Trevor Mascarenhas is a leading name in the UK for asset recovery issues, and advises both claimants and defendants in a wide variety of commercial disputes.
Trevor is a senior partner of PCB, one of the leading asset recovery firms globally, which is now part-owned by Burford Capital, the world’s largest litigation funder. Trevor has been at the forefront of cutting-edge cases, developing strategies to tackle sophisticated schemes used by fraudsters to conceal assets. He co-ordinates teams of lawyers in multi-jurisdictional cases, and works closely with banks and other clients to address their distressed debt and other asset recovery issues.
What do clients look for when selecting an asset recovery expert?
There are a number of factors that clients take into consideration including relevant experience, recognition by directories, recommendations from trusted sources, bench strength of the team and cost. I would say the most important is relevant experience, because clients do not want lawyers learning on the job; they want lawyers who know their way around the issues and who can deal with any complications that may arise.
What’s been the most interesting case you have worked on to date, and why?
While it was a few years ago, I still think back to Jenington v Assaubayev because that was a case that involved allegations of fraud involving gold mines and politically connected persons, tricky legal issues, a great many moving parts (including freezing orders in multiple jurisdictions, search orders in various locations, parallel arbitration proceedings and a flurry of interim applications following service). The defendants were represented by Magic Circle and large US law firms, and what it demonstrated to the market was that a small but experienced team could achieve huge success against heavyweight teams instructed by defendants in major disputes.
PCB Litigation have recently agreed a deal with funder Burford Capital. How will this affect your investigations and asset recovery practices?
Being able to draw on Burford’s expertise in financing asset recovery cases, means that we can better provide commercial and legal solutions to clients with distressed debt issues. I think it will therefore enhance the offering we can provide to clients and enable PCB to increase market presence in target jurisdictions.
What are the benefits to clients requiring or considering litigation funding of the PCB Litigation-Burford tie-up?
We believe that the process is more streamlined, with both legal and financing experts working together to provide solutions to clients. Moreover, if this can lead to a portfolio of a client’s claims being funded, the cost to the client of financing can be reduced significantly. At the same time, the client’s ability to choose is not diminished, as the relationship with Burford is not exclusive.
Sources have noted an increased amount of litigation arising from distressed debt. How do you approach a complex, multi-jurisdiction case in this arena?
Information about assets is critical, because you want to navigate a path to recovery, and one which is commercially viable having regard to the costs and risk associated with recovering the assets that may be available. That path will involve consideration as to where proceedings can be brought that will lead to a judgment that can be enforced against the assets, what interim relief can be used to freeze the assets, and what avenues are available to obtain more information about those and other assets. There are a wide variety of tools that can be deployed to achieve these ends, and knowing which ones to deploy and how to do so is something that comes with experience.
Are you seeing new types of fraud emerge and develop during the covid-19 pandemic? If so, what?
I would not call it new, but, unsurprisingly with so many more people working remotely, cyber-fraud appears to be increasing significantly. We have dealt with a number of such cases, where the client may choose to seek disclosure orders to understand where monies may have gone and who has been involved in the wrongdoing. Often, they lead to at least a partial recovery. Similarly, the use of cryptocurrency to launder the proceeds of fraud also appears to be on the increase.
To what extent is remote working as a result of covid-19 highlighting the importance of face-to-face interaction in litigation, and to what extent will virtual preparation and proceedings become the ‘new normal’?
It is clear that much can be done remotely. Indeed, for short interim hearings there are positive advantages from a time and cost perspective in not requiring all participants to attend court; I think that remote hearings of that type are here to stay. However, there are disadvantages ranging from patchy quality of internet connections of some participants to concerns as to whether witnesses are free from external assistance. Also, when taking instructions on difficult issues or when meeting a prospective client for the first time, meeting in person is still the most effective means of communication.
What would you like to achieve that you have not yet accomplished?
Recovering a 10-figure dollar amount in a case.
Trevor Mascarenhas wins extensive plaudits from market commentators who single him out as “a very clever practitioner” with extensive litigation expertise.
Trevor has a track record of successfully acting in large, complex and often ground-breaking asset recovery cases. He combines depth of legal knowledge with creative, strategic thinking in order to provide clients with winning solutions. Adept at obtaining freezing and disclosure orders in multiple jurisdictions, Trevor’s expertise has been recognised by the main directories. He was invited by UNCITRAL as an expert in the field, to its inaugural colloquium on asset recovery in December 2019.
What do you enjoy most about working in asset recovery?
I thrive on the challenge of solving complex problems presented by the sophisticated multi-jurisdictional structures used by fraudsters, and building the evidential picture required. The cases enable you to be legally creative, pushing at the boundaries of the law. It is particularly rewarding when you navigate a way through for the client that no one else has been able to do, and winning cases considered by many to be unwinnable.
