Practice

Andrew’s practice covers the full range of work done in Chambers, spanning commercial and commercial/chancery litigation, insolvency, company law, financial services and general contractual matters. He regularly appears in the Chancery Division and the Commercial Court as well as before arbitral tribunals, both on his own and being lead.

He was named as the Company/Insolvency Junior of the Year at the Chambers UK Bar Awards 2017 and is recommended by Chambers & Partners as one of the leading juniors in Chancery: Commercial (Band 1), Commercial Dispute Resolution (Band 3), Company (Band 3), Fraud: Civil (Band 4) and Restructuring/Insolvency (Band 4). He is recommended by the Legal 500 in Insolvency/Corporate Recovery (Band 3) and Banking and Finance (Band 3).

Practice areas

Commercial dispute resolution

A significant part of Andrew’s caseload is commercial litigation and advice. In recent years his cases have included claims relating to the refinancing of a Greek mobile phone company; the liquidation of a substantial repo portfolio of bank shares; the construction of a central-London hotel; technology for enhancing production of oil and gas; sovereign debt issued by the Republic of Argentina; the division of proceeds from a major Hollywood blockbuster; a joint venture in the aluminium industry and the production of parts for the motor industry. In particular:

Singularis Holdings Limited v Daiwa Capital Markets Europe Limited [2017] EWHC 257; [2017] 2 All ER (Comm) 445: Acting (with Robert Miles QC) for the successful claimant, a Cayman company, in proceedings to recover US$204 million which was wrongly paid away by the defendant, a Japanese broker. The case raised complex issues concerning the application of a bank or broker’s duty to take care when making a payment on behalf of a client and dishonest assistance.  It also considered the law relating to attribution and illegality which have developed rapidly over recent years and was one of the first cases to apply the test for illegality developed by the Supreme Court in Patel v Mirza. The proceedings, which were transferred to the Financial List, were tried before Rose J over 4 weeks in November –December 2016.  Judgment was given in the claimant’s favour for some $152 million plus interest in February 2017.  An appeal will be heard in December 2017.

Liquidators of Hellas Telecommunications (Luxembourg) II SCA v Apax Partners LLP & Ors: Acting (with Robert Miles QC) for the Apax Respondents in a claim by the liquidators of Hellas II seeking recovery of sums approaching €1 billion. The proceedings concern a €multi-billion refinancing of the Hellas telecommunications group in December 2006. The proceedings contain allegations, which the Apax Defendants vigorously deny, that the refinancing was a transaction defrauding creditors under s.423 of the Insolvency Act.   The Respondents successfully resisted the liquidators’ attempt to stay the proceedings in July 2016 and, following the addition of a further 30+ defendants in October 2016, the proceedings will come to trial in February 2018 for 6 weeks.

Other recent and ongoing instructions include:

  • Acting (with Lord Grabiner QC, Manus McMullen QC and Douglas Paine) for the lender in lengthy Commercial Court proceedings concerning whether or not the borrower was in default under the terms of the loan agreement entitling the lender to demand repayment of outstanding sums and to refuse to lend further sums. In particular the Court had to consider the proper construction of a “material adverse change” clause in the financing documentation. The lender successfully established a range of defaults by the borrower after a 9-week trial in which Andrew cross-examined factual and expert witnesses and made closing submissions on issues of quantum: Grupo Hotelero Urvasco SA v Carey Value Added SL [2013] EWHC 1039 (Comm), [2013] Bus LR D45.
  • Acting (with Robert Miles QC) for the Bank of New York Mellon, the Trustee of the sovereign debt issued by the Republic of Argentina, in relation to Argentina’s well-publicised debt default: Knighthead Master Fund LP & Ors v Bank of New York Mellon [2015] EWHC 270 (Ch) and [2014] EWHC 3662 (Ch).
  • Acting (with Robert Miles QC and alone) in relation to disputes arising from defaults in a number of the Titan Europe CMBS structures following the Eurozone economic crisis (for example Credit Suisse Asset Management LLC v Titan Europe 2006-1 Plc [2016] EWCA Civ 1293).
  • Acting for the Receivers appointed in the high profile Commercial Court litigation between JSC BTA Bank and Mukhtar Ablyazov. Andrew has represented the Receivers at numerous hearings in the Commercial Court (and Chancery Division) including the initial hearing to fix the terms of the Receivership Order and subsequent hearings to determine the nature and scope of the Receivers’ rights and obligations and to vary the Receivership Order.

