Richard Fisher KC

Richard has extensive experience of both contentious and non-contentious corporate insolvency work. Current and prior instructions include leading the team advising Bulb Energy Ltd, Three Arrows Ltd (BVI crypto asset liquidation), Arcadia and its administrators, defending the Pizza Express and YO! Sushi CVAs, acting for Debenhams (and then its administrators), and advising and acting for various banks and hedge-funds involved in the Lehman Waterfall I and II, and LBHI2, proceedings. Richard has a particular specialism in domestic and international corporate reconstructions (involving the use of schemes of arrangement, CVAs and restructuring plans), and the application of the EC Regulation on Insolvency Proceedings/the Uncitral Model Law (including Re OJSC International Bank of Azerbaijan).

Other notable matters in which Richard has been instructed include Ambatovy, House of Fraser, MF Global, the Motlyev bankruptcy, Four Seasons Group, the Noble Group, Codere SA, the IMO/Bluebrook Group, the Federal Mogul Group, the Cattles Group and the Telecolumbus Group, and the Co-Operative Bank. Richard acts both for companies and creditors (supporting and opposing/challenging restructurings).

Reported cases include:

• Re LBHI2 (No. 2) [2024] 2 BCLC 396; further directions trial regarding correct interpretation of subordination provisions and applicable parts of the insolvency rules; issue estoppel and abuse of process.
• Re Bulb Energy Ltd [2022] EWHC 3105 (Ch); [2023] EWHC 1647 (Ch); various directions applications and trials, including interpretation of statutory transfer provisions dealing with the special administration of Bulb, the energy supply company.
• Re Allied Wallet Ltd (in liquidation) [2023] 1 BCLC 711; directions for distribution of client money, and scope of provisions dealing with the “cost of distributing the assets pools” in the relevant regulations.
• Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings Plc [2022] Bus LR 10; leading authority on subordination provisions and applicable interpretation, rectification and the rule against double proof as applied to surety claims.
• Re Nero Holdings Ltd [2022] BPIR 189; unfair prejudice challenge to use of CVA to restructure leasehold estates.
• Discovery (Northampton) Ltd v Debenhams Retail Ltd [2020] BCC 9 and [2020] BPIR 1378; unfair prejudice challenge to use of a CVA to restructure leasehold
• Re Debenhams Retail Ltd [2020] BUS LR 788; consideration of whether contracts of employment of employees placed on government furlough scheme were adopted by the administrators for the purpose of Schedule B1 of the Insolvency Act 1986.
• Re OJSC International Bank of Azerbaijan [2019] Bus LR 1130; potential use of the Uncitral Model Law to seek to give effect to a foreign restructuring of English law governed debt
• Lehman Bros Scheme [2019] BCC 115; scheme of arrangement used to effect final compromise of creditor claims against LBIE
• Re MF Global (German Tax issues) [2020] 1 BCLC 649); disputed stay application raising difficult issues relating to the scope and application of the rule against double proof
• House of Fraser [2018] EWHC 1906 and 2663 (Ch); use of schemes and CVA to restructuring landlord portfolio
• Waterfall I [2016] Ch 50, concerning whether currency conversion claims rank as non- provable claims in an insolvency
• Waterfall II [2016] Bus LR 17 and [2015] BPIR 1162, concerning various issues relating to the interpretation of the interest provisions in the Insolvency Rules 1986, and the effect of post-administration agreements entered into by the Lehman administrators with creditors on claims to interest/non-provable claims
• Kemsley v Barclays Bank [2013] BPIR 839, concerning the availability of anti-suit injunctive relief in support of domestic insolvency proceedings
• BNY Corporate Trustee Services v Euosail-UK 2007-3BL [2013] 1 WLR 1408 (SC), meaning of balance sheet insolvency for the purpose of section 123(2) of the Insolvency Act 1986
• Mills v HSBC [2012] 1 AC 804 (SC), interplay between the rule against double proof and the rule in Cherry v Boultbee Re Kaupthing Singer and Friedlander [2010] BPIR 539 (CA), correct interpretation and application of the Insolvency Rules relating to set-off in respect of future liabilities
• Re IMO/Bluebrook [2010] 1 BCLC 338, contentious scheme involving valuation issues and the acquisition of the debtor’s business by senior creditors using a debt for equity swap
• Hague and Pricewaterhousecoopers v Nam Tai Electronics [2008] UKPC 13, ability of dissatisfied creditors to bring claims directly against office holders
• Re Cheyne Finance [2008] 2 All ER 987, meaning and scope of commercial insolvency within section 123 of the Insolvency Act 1986
• Re Cape [2007] 2 BCLC 546, whether schemes of arrangement can include self-amendment provisions
• Re T&N [2006] 1 WLR 1728, ability of schemes and CVAs to bind contingent creditors in the context of large scale asbestos liabilities

