Legal Business

HSF ensures victory for regulator in major Covid-19 insurance test case 

HSF ensures victory for regulator in major Covid-19 insurance test case 

Herbert Smith Freehills  (HSF) has ensured victory for the Financial Conduct Authority (FCA) in a landmark test case intended to provide clarity on whether companies have valid business disruption insurance claims as a result of the Covid-19 pandemic.

The High Court judgment handed down this morning (15 September) by Lord Justice Flaux and Mr Justice Butcher will be a heavy blow to insurers, with tens of thousands of businesses now potentially in line for payouts on their business interruption policies. 

HSF fielded global insurance and disputes head Paul Lewis on the matter, while Mishcon de Reya teamed up with litigation funder Harbour to represent the Hiscox Action Group. Allen & Overy, Clyde & Co, DAC Beachcroft and DWF were among those to advise the eight defendant insurance companies on the case. Meanwhile, HSF instructed Colin Edelman QC of Devereux Chambers, as well as Leigh-Ann Mulcahy QC and Richard Coleman QC of Fountain Court Chambers.

While the decision provides some needed clarity, the insurance industry is expected to appeal the decision, meaning business owners will still face uncertainty. The outcome could affect up to 370,000 business interruption policies across a number of sectors.

Commenting on the decision, Christopher Woolard, interim chief executive of the FCA, said: ‘We brought the test case in order to resolve the lack of clarity and certainty that existed for many policyholders making business interruption claims and the wider market.  We are pleased that the court has substantially found in favour of the arguments we presented on the majority of the key issues. Today’s judgment is a significant step in resolving the uncertainty being faced by policyholders. We are grateful to the court for delivering the judgment quickly and the speed with which it was reached reflects well on all parties.’

HSF’s Lewis commented: ‘This is a really significant judgment. It brings guidance to how business interruption insurance wordings should operate in the context of the Covid-19 pandemic, which has had such a devastating effect on businesses across the country. The decision should bring welcome news to a significant number of policyholders who will need to read the judgment carefully and see how the principles laid down by the court apply to their particular policy wording. The speed with which the proceedings were brought is testament to the hard work of the FCA, Herbert Smith Freehills and counsel teams to bring this urgent case to the courts.’

Legal Business

Resilient HSF closes in on £1bn revenue but profits fall with increased operating costs

Resilient HSF closes in on £1bn revenue but profits fall with increased operating costs

Herbert Smith Freehills (HSF) has become the latest international firm to post resilient turnover growth in the face of the Covid-19 crisis but increased operating costs and a drop in productivity saw profits tumble in 2019/20.

Revenues at the Anglo-Australian giant increased 2.5% to £989.9m, up from £966m last year when revenues grew 4%. However, profits saw a significant decline, falling almost 8% to £283.2m while profit per equity partner dropped almost 10% to £857,000 from £949,000 last year. 

‘We’re very pleased with how resilient the firm has been,’ senior partner James Palmer told Legal Business. ‘Throughout Covid-19, the firm has performed ahead of expectations. Optimism is as high as it could be off the back of the robustness of the revenues.’ 

Recently installed CEO Justin D’Agostino (pictured) added: ‘There is a huge amount of optimism; there’s been significant growth in Asia, EMEA, and New York, all the jurisdictions where we wanted to grow. We have been pleasantly surprised at how well revenues have held up.’ 

The firmwide revenue growth came off the back of a 12% rise in the material output of EMEA while the firm’s deep Asia presence produced an 11% growth in turnover and bucked the global trend by growing profits 28%. The firm’s New York outpost also grew, with turnover up 27% while the firm’s New Law business lines were up 9%.

However, the growth in turnover were not enough to ensure a continued growth in profits, which grew a healthy 11% in 2018/19. Added Palmer: ‘Our revenue did not go up at the rate of our operating costs. If operating costs go up ahead of revenue, you have a dip. Our revenue performance was resilient but our cost base and productivity went slightly in the wrong direction.’

The firm has now fast-tracked existing measures to secure an increase in profitability, according to D’Agostino, who replaced the charismatic Mark Rigotti as CEO in the spring.  

