby QC and Andrew de Mestre) the petitioners seeking to wind up a company incorporated in the Bahamas on just and equitable grounds.
• Re a Nevis Trust: represented (with Robert Hildyard QC, as he then was, and Orlando Fraser) a former executive of a large Russian shipping company in relation to disputes over the ownership of funds settled within a trust situated in St Christopher and Nevis. That case involved the successful application for a freezing order and appointment of a receiver in Nevis.

Company

In the field of company law, Donald's practice focuses upon minority shareholder rights, both §994 petitions and derivative claims.

• Re a Company (In Arbitration): appeared (being led by Claire Blanchard QC) on behalf of minority shareholders in a corporate member of a Lloyd's syndicate in relation to their claim under §994 of the Companies Act 2006.
• Oak v Boughtwood: represented (with Christopher Harrison) a US-based investment partnership for the trial of its petition under §994 of the Companies Act.
• Re Kerrington Ltd: represents (with George Bompas QC) the defendant directors in relation to a derivative action commenced against them.

Donald has also settled and continues to act in a number of §994 petitions and derivative and company claims against directors. He has appeared on behalf of companies seeking an order in pursuance of the Companies Cross-Border Merger Regulations 2007.

Financial Services

Donald has advised on a number aspects of financial services regulation. Most notably:

• Re a Pension Fund: advised (with John Brisby QC and Jonathan Brettler) a large UK pension provider in relation to a high-profile pension dispute involving the sale of asset and mortgage backed securities. The advice encompassed the scope of the FSA Principles and Guidelines (in particular "TCF" principles) and related professional indemnity insurance issues.
• Re Silver Planet: advised and drafted the defence for a Jersey financial advice company and its director in relation to proceedings brought in pursuance of §19 and §21 of the Financial Services and Markets Act 2000.

Donald has also advised upon the impact of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 and the consequences of "regulated activity" upon the distribution of assets in a liquidation and payment of commission upon entering a regulated mortgage.

Academic

MA and BCL, Wadham College, Oxford (Scholar)

Linklaters Prize in EC Competition Law (MA)
Monckton Prize in Competition Law (BCL)
Astbury Scholar (Middle Temple)
Harmsworth Entrance Exhibitioner (Middle Temple)

Professional

Member of the Chancery Bar Association and COMBAR.

Notes

Before joining 4 Stone Buildings, Donald spent a year working with an international property development company based in Canada.