How important is it to take a global perspective when taking on a cross-border asset recovery case?
Cross-border cases will often involve structures with layers of entities in different jurisdictions, and assets can be dissipated at different layers. It is therefore important to coordinate the whole team to ensure as far as possible that assets are appropriately locked down. This requires a good understanding of the local procedural and substantive law position, and a good relationship with the local lawyers, as well as having the vision to see how everything fits together.
What are the main challenges for enforcement agencies around the world today?
Lack of resources, coupled with the time it takes for mutual assistance to take effect, means that the process of freezing and recovering assets by enforcement agencies can be delayed, and assets may be lost. However, they can play a very important role in asset recovery cases. For example, in certain jurisdictions, the steps that enforcement agencies are able to take may lead to better information about assets and the freezing of such assets.
In your opinion, how will digital advancements such as the rise of cryptocurrency affect the kind of work asset recovery specialists receive in the next few years?
Cryptocurrencies raise huge issues for practitioners, both in terms of cases involving theft of such assets (where complex issues of choice of law and jurisdiction may arise given the nature of cryptocurrencies) and in terms of how effectively to freeze such assets and police the freezing order. Lawyers will have to work closer than ever with experts in technology to find effective ways to freeze these assets.
To what extent are clients shying away from arbitration as a method of asset recovery?
I do not think that they are shying away from arbitration. It is rare that a party is going to choose whether they are going to include an arbitration clause in a contract on the basis that they may have to bring an asset recovery case against their counterparty. Rather, what I think we are seeing is that clients are looking to asset recovery specialists for enforcing arbitration awards, or for dealing with injunctive relief in support of arbitrations. That is entirely natural as there are different skill sets involved.
What role are you currently seeing third-party funding playing in asset recovery litigation?
Funding asset recovery cases seems very much to have been on the increase. The sums in question can be large, which is attractive to funders, but there is a significant element of risk, which funders seem to be more comfortable taking than they have done previously. We are currently working on a number of funded asset recovery cases, where funders have sought our specialist expertise post-judgment.
What is the most memorable case you have worked on?
Jenington v Assaubayev is one that sticks in the memory as it featured many aspects of a complex international asset recovery case: freezing orders served simultaneously in four jurisdictions; search orders executed simultaneously with service of the freezing orders at three premises; numerous hearings over a period of several months against some of the largest firms in the world acting for the defendants; allegations of deceit, breach of fiduciary duty and proprietary claims; resisting fortification of the cross-undertaking in damages; and one of the leading judgments on cross-examination as to assets. It was a very intense few months leading this case before it settled, and it was great to have the experienced team at PCB to support me, as well as excellent overseas lawyers and barristers.
What advice would you give to younger lawyers hoping to one day be in your position?
I think that in order to succeed in this practice area, you have to live and breathe your cases, spending time thinking how you are going to solve the complex problems that arise, and trying to work with and gain knowledge from other experienced practitioners.
Trevor Mascarenhas has been a partner of PCB Litigation, a leading specialist dispute resolution firm, for nearly 20 years. During that time, he has led teams dealing with a range of commercial disputes, many of which are high value and cross border, involving complex legal and factual issues. Trevor’s cases vary from banking and corporate disputes, to fraud, asset recovery, contentious insolvency, professional negligence and real estate litigation. He is particularly known for his expertise in jurisdictional disputes.
How has your practice changed over the past year?
The past year has been dominated by the impact of the coronavirus pandemic. From a business perspective, that impact has not been unduly negative as the High Court in England has continued to operate effectively. There have been changes in working practices, some of which have been beneficial and may continue when the pandemic has subsided, such as remote hearings for interim applications. However, for the development of junior lawyers in particular, I think it is important that there be a return to office working, at least on a part-time basis.
On which types of matters have clients sought your advice in the past year?
The economic turmoil caused by the coronavirus pandemic has resulted in certain frauds coming to light, and that is only likely to increase as the effects on the global economy play out. Similarly, there has been an increase in distressed debt. Fraud and asset recovery have therefore dominated many of the new enquiries from clients over the last 12 months.
What do you enjoy the most about working on multi-jurisdictional cases?
Multi-jurisdictional case have more challenges and require more strategic thinking, whether acting for a claimant or defendant. The result is that the individual lawyer leading the team and making decisions can have a far greater impact on the outcome of the case, so there is more satisfaction in achieving a successful outcome.
Do you anticipate an influx of litigation as clients come to terms with the effects of the coronavirus pandemic?
A number of clients have been hit hard by the pandemic. Some are in survival mode and others are just not set up to function with people working remotely, so for them litigation is low down on their list of priorities. That is likely to change and although cash flow might be an issue, the presence of a mature litigation funding market should assist in a greater flow of litigation.