In some ways things are completely different and in other ways it reinforces the manifesto I came in on. What it has done is accelerate things we did not think we could get done in the first 12 months. Things like changing the culture so that people care for one another in a different way and other things like financial measures that Covid-19 has been a catalyst for.’ 

Look out for a full interview with HSF CEO Justin D’Agostino coming soon on The Legal 500 Podcast 

Legal Business

Disputes perspectives: Paula Hodges QC

Disputes perspectives: Paula Hodges QC

Becoming a lawyer was suggested to me by other people. I was about 15, and doing a lot of debating and public speaking in school. People started saying to me: ‘You should think about becoming a lawyer.’ The school was supportive, and sent me to conferences and such.

It was also because of watching TV. A lot of people say Crown Court, but I liked the American ones. The media attraction got me thinking about the advocacy side.

Legal Business

Guest comment: HSF disputes chief assesses the City litigation market’s Covid-19 response

Guest comment: HSF disputes chief assesses the City litigation market’s Covid-19 response

In light of the human impact of Covid-19, the immediate concern for businesses is the health and safety of their people and clients.

In addition, the pandemic has caused unprecedented turmoil for the global economy and many businesses are struggling to cope with the huge challenges. Most are feeling the strain financially. Some are fighting for economic survival. 

Against that background, many firms need urgent legal advice to help them deal with the current crisis, including guidance on where they stand contractually. This will continue in the short to medium term but, if the global financial crisis is a reliable template, it may be several years before this leads to a surge in marquee commercial litigation. At the same time all businesses, including law firms, are having to dramatically change their ways of working, not least a move almost entirely to remote working.

The justice system, too, is adapting to this new reality. Despite the lockdown in most areas of public life, the Lord Chancellor has made clear from the outset the Government’s determination to keep the courts running. Indeed, many have been surprised by what a robust approach has been taken given the stark challenges virtual hearings will face. However, not only does the rule of law require a functioning judicial system but, as a matter of practicality, a pause in all proceedings would mean the system will be burdened with severe backlog and delay once this crisis is behind us. And, after all, justice delayed is (often) justice denied.

That is why the courts have committed to using technology at a level that only a short time ago would have been unthinkable. As the Lord Chief Justice announced on Monday (23 March), hearings requiring the physical presence of parties and their representatives should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety. For the time being, the default position is that hearings will be conducted remotely, using either telephone or video conferencing.

Guidance issued over the weekend on remote hearings in the civil courts states that it will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely, and that some witness cases will also be suitable for remote hearings. Where a remote hearing is not possible, and it is undesirable to proceed with a hearing in court, an adjournment will be necessary. Moreover, hearings may need to be adjourned for other reasons if, for example, people are unavailable due to illness.

As the guidance emphasises, remote hearings should, so far as possible, still be public hearings and the principles of open justice remain paramount – though it also says that in current exceptional circumstances, the impossibility of public access should not normally prevent a remote hearing taking place. Possible means of allowing public access include broadcasting the hearing to an open court and/or allowing journalists to log in to the remote hearing. The Civil Procedure Rules Committee has introduced a new practice direction that provides that, if such measures are not practicable, the court can direct the remote hearing to be held in private ‘where it is necessary to do so to secure the proper administration of justice’.

For documents that need to be filed at court, the court’s online ‘CE-file’ system is used for most pre-trial filings in any event. Bundles for hearings and trials have until now been largely a hard-copy affair, but electronic bundles will obviously be needed for remote hearings.

So are these provisions being implemented in practice? In my firm’s experience, yes, in some cases and a glance at the daily case list shows that our experience is not unique. Some hearings are going ahead, via Skype and other technologies, though it seems others are being adjourned (for example, bankruptcy petitions). The latest update from HMCTS this morning (26 March) states that the High Court and Court of Appeal are only covering urgent work – though I assume that is a temporary situation given indications from the senior judiciary that business should continue where possible.

In the longer term, is this likely to revolutionise the conduct of litigation in English courts? That may be going too far, but the current crisis looks to be a catalyst for the dramatically increased use and acceptance of technology in the courts as in many other areas of life, as we all adapt to the changes thrust upon us.