A number of Andrew’s recent instructions in the field of commercial litigation involve international arbitral proceedings and are described more fully in the International Arbitration section below.

Chancery: commercial

Andrew has extensive experience in commercial/chancery litigation and advice including fraud and asset recovery. Ongoing and recent instructions include:

  • Acting for the successful claimant in Singularis Holdings Limited v Daiwa Capital Markets Europe Limited [2017] EWHC 257; [2017] 2 All ER (Comm) 445 described in the commercial dispute resolution section above.
  • Acting for one of the groups of Respondents in Liquidators of Hellas Telecommunications (Luxembourg) II SCA v Apax Partners LLP & Ors described in the commercial dispute resolution section above.
  • Acting (with Orlando Fraser QC, Richard Millett QC and James Knott) for the claimant in relation to an account of profits ordered to be provided by a defendant for his breach of fiduciary duty in respect of an opportunity to develop technology for the enhanced extraction of oil and gas. The proceedings came to trial over 5 weeks in April-May 2015 during which Andrew cross-examined the defendant’s expert witnesses and made closing submissions on issues of valuation. Judgment was given in the claimant’s favour in July 2015: Global Energy Horizons Corp v Gray [2015] EWHC 2232.       In the course of these proceedings Andrew made a successful application for third party disclosure and the production of information as to the whereabouts of certain trust assets which raised novel issues as to the scope of the Court’s jurisdiction: Global Energy Horizons Corporation v. Andrey Yakunin and Venture Investment & Yield Management LLP [2014] EWHC 2925 (Ch) (Mr Justice Sales).
  • Acting for a major Gibraltar provider of trust and fiduciary services in connection with claims for breach of fiduciary duty, breach of contract, misrepresentation arising from the sale and purchase of valuable contemporary artworks.
  • Acting for the claimant in a successful High Court claim to enforce the exit provisions in a joint venture agreement relating to a substantial Portuguese property development.
  • Acting (with John Brisby QC) for the claimant in a successful €12 million High Court fraud claim arising from the purchase of a property in the south of France.

In addition, a number of Andrew’s recent instructions concern the construction and effect of securitisation documents and the contractual documentation for other substantial capital market transactions, many of which are being resolved in the Chancery Division. These are described more fully in the Commercial Dispute Resolution and Banking & Finance sections above and below.

Insolvency & restructuring

Andrew has extensive experience of advising and acting in litigation for both office-holders and defendants in proceedings under the Insolvency Act 1986. He is currently acting for the liquidators of a Cayman Island investment fund as well as a range of other office-holders. His insolvency experience also includes long-running instructions in BCCI-related litigation, Morris v Bank of America, between 2000 and 2003. Andrew has also recently acted in substantial proceedings against the former administrators of an automotive supply company for breach of duty and in the insolvency aspects of ongoing Commercial Court proceedings arising from various failed tax mitigation schemes. He is currently instructed by the former administrators and provisional liquidators of MK Airlines Limited.  Andrew has extensive experience of advising and acting in litigation for both office-holders and defendants in proceedings under the Insolvency Act 1986.

Andrew acts (with Robert Miles QC) for the Apax Respondents in The Liquidators of Hellas Telecommunications (Luxembourg) II SCA v Apax Partners LLP & Ors, a claim by the liquidators of Hellas II seeking recovery of sums approaching €1 billion.  The proceedings concern a €multi-billion refinancing of the Hellas telecommunications group in December 2006. They contain allegations, which the Apax Defendants vigorously deny, that the refinancing was a transaction defrauding creditors under s.423 of the Insolvency Act.   The Respondents successfully resisted the liquidators’ attempt to stay the proceedings in July 2016 and, following the addition of a further 30+ defendants, the proceedings will come to trial in February 2018 for 6 weeks.

Andrew also acts for the Court-appointed receivers in two very substantial pieces of Commercial Court litigation: (a) the multi-billion Dollar claims by JSC BTA Bank against its former chairman, Mukhtar Ablyazov (JSC BTA Bank v Ablyazov), and many others; and (b) the claims arising from a fraudulent shipping scheme in Latvia (Antonio Gramsci Shipping).