What tips would you offer on how to work effectively with funders and clients when seeking to bring a claim for consideration?
I think it is fundamental to consider the economics at an early stage: what is the realistic quantum, what are the likely costs and is the defendant good for the money? And I would emphasise the need for quantum to be realistic, because many clients have an exaggerated view of the value of their claim, and it is the lawyer’s job to provide realistic advice. If the economics will not work for the funder, then the client should not be wasting time and resources with that funder. If the economics do work, then having an open dialogue where the funder has trust in what is being said to them about the merits of the case is important in order to get the funder comfortable with the case.
How does PCB Litigation distinguish itself from its competitors?
Cases are led by experienced partners, who have a strong reputation for complex and heavy commercial litigation, leading lean teams of high-quality associates at relatively low rates. The focus also is on the ultimate commercial outcome, and these matters combine to produce a track record of cost-efficient results for clients. In addition, the relationship with Burford as a stakeholder in PCB provides clients with access to legal and financing solutions.
What has been your greatest achievement to date?
Being a part of the growth of PCB from a little-known litigation boutique into a well-known dispute resolution firm and market leader in commercial fraud and asset recovery cases. That has involved a combination of winning difficult cases, obtaining instructions on high-profile matters and making new laws along the way.
What advice would you give to someone looking to pursue a career in litigation?
Ideally, you would be able to work as part of a team on a reasonably large matter, but also to run your own caseload of smaller matters under appropriate supervision. Working as part of a team allows you to learn from more experienced colleagues. Running your own smaller cases enables you to develop your understanding of managing a case as a whole, including dealing with clients. Importantly, this encourages you to think about how you are going to achieve the best commercial outcome for your client. Time spent thinking about cases makes a crucial difference and you have got to be prepared to live and breathe your cases if you want to be successful.
“Trevor is a formidable opponent”
“He has an excellent mind and knows his specialist field inside and out”
Trevor is a senior partner of PCB Litigation and has been dealing with complex international asset recovery cases throughout his career. As such he brings a wealth of experience in freezing, search and disclosure orders, and has been at the cutting edge of many of the major developments in common law jurisdictions.
His expertise has been reflected in rankings in the major directories, which praise his strategic thinking, legal knowledge and creativity. Trevor has been at the forefront of developing and implementing the asset recovery strategy in numerous multi-jurisdictional cases, co-ordinating with lawyers in civil and common law jurisdictions in order to obtain effective freezes over complex asset holding structures.
His cases include Abela v Fakih, in which the first reasoned judgments were given as to the jurisdiction to grant a search order against a third party to proceedings; Jenington v Assaubayev, a case in which Trevor obtained freezing orders served simultaneously in five jurisdictions along with search orders at three premises, culminating in the leading judgment on cross-examination as to assets and VTB Capital v Universal Telecom Management, in which the Cayman Court of Appeal confirmed the jurisdiction of the Cayman Court to grant free-standing freezing orders in support of foreign proceedings.
Trevor has also had cases in the House of Lords, Supreme Court and Privy Council, and has authored numerous articles on asset tracing and other aspects of commercial disputes. In December 2019 he was invited by UNCITRAL to participate in its inaugural colloquium on asset tracing as an acknowledged expert in the field.
Trevor is a senior partner of PCB, a conflict-free specialist commercial dispute resolution firm. Winner of the Client Choice Award for 2019 for Arbitration and ADR in the UK, Trevor has been recommended by the main directories for civil fraud, asset recovery, banking litigation and commercial litigation. He is lauded for coming up with creative solutions for clients and for his command of complicated facts and law.
His practice also spans contentious insolvency, real estate litigation and professional negligence; and a variety of industry sectors including banking and finance, natural resources, private equity, real estate, telecommunications, automotive, and sports and leisure.
Two of Trevor’s cases have been identified as top 20 cases of the year by The Lawyer: acting for the first defendant to a US$1 billion Bahraini banking and Saudi real estate claim, and acting for 34 of the 48 respondents to a €1 billion claim brought by the liquidators of a Greek telecommunications company. Both cases ended successfully with the claims being discontinued against Trevor’s clients mid-trial.
Other cases include successful appeals to the House of Lords in a landlord and tenant case; to the Supreme Court in the leading case about service of proceedings out of the jurisdiction; and to the Privy Council about the limits of the jurisdiction of the BVI Court in a shareholder dispute.
Trevor has authored numerous articles for publications such as the Journal of International Banking Law and Regulation, Trust Law International, International Company and Commercial Law Review, European Lawyer, New Law Journal, Legal Business and the E-Commerce Law Reports.