Damien Byrne Hill is UK and US head of dispute resolution at Herbert Smith Freehills

Click here for all our latest coverage on the on-going coronavirus crisis

Legal Business

HSF’s accounts show revenue hit £447m amid a 23% profit hike and a sharp fall in debt

HSF’s accounts show revenue hit £447m amid a 23% profit hike and a sharp fall in debt

Herbert Smith Freehills (HSF) has increased profit and turnover, its latest LLP accounts reveal, while also bolstering its borrowing capacity and significantly reducing debt.

HSF increased revenue 6% to £447m in 2018/19 as operating profit at the Anglo-Australian giant increased 23% to £127.5m. The firm has also bolstered its borrowing capacity following the implementation of a new Revolving Credit Facility put in place in April 2019.

The new facility – which is funded by a syndicate of eight banks – allows HSF to borrow a maximum of £300m, an increase of £25m on the previous facility. Its implementation coincided with debt falling 55% at the firm from £146m to £65m.

The accounts also revealed partners were required to provide extra capital, with overall partner capital increasing by £13.4m over the last financial year. The LLPs state the firm has ‘historically operated with lower levels of direct partner capital than our competitors’ with the increase intending to place HSF more in line with its peers.

Revenue growth in its non-Australian business surpasses the firm’s global performance of a 4% increase to £966m. Moreover, the profit growth comes as the firm reported an 11% increase in profits globally to £307m in July 2019, while profit per equity partner likewise grew 11%.

In a change to it LLP structure, in January HSF finalised its plans to bring its German offices into the UK LLP as a means of mitigating Brexit concerns. The move was implemented last December as City firms in Germany faced a complex regulatory environment in light of the UK’s imminent departure from the European Union.

Meanwhile, Justin D’Agostino (pictured) is primed to take over as chief executive officer at HSF, after current CEO Mark Rigotti announced he would be standing down from the role in spring of this year.

Legal Business

HSF brings German offices into UK LLP to mitigate Brexit concerns

HSF brings German offices into UK LLP to mitigate Brexit concerns

Herbert Smith Freehills (HSF) has finalised a move to absorb its German partnership into its UK LLP, as firms enter the final stages of preparations ahead of a 31 January Brexit.

The move was implemented in December last year as the firm faced a complex regulatory environment in Germany due to the UK’s imminent departure from the European Union. Without the change, HSF would have been incapable of existing as an English company domiciled in Germany.

Legal Business reported in September last year that HSF was considering the move, having obtained tax clearance on the matter.

Previously, HSF had operated as locally-managed, profit-sharing German LLPs for tax reasons. However, German corporate law only allows for the use of a UK LLP following Brexit under the condition it operates as a branch of a firm managed out of London.

UK firms in Germany are left with two options in light of Brexit: absorbing the German LLP as HSF has done or switching to a German partnership with a different liability provision. However, UK firms have historically preferred the UK LLP, with the model particularly attractive due to limiting members’ liability.

The firm has also made other preparatory moves due to Brexit, such as re-registering its Seoul office to become a branch of the Australian partnership, under the Australia-Korea free trade agreement (FTA). Previously the firm’s licence to operate in South Korea had relied upon the EU-Korea FTA. Meanwhile, lawyers in HSF’s EU jurisdictions have taken steps to obtain EU qualification if they have not already acquired it.

Last year HSF took the decision to close its Berlin office, with the firm’s associates, trainees and business services staff all being given the option to transfer to its other German offices in Frankfurt and Düsseldorf. Since launching in the country in 2013, HSF’s German headcount has grown to 140 employees.

Regarding the decision to absorb its German offices into the UK LLP, a spokesperson said the move was: ‘purely operational, and is to ensure the seamless operation of our business when the UK leaves the EU.’

For more on how firms have prepared for Brexit, read ‘Dealing with no deal – Can top law firms cope with a chaotic Brexit?

Legal Business

A record year for ethnic minorities as Clydes, Freshfields, HSF and White & Case partners make 2019 silk round

A record year for ethnic minorities as Clydes, Freshfields, HSF and White & Case partners make 2019 silk round

The number of new Queen’s Counsel (QC) has rebounded after a 2018 dip, including a record 22 appointments from ethnic minority backgrounds.

The proportion of female appointments fell, however, two percentage points to 28% of successful candidates, making up 30 of the 114 to take up silk in total. A total of 108 QCs were appointed last year.