Other instructions include:

  • Acting for a firm of London solicitors in respect of the validity and extent of a charge taken to secure payment of their fees. The case determined that monies held in Court could be validly charged and that such a charge would bite on such monies when paid back to subsequent office-holders: Re Peak Hotels and Resorts Ltd; Crumpler v Candey LLP [2017] EWHC 1511.
  • Advising the Receivers of The Gherkin in relation to the recent sale of the iconic London building in late 2014.
  • Acting for the liquidators of a Cayman Island investment fund in relation to claims against its former directors and investment manager.
  • Acting for the former administrators and provisional liquidators of MK Airlines Limited, a failed cargo airline which had been through numerous different insolvency procedures: MK Airlines Limited [2012] EWHC 1018, [2012] 3 All ER 781, [2013] 1 BCLC 9.
  • Acting for a liquidator in substantial proceedings against the former administrators of an automotive supply company for breach of duty.
  • Acting for the claimants in the insolvency aspects of Commercial Court proceedings arising from various failed tax mitigation schemes
  • Long-running instructions in BCCI-related litigation, Morris v Bank of America, between 2000 and 2003. These proceedings concerned serious allegations of fraud made against a major US bank.
Company law

Andrew’s company law experience includes advising on issues relating to directors’ duties, shareholders’ agreements, and financial assistance in the purchase of shares, and drafting petitions under s.994 of the Companies Act 2006 (and the equivalent provisions in Hong Kong) and the just and equitable jurisdiction of the Court (both in England and the Bahamas), and acting for and against directors in relation to breaches of duty and disqualification proceedings. Instructions include:

  • Acting (with Michael Brindle QC) for an investor in a software visualisation business.
  • Acting (with Stephen Smith QC) for a shareholder in parallel court and arbitral proceedings relating to the Russian equivalent of Facebook.
  • Acting (with Robert Miles QC) in an LCIA Arbitration raising complex issues as to the inter-relationship between the provisions of a shareholders’ agreement, the duties of directors and rules relating to the listing on a major international stock exchange. The proceedings were identified by Global Arbitration Review as one of the top 5 largest arbitrations on foot in 2014.
  • Acting for the target company in a substantial contested takeover of a property catastrophe insurer in Bermuda. The proceedings included one of the first times in which a Court had to give consideration to a hostile scheme of arrangement.Andrew is a contributor to the sections in OUP’s Annotated Companies Acts on meetings and on company secretaries, and to Butterworths Journal of International Banking and Financial Law (on the subject of reflective loss).
Banking & finance

A significant number of Andrew’s cases involve banking or finance-related issues and, in particular, the construction and effect of securitisation documents and other substantial capital market transactions. These include:

  • Singularis Holdings Limited v Daiwa Capital Markets Europe Limited [2017] EWHC 257; [2017] 2 All ER (Comm) 445.: Acting (with Robert Miles QC) for the successful claimant, a Cayman company in liquidation, in Chancery proceedings to recover US$204 million which was wrongly paid away by the defendant, a Japanese broker. The case raised complex issues concerning the application of a bank or broker’s duty to take care when making a payment on behalf of a client and dishonest assistance. It also considered the law relating to attribution and illegality which have developed rapidly over recent years and was one of the first cases to apply the test for illegality developed by the Supreme Court in Patel v Mirza. The proceedings, which were transferred to the Financial List, were tried before Rose J over 4 weeks in November –December 2016.       Judgment was given in the claimant’s favour for some $152 million plus interest in February 2017. An appeal will be heard in December 2017.
  • Credit Suisse Asset Management v Titan Europe 2006-1 Plc & Ors; v Titan Europe 2006-2 Plc & Ors; v Cornerstone Titan 2007-1 Plc & Ors; v Titan Europe 2007-2 Plc & Ors [2016] EWCA Civ 1293 on appeal from [2016] EWHC 969: Andrew acted (with Robert Miles QC at first instance and Jeremy Goldring QC in the Court of Appeal) for Elavon Financial Services, the Cash Manager, in these five sets of proceedings which concerned the interest entitlement of the holders of the Class X Note. The Cash Manager’s arguments on behalf of junior noteholders at the two hearings were accepted both at first instance and on appeal. The proceedings had an impact on over €3 billion + of Notes and were of material interest both to the CMBS market generally and particularly to the holders of other Class X Notes in different structures.
  • In the matter of Novo Banco and the ISDA Credit Derivatives Decisions Committee: Andrew acted (with Robert Miles QC) for the successful “No” camp in relation to the question of whether a Government Intervention Credit Event has taken place in respect of a Portuguese bank, Novo Banco. This issue was determined by an External Review under the ISDA Rules, the first time that such a process had ever been invoked in relation to a Credit Event in Western Europe (it having been used previously on two occasions in the US). The review considered the GI Credit Event, a concept only added to the ISDA Rules following the banking crisis in Europe in 2008-2013. The result affected more than €420 million of credit default swap transactions which had Novo Banco as a Reference Entity.
  • Knighthead Master Fund LP & Ors v Bank of New York Mellon [2015] EWHC 270 (Ch) and [2014] EWHC 3662 (Ch): Acting (with Robert Miles QC) for the Trustee of Euro-denominated bonds issued by the Republic of Argentina in proceedings concerning whether orders and other declaratory relief should be ordered against the Trustee in respect of an interest payment made to it of some €225 million.
  • Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA [2014] EWHC 2613 (QB), [2015] LLR 171: Acting for an Italian bank in proceedings concerning a reference alleged to have been given by the Bank to a gaming club in London. The proceedings concerned, amongst other things, the existence and scope of a bank’s duty of care, causation and quantum of loss. The bank established in the Court of Appeal that it owed no duty to the club. A further appeal will be heard by the Supreme Court in 2018.
  • Grupo Hotelero Urvasco SA v Carey Value Added SL [2013] EWHC 1039 (Comm), [2013] Bus LR D45: Acting (with Lord Grabiner QC, Manus McMullen QC and Douglas Paine) for the lender in lengthy Commercial Court proceedings concerning whether or not the borrower was in default under the terms of the loan agreement entitling the lender to demand repayment of outstanding sums and to refuse to lend further sums. In particular the Court had to consider the proper construction of a “material adverse change” clause in the financing documentation. The lender successfully established a range of defaults by the borrower after a 9-week trial in which Andrew cross-examined factual and expert witnesses and made closing submissions on issues of quantum.

Andrew also acted (in 2005-06) for Lloyds TSB Bank Plc in its successful defence of claims brought against it in respect of the operation of various accounts in Switzerland (Mahme Trust Reg & Ors v Lloyds TSB Bank Plc [2006] EWHC 1321) and (in 2006-2007) for a major investment bank in defending claims arising from the listing of an investment trust on the London Stock Exchange.

Fraud – civil

As described in the Commercial Litigation and Chancery/Commercial sections above, a significant number of Andrew’s instructions in these fields involve issues of fraud and asset recovery. These include claims for fraudulent misrepresentation, dishonesty by directors and others in a fiduciary position, and the misappropriation and subsequent concealment of assets.

Andrew was one of the speakers at the C5 Fraud and Asset Recovery Conference which took place in Geneva in March 2015.

Financial services

Andrew was, until recently, instructed by the Jersey Financial Services Commission in long-running proceedings relating to three substantial Eastern European property investment schemes. Andrew has also appeared in proceedings before the Disciplinary Tribunals of the SFA (as it them was) and the ICAEW. He has advised on various aspects of the Financial Services and Markets Act 2000, the London Stock Exchange Listing Rules and the Broker Membership Rules of the Cayman Islands Stock Exchange.

Offshore litigation

Andrew’s caseload includes a substantial international element. The cases described elsewhere in this CV include proceedings in Hong Kong, Jersey, the Cayman Islands, the BVI, Bermuda and the Bahamas in relation to which Andrew has given advice and drafted documentation.   Andrew has also appeared in arbitral proceedings in Switzerland and at a 3-day hearing for the taking of evidence in Geneva for use in High Court proceedings.

Alternative dispute resolution

Modern litigation requires legal advisors to understand and to use to a client’s best advantage a range of dispute resolution techniques before and during proceedings. Andrew is familiar with and has participated in a range of such techniques including meditation, structured negotiation and more informal discussions.