Richard regularly advises on and conducts litigation in relation to issues arising from structured finance documentation, and disputes between different classes of noteholders. He has acted in all of the Lehman disputes regarding ranking/priority and proof issues. Since acting in the consolidated Firth Rixson appeal concerning the ISDA master agreement, Richard has  been instructed in relation to general derivative disputes and, in particular, close-out calculations. He regularly appears in the Commercial Court or Financial List dealing with commercial disputes between funds and banks.

Reported cases include:

• Primeo Fund (in liquidation) v Bank of Bermuda (Cayman) Ltd [2024] AC 727; [2022] UKPC 22; final appeal concerning issues of duty, reflective loss and limitation of action following the trial of claim for negligence against fund administrator and custodian concerning Madoff ponzi scheme.
• Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings Plc [2022] Bus LR 10; leading authority on subordination provisions and applicable interpretation, rectification and the rule against double proof as applied to surety claims.
• Citibank NA v Speciality Steel UK Ltd [2022] 2 BCLC 597; scope and effect of rules applicable to note trustee’s winding-up petition presented during COVID pandemic.
• CBPE Capital Fund VIII A LP v Taranissi [2021] EWHC 2855 (Ch); trial of contractual interpretation and unilateral mistake issues regarding loan notes and shareholder agreement.
• Re Lehman Brothers Holdings Plc/LBHI2 [2020] EWHC 1681; [2022] Bus LR 10 (CA): disputed claim regarding ranking, rectification and proof of future debts.
• Cyrus v Oceanwood (2019): derivatives dispute raising significant issues regarding the meaning and application of the Market Abuse Regulation
• Re Lehman Brother International Europe [2012] Bus LR 667, correct interpretation of CASS 7 (client money protection) rules
• LB RE Financing No 3 v Excalibur Funding No 1 [2011] EWHC 2111 (Ch), correct construction of the terms of issue of a series of CDOs, and whether an event of default had occurred
• Lomas v JRF Firth Rixson [2012] 2 Lloyd’s Rep 548, interpretation of section 2(a)(iii) of the ISDA Master Agreement, and infringement of the anti-deprivation principle
• Re Cattles [2010] 2 BCLC 712, proper interpretation of a non-compete clause within a corporate group cross guarantee Mills v HSBC Trustee (CI) [2012] 1 AC 804, proper interpretation of a multi-party guarantee and subordination agreement, and the application of the rule in Cherry v Boultbee
• Bank of New York v Montana [2008] EWHC 1594 (Ch), correct construction of security documentation relating to the Orion SIV
• Re Save Group Robinson v AIG [2005] 1 BCLC 1, enforceability of multi-party subordination agreements and their effect on inter-company proofs