Five solicitors from outside the UK and with practices focused on international arbitration were also appointed to QC. They include Singapore-based Sapna Jhangiani from Clyde & Co, who was one of the QCs of ethnic minority backgrounds appointed, Magic Circle partners Nigel Blackaby from Freshfields Bruckhaus Deringer in Washington and Simon Chapman from Herbert Smith Freehills in Hong Kong were appointed.

Andrew de Lotbiniere McDougall from White & Case and Jason Fry from Clifford Chance, both based in Paris, were also named as QCs.

McDougall told Legal Business: ‘I’m honoured to receive such a prestigious award. It’s particularly meaningful to me and a true honour. I just looked at the list quickly and I see some friends and people I know. It’s encouraging and a real privilege to be recognised alongside people who practice in court on a day to day basis and that our practice of international arbitration is considered at the same level.’

Fountain Court had a record year following the appointment of six new QCs, including Giles Wheeler, Edward Levey, Robin Barclay, Chloe Carpenter, Ben Lynch and Tamara Oppenheimer. Other notable chambers such as Essex Court, 4 Pump Court and 1 Crown Office Row did not appear on this year’s list.

The 30 women appointed was said to be ‘comparatively low’ by the chair of the selection panel, Sir Alex Allan: ‘I am pleased that of those women who did apply, almost 60% were successful.’

The overall number of QCs appointed this year increased by five per cent. All appointed QCs will formally become silks at a ceremony on 16 March 2020.


The full list of appointments (in alphabetical order):  