International arbitration

Andrew’s practice increasingly involves the resolution of commercial disputes by way of international arbitration. His recent instructions include:

  • Acting (with Michael Brindle QC) for an investor in a software visualisation business. The LCIA arbitration proceedings are in their early stages
  • Acting for a Cypriot bank in 2014 in an LCIA arbitration and in a separate Commercial court claim to recover substantial sums owing under a number of repo transactions. The arbitral proceedings settled after 4 days of the evidential hearing during which Andrew made opening submissions and cross-examined the Respondent’s factual and expert witnesses.
  • Acting (with Robert Miles QC) for one of the defendants to a $1 billion claim brought by way of LCIA arbitration in London.   The claim related to the aluminium industry and was identified by Global Arbitration Review as one of the top 5 largest arbitrations on foot in 2014.
  • Acting (with Richard Hill) for the defendant to a €250 million contractual claim brought by way of arbitration in Switzerland. The defendant was substantially successful after a 4-day evidential hearing.
  • Acting (with David Cavender QC) for the defendant to a contractual claim brought by way of LCIA arbitration in London. The proceedings, which concerned the distribution of high-end furniture settled before trial.

Additional info

Cases of interest
  • Re Peak Hotels and Resorts Ltd; Crumpler v Candey LLP [2017] EWHC 1511.
  • Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2017] EWHC 257; [2017] 2 All ER (Comm) 445.
  • Credit Suisse Asset Management LLC v Titan Europe 2006-1 Plc [2016] EWCA Civ 1293 on appeal from [2016] EWHC 969.
  • BNY Mellon Corporate Trustee Services Ltd v LBG Capital No.1 Plc [2016] UKSC 29; [2017] 1 All ER 497
  • Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA [2016] EWCA Civ 457; [2016] 1 WLR 3169 on appeal from [2014] EWHC 2613 (QB), [2015] LLR 171 – bank references; duty of care; causation; quantum of loss.
  • Hayfin Opal Luxco 3 SARL v Windermere VII CMBS Plc [2016] EWHC 782.
  • BNY Mellon Corporate Trustee Service Ltd v Taberna Europe CDO I Plc [2016] EWHC 781.
  • Knighthead Master Fund LP & Ors v Bank of New York Mellon [2015] EWHC 270 (Ch) and [2014] EWHC 3662 (Ch) – whether orders should be made against the Trustee of sovereign bonds issued by the Republic of Argentina; whether declaratory relief was appropriate and necessary.
  • Global Energy Horizons Corporation v Gray [2015] EWHC 2232.
  • Global Energy Horizons Corporation v Gray [2014] EWHC 2925 (Ch) – disclosure from third parties; trust claims.
  • US Bank Trustees Limited v Titan Europe 2007-1 (NHP) Ltd [2014] EWHC 1189 (Ch) – construction of contractual documents relating to the securitisation of a very large portfolio of nursing homes.
  • Napier Park European Credit Opportunities Fund Ltd v Harbourmaster Pro-rata CLO 2 BV [2014] EWHC 1083 (Ch) – construction of documentation governing collateralised loan obligation structure.
  • Grupo Hotelero Urvasco SA v Carey Value Added SL [2013] EWHC 1732 (Comm), [2013] Costs LR 669 – issue-based costs orders.
  • Grupo Hotelero Urvasco SA v Carey Value Added SL [2013] EWHC 1039 (Comm), [2013] Bus LR D45 – meaning of material adverse change clause; default under loan agreement for hotel construction project; valuation of losses.
  • Re MK Airlines Limited [2012] EWHC 1018, [2012] 3 All ER 781, [2013] 1 BCLC 9 – Nature and extent of the Insolvency Act, Schedule B1 paragraph 99 charge; liquidators’ powers and duties; remuneration of office-holders.
  • Milsom v Ablyazov [2011] EWHC 1846, (2012) Lloyd’s Rep FC – provision of information, privilege against self-incrimination.
  • Milsom v Ablyazov [2011] EWHC 955, (2011) Arb LR 25 – powers of Receivers, arbitration confidentiality).
  • Carey Value Added, S.L. v Grupo Urvasco, S.A. [2011] 2 All ER (Comm), [2010] BCLC 352 – summary judgment, construction of deed of indemnity and guarantee.
  • Royal & Sun Alliance Plc & Ors v Rolls-Royce Plc [2010] Lloyds Rep IR 637 – jurisdiction.
  • Re Oakland Limited [2010] EWHC (Ch) 614 – summary judgment and application for a stay in complex multi-jurisdictional insolvency proceedings.
  • Re Automold [2009] EWHC 3709 – approach to a late application to strike-out part of a substantial claim against former administrators for misfeasance.
  • Gaetano Limited v Obertor Limited [2009] EWHC 2653 (Ch) – summary judgment, specific performance of joint venture agreement, reflective loss.
  • Re Charit-Email Technology Partnership LLP [2009] EWHC 1901 (Ch), [2010] 1 BCLC 210 – permission to commence proceedings against an LLP in liquidation.
  • Chart-Email Technology Partnership LLP v Vermillion International Investments Ltd [2009] EWHC 388 – locus standi of an alleged contributory to appear on the hearing of petition.
What the directories and judges say