Richard continues to be involved in substantial commercial litigation and asset recovery proceedings, with litigation taking place in various jurisdictions. Richard regularly acts for the Society of Lloyd’s in relation to disputes with members and others, and acts as an arbitrator for Lloyd’s disputes. Having acted for the Brunei Investment Agency for many years in relation to its disputes with Prince Jefri, he spent large periods of time acting in relation to the IPOC litigation, the Tchigirinsky v Sibir Energy dispute and aspects of BTA Bank v Ablyazov. Richard has spent a significant period of time engaged in litigation in off- shore jurisdictions such as the Cayman Islands and BVI. Recent instructions include the Cayman Islands $2b claim brought by liquidators of a Madoff feeder fund for breach of duty against its former custodian and administrator (Primeo v HSBC), and various disputes arising out of the Lehman Bros administration concerning the interpretation of contractual subordination provisions. Richard has particular experience of crypto-asset related disputes (including jurisdiction disputes), having acted for the liquidators of Three Arrows Ltd since their appointment.

Richard’s instructions frequently involve obtaining or defending injunctive relief, the appointment of inspectors/receivers and judgment enforcement issues (including sovereign immunity).

Significant cases include:

• Primeo Fund (in liquidation) v Bank of Bermuda (Cayman) Ltd [2024] AC 727; [2022] UKPC 22; final appeal concerning issues of duty, reflective loss and limitation of action following the trial of claim for negligence against fund administrator and custodian concerning Madoff ponzi scheme.
• CBPE Capital Fund VIII A LP v Taranissi [2021] EWHC 2855 (Ch); trial of contractual interpretation and unilateral mistake issues regarding loan notes and shareholder agreement.
• SFO v Litigation Capital Ltd [2020] EWHC 788 (Comm); fraud and tracing claims pursued by various parties against assets located in the UK and
• Primeo v HSBC (2019): $2b claim against HSBC for breach of duty acting as administrator and custodian of a Cayman Islands investment fund placing funds with Madoff in New
• Cyrus v Oceanwood (2019): derivatives dispute raising significant issues regarding the meaning and application of the Market Abuse Regulation. 4 month trial in 2016/2017, 2 week appeal 2018
• SerVaas Incorporated v Rafidain Bank [2013] 1 AC 595 (SC), judgment enforcement and state immunity
• Snoras Bank v Antonov [2013] EWHC (Comm) 131, freezing orders, compelled information and the right to silence
• Lomas v JRF Firth Rixson [2012] 2 Lloyd’s Rep 548, interpretation of Section 2(a)(iii) of the ISDA Master Agreement, and infringement of the anti-deprivation principle
• BNY Corporate Trustee Services v Euosail-UK 2007-3B [2013] 1 WLR 1408 (SC), construction of terms and events of default in a CMBS transaction
• Brunei Investment Agency v Bolkiah [2007] UKPC 62, construction/enforcement of settlement agreements

Richard undertakes general company law advice and has particular experience in respect of domestic, Cayman, BVI and Bermudian shareholder disputes, including unfair prejudice petitions, just and equitable winding-up petitions, redemption issues and the appointment of company inspectors.

Significant offshore litigation in respect of which Richard has been instructed includes Re Fortuna Development Corporation (Cayman Islands), regarding the stay/strike out of a just and equitable winding-up petition and subsequent satellite litigation, and Primeo v HSBC (Cayman Islands), regarding the duties of fund administrators and custodians.

Contributor to Cross-Border Insolvency, Fourth Edition (Sheldon, Bloomsbury, 2015) Contributor to Mortimore, Directors Duties, Fourth Edition (Arnold, OUP, 2024)

“The wrongs and rights of trading in the twilight zone” (2016) B.J.I.B. & F.L. 31(6), 336-338
“Comity, COMI and anti-suit injunctions: Kemsley before the English and US courts” (2014) Int. C.R. 11(3), 187-192

“Eurosail and balance sheet insolvency: are we any clearer?” (2013) C.R. & I. 6(4), 83-86

“Re Kaupthing Singer and Friedlander Ltd: set-off and future debts” (2010) Int. C.R. 7(5), 348-349