Dominic James Adamson, Temple Garden Chambers

William Andrew Allen, Outer Temple Chambers

William Siward Atkins, Maitland Chambers

Robin Nicholas John Barclay, Fountain Court Chambers

Jonathan James Barnard, Cloth Fair Chambers

Zoë Maria Marsden Barton, Wilberforce Chambers

Nigel Alexander Blackaby, Freshfields

David Anthony Blundell, Landmark Chambers

Christopher Leigh Wilson Boardman, Radcliffe Chambers

Samantha Jane Bowcock, 15 Winckley Square

Michael Antony Brady, 18 St John Street Chambers

Cameron Kennedy Duncan Brown, Red Lion Chambers

Stewart John Buckingham, Quadrant Chambers

Matthew Paul Butt, Three Raymond Building

Henry James Byam-Cook, Twenty Essex

Rebecca Jane Carew Pole, 1 Hare Court

Chloe Carpenter, Fountain Court Chambers

James Frederick Horatio Carpenter, Hailsham Chambers

Jennifer Anne Carter-Manning, 7BR

Simon James Chapman, Herbert Smith Freehills

Allison Jean Clare, Red Lion Chambers

Timothy Donald Collingwood, Serle Court

Ben Lion Cooper, Doughty Street Chambers

Gary Adam Cowen, Falcon Chambers

Nicholas John de la Poer, New Park Court

Marcus Benedict Dignum, 12 King’s Bench Walk

Louis George Doyle, Kings Chambers

Delroy Benell Duncan, Cloisters

Richard Mark Fisher, South Square

Mark Steven Ford, Lincoln House Chambers

Jason Alva Fry, Clifford Chance

Gurdeep Singh Garcha, Citadel Chambers

Peter Seamus Patrick Goatley, No5 Chambers

James Daniel Goldsmith, One Essex Court

Mark Narayan Graffius, 2 Hare Court

Andrew Timothy Grantham, Kings Chambers

Alexander Edward Hall Taylor, 4 New Square

Justin Beresford Higgo, Serle Court

Samantha Hillas, St Johns Buildings

John Leslie Hipkin, Iscoed Chambers

Jamas Rusi Hodivala, Matrix Chambers

Syed Ahmed Izharul Hossain, Temple Court

Frida Hussain, Furnival Chambers

Sapna Jhangiani, Clyde & Co

Leon Samuel Kazakos, 2 Hare Court

Martin Goddard Kingerley, 36 Family

Jennifer Claudia Knight, Two Harcourt Buildings

Adrian Mark Langdale, 7BR

Blair Patricia Leahy, Twenty Essex

Krista Lee, Keating Chambers

Edward Michael Levey, Fountain Court Chambers

Richard Ian Liddell, 4 New Square

Benjamin John Patrick Lynch, Fountain Court Chambers

Scott Edward Lyness, Landmark Chambers

Shantanu Joseph Majumdar, Radcliffe

Roger Mallalieu, 4 New Square

Aileen McColgan, 11KBW

Andrew de Lotbinière McDougall, White & Case

Gerard Patrick McMeel, Quadrant Chambers

John Mehrzad, Littleton Chambers

Julian Robert Milford, 11 KBW

Barbara Mills, 4 Paper Buildings

Peter Mitchell, 29 Bedford Row

Eleni Mitrophanous, Matrix Chambers

Anurag Mohindru, Foundry Chambers

Andrew Matthew Stephen Mold, Wilberforce Chambers

Veronica Allison Munroe, Garden Court Chambers

Charlotte Anne Newell, 5 Kings Bench Walk

Katharine Julia Newton, Old Square Chambers

Andrew James Steedsman Norris, Hogarth Chambers

Harry John William Oliver, 1 Kings Bench Walk

Ijeoma Chinyelu Omambala, Old Square Chambers

Tamara Helen Pasternak Oppenheimer, Fountain Court Chambers

Jane Elizabeth Osborne, 2 Harcourt Buildings

Deshpal Panesar, Old Square Chambers

Conall Patton, One Essex Court

Cleo Perry, 4 Paper Buildings

James Patrick Pickering, Enterprise Chambers

David Richard Pievsky, Blackstone Chambers

Marcus James Pilgerstorfer, 11 KBW

Rajesh Pillai, 3VB

Henry William Stodart Pitchers, No5 Chambers

Sarah Selena Rixar Plowden, Guildhall Chambers

Paul Nikolai Raudnitz, Hollis Whiteman

Stanley Reiz, 2 Bedford Row

Philip Geoffrey Hurry Riches, Twenty Essex

Jeremy John Richmond, Quadrant Chambers

Brendan Roche, 7 Bedford Row Chambers

Adam Julius Rosenthal, Falcon Chambers

Noah Daniel Rubins, Freshfields

Harish Salve, Blackstone Chambers

Jonathan Robert Sampson, Harcourt Chambers

Jonathan Sandiford, St Pauls Chambers

Amanda Claire Savage, 4 New Square

David Luke Scannell, Brick Court Chambers

James Jeffrey Segan, Blackstone Chambers

Katherine Emma Selway, Radcliffe Chambers

Sharif Asim Shivji, 4 Stone Buildings

Stephen John Simblet, Garden Court Chambers

Melanie Denise Simpson, 25 Bedford Row

Adam Speker, 5RB

Heidi Lorraine Stonecliffe, UK Government

Timothy James Storrie, Lincoln House Chambers

Allison Summers, Drystone Chambers

Jacqueline Louise Thomas, Spire Barristers

Andrew James Thornton, Erskine Chambers

Rebecca Louise Tuck, Old Square Chambers

Richard Daniel Wald, 39 Essex Chambers

Henry Warwick, Henderson Chambers

Simon Mark Webster, 1 Hare Court

Colin West, Brick Court

Giles Neil Laurence Wheeler, Fountain Court Chambers

Robert Brychan James Williams, Monckton Chambers

Stephen Wood, Broadway House

Legal Business

Charismatic and strategic: HSF names Asia managing partner and disputes leader D’Agostino as CEO

Charismatic and strategic: HSF names Asia managing partner and disputes leader D’Agostino as CEO

Herbert Smith Freehills (HSF) has appointed senior litigation hand and managing partner for Asia Justin D’Agostino (pictured) as its new chief executive officer (CEO), following Mark Rigotti’s decision to stand down from the role in spring of next year.

D’Agostino, 47, also spearheads the firm’s global disputes practice and US regions. Unlike the London-based Rigotti, D’Agostino will retain his home base in Asia during his tenure where he manages some of the firm’s largest clients.

‘It’s not accidental, but we picked him not for his location but as part of the globalisation of the firm,’ HSF senior partner James Palmer told Legal Business. ‘We don’t regard ourselves as having a head office. But Justin’s been accelerated into leadership early in his career, and anyone who meets him knows he is a charismatic people’s person but also a strategic person.’