Chambers & Partners says:

A well-liked senior junior with a broad practice, who acts with high-profile QCs on significant pieces of litigation. As well as his technical ability and talent as an advocate, sources highlight his excellent client relations and ability to work as part of a team.” “A really clever guy, who is brilliant with clients.” “He’s all the things you’d expect of a good senior junior –  he’s clever, good in court, a good team player and a charming man.” (Commercial Chancery: 2018 Edition)

An impressive advocate.” “A really broad-based barrister with deep experience of all sorts of cases, who’s actually seen it and done it all already in many instances.” (Commercial Dispute Resolution: 2018 Edition)

“A senior junior with a strong reputation in a broad range of company-related litigation matters, who has particular skill in disputes concerning securitisation transactions and bond issues. He is also notably experienced in unfair prejudice petitions and shareholder disputes.
“He’s hard-working and practical.”
(Company: 2018 Edition)

“An expert in cases concerning dishonesty and fraudulent misrepresentation, he is proficient at tracing and recovering misappropriated assets. He approaches fraud as part of a wide-ranging commercial practice that also encompasses such areas as company and insolvency law.”
“A very strong senior junior. Very user-friendly and very bright. Clients like him a lot.”
  (Fraud: Civil: 2018 Edition)

“[Andrew] has considerable experience across the full gamut of restructuring and insolvency law. He regularly acts on behalf of an array of clients, including bondholders, issuers and corporate trustees, and routinely appears as sole counsel in high-profile cases. He is particularly well regarded for his expertise in litigation arising from securitisation transactions and other bond issues.” “He’s very user-friendly, very bright and has a really broad-based experience.” (Restructuring/Insolvency: 2018 Edition)

“A popular senior junior who has an increasingly strong reputation in commercial chancery work and counts major banks and companies among his clients. His practice covers a range of matters, and he has noteworthy experience in company and insolvency law as well as cases involving bond issues and securitisation transactions.” “Andrew de Mestre is very good indeed and he has a lovely manner about him.” “He’s a real standout person.” (Commercial Chancery: 2017 Edition)

“As well as being a top advocate, he is someone who understands the technical aspects of a case and can lead the discussions with clients on those points sensibly.” (Fraud: Civil 2017 Edition)

“He is an undoubtedly bright guy who is highly capable.” “A hard-working and sensible advocate.” (Restructuring/Insolvency: 2017 Edition)

Legal 500 says:

“He has a phenomenal memory and is good on his feet.” (Banking and Finance: 2018 Edition)

“He has strong drafting skills and excellent strategic insight.” (Insolvency: 2018 Edition)

“Ferociously bright – one of the most impressive juniors at the Bar. (Banking and Finance: 2017 Edition)

“Completely reliable, attentive and to the point.” (Insolvency: 2017 Edition)

Career & appointments

Member of the Commercial Bar Association and the Chancery Bar Association.  Andrew participates in the Chancery Bar Association CLIPS scheme (a pro bono scheme for litigants in person in the Chancery Division) and is a case-reviewer for PILARS (a pro bono scheme for insolvency cases).

Publications

Contributor to OUP’s Annotated Companies Acts.
“The rule against reflective loss and large-scale securities  frauds” [2012] BJIB&FL, 27(4), p.213-215

Education & awards

MA (Hons) Magdalene College, Cambridge. Queen Mother Scholar of Middle Temple.