The appointment by the firm’s council has been confirmed by a partnership vote, with D’Agostino now set to serve a four-year term effective from 1 May 2020. The Scottish-born lawyer first joined legacy Herbert Smith in 1998, before becoming a partner in 2007. His appointment comes as Rigotti announced in October he would stand down as CEO, citing ‘personal and professional’ reasons. Leaders at HSF typically do not exceed two terms, and Rigotti’s second stint is due to end in April 2020.

Meanwhile, an appointment from the firm’s disputes practice provides balance with corporate heavyweight Palmer acting as senior partner from London. Palmer saw off a challenge from disputes partner Mark Shillito in 2018 to be re-elected as senior partner and chair, with a vying for influence between the firm’s contentious and transactional practices considered a long-standing dynamic at the Anglo-Australian giant.

Palmer, however, stressed the tensions between the two practices are overstated: ‘the corporate and disputes thing is massively exaggerated, but of course his appointment reflects the importance of disputes to this firm. What we do is look at the strategic needs of the firm; the characteristics of what can help that; and then we look at the individuals.’

In 2016 the firm phased out its dual-CEO model, with Rigotti being elevated to the position of sole leader at the expense of former partner and head of disputes Sonya Leydecker. Rigotti has since been widely credited for winning over a sceptical City partnership following the firm’s 2012 merger and successfully integrating the two legacy firms. However, the firm’s latest financial performance proved sluggish, with revenue growing only 4% to £966m. Profits saw healthier growth, hiking 11% to £307m while profit per equity partner also grew 11% to £949,000.

While no dramatic strategic pivots are expected, Palmer stressed D’Agostino’s appointment would inevitably bring change. ‘He’s not a mini-James or a mini-Mark, he’s his own person and he’ll bring fresh thinking and you can’t change leaders without some change.’

Legal Business

New brooms – Asian coup for Bakers as Clydes, HSF and TLT announce leadership changes

New brooms – Asian coup for Bakers as Clydes, HSF and TLT announce leadership changes

Anna Cole-Bailey rounds up the latest management reshuffles at home and abroad

The autumn saw significant c-suite changes announced at Global 100 and Legal Business 100 (LB100) players, with Baker McKenzie voting in Milton Cheng as its new chair in a victory for the Asia partnership, while the figureheads of Herbert Smith Freehills (HSF), TLT and Clyde & Co will step down to pave the way for successors.

Legal Business

Rigotti to stand down in 2020 as HSF starts search for a new leader

Rigotti to stand down in 2020 as HSF starts search for a new leader

Herbert Smith Freehills (HSF) CEO Mark Rigotti is to stand down from his role next year, with the firm now priming itself to select a new leader once his term ends on 30 April.

The firm’s council will be the body appointing the new CEO, and is at the early stages of launching a selection process for Rigotti’s successor. The new incumbent will occupy the sole CEO position after the firm switched from a dual model in 2017.

Rigotti (pictured) first took the leadership mantle at HSF alongside Sonya Leydecker in 2014. The decision to appoint Rigotti as sole leader followed a consultation with the firm’s partnership following the merger between Herbert Smith and Freehills in 2012, with Leydecker apparently surprised by Rigotti’s appointment.

The leadership role at HSF typically does not exceed two terms, while Rigotti told Legal Business his decision was due to a desire to return to his native Australia for ‘personal and professional reasons’ after ‘six years and a solid run.’

In 2018, HSF senior partner James Palmer saw off a challenge from disputes partner Mark Shillito to be re-elected as senior partner and chair of the firm, receiving approval from over 50% of the partnership. Palmer’s victory against former head of disputes Shillito exacerbated a long-running rift between HSF’s transactional and contentious factions, with the upcoming CEO selection process likely to produce similar challenges.

Most recently HSF produced a sluggish financial performance despite a strong year for the corporate practice, with revenue rising a pedestrian 4% to £966m, while profits rose 11% to £307m. PEP, meanwhile, matched overall profit growth, rising to £949,000.

For more background on Rigotti’s leadership of HSF, read ‘Taking over – one leader at HSF but is the culture clash over?’ (£)