Holding court – cases of the year

Holding court – cases of the year

If any trend is set to define the London disputes market in 2024, it is the continued rise of group litigation. A vast array of mass claims are winding their way through the courts, spurred on by an increased willingness to adapt to the challenges of case management, heightened awareness of environmental, social, and governance (ESG) issues on the parts of corporates and the general public, the maturing of the claimant Bar, and the development of the Competition Appeals Tribunal (CAT) regime – including the rise of the first opt-out class actions.

The comprehensive failure of ClientEarth’s derivative claim against Shell has not slowed activity in the environmental space. In addition to the upcoming decision in the major Municipio de Mariana & Ors v BHP Group, a number of other group actions are brewing, with Leigh Day among the firms leading the charge. The firm is bringing a claim on behalf of more than 11,000 claimants from Nigeria’s Ogale and Bille communities, alleging that oil spills from Shell pipelines have caused long-term contamination of claimants’ land and water. Judgment is awaited in a petition to further expand the claim to address questions about the right to a clean environment. Continue reading “Holding court – cases of the year”

Scaling up: a look back at the last ten years of disputes in London

Scaling up: a look back at the last ten years of disputes in London

When Legal Business first launched its Disputes Yearbook back in 2014 Brexit was barely on the radar, most people had not heard of Wuhan and post-financial crisis disputes work and oligarchs were helping firms cast aside any doubts about how sustainable further disputes growth was at either the biggest players in the City or the boutiques spinning out from them.

While much has changed, many of the key market players are still the same today and some of the bigger trends keeping litigators busy now were still evident a decade ago – albeit in nascent form. Continue reading “Scaling up: a look back at the last ten years of disputes in London”

Access to justice: Spurious claims under the spotlight – best intentions or base motives?

Access to justice: Spurious claims under the  spotlight – best intentions or base motives?

With the marked increase in group litigation and rapid development of the litigation funding industry, the Competition Appeal Tribunal is consistently seeing novel claims. New theories of dominance are appearing, with what actually constitutes a dominant position widening. And the type of claim presented to the tribunal is expanding, with an increasing number of ESG claims filed.

As the only court in the jurisdiction to allow for opt-out group litigation, the CAT is the only means by which North American style class actions can be brought. Supporters of the expansion of the CAT’s domain and these new claims see it as a necessary means of consumer redress. The system is seen as one that provides access to justice for consumers, and a way of holding major corporates to account. Continue reading “Access to justice: Spurious claims under the spotlight – best intentions or base motives?”

Debate winners – which disputes teams are best at making their case to the Legal 500?

Debate winners – which disputes teams are best at making their case to the Legal 500?

Disputes is one of the broadest areas of work covered by the Legal 500; while commercial litigation accounts for over half of all of our disputes rankings, a diverse range of specialisms also fall under the disputes umbrella, from professional discipline and commodities to debt recovery and costs. Continue reading “Debate winners – which disputes teams are best at making their case to the Legal 500?”

Disputes Yearbook 2024 – Editor’s Letter

Disputes Yearbook 2024 – Editor’s Letter

Welcome to the latest edition of the Disputes Yearbook from the Legal 500 and Legal Business; a special edition marking ten years of our annual guide to all things contentious, and a must-read for every self-respecting litigator.

This supplement brings together analysis of the key issues facing disputes lawyers, interviews with senior figures in the market, and an in-depth round-up of some of the biggest cases around. Continue reading “Disputes Yearbook 2024 – Editor’s Letter”

Disputes perspectives: Adrian Chopin

Disputes perspectives: Adrian Chopin

When I was nine years old, an elderly relative told me I should consider being a lawyer because I was an argumentative brat. On that flimsy basis I studied law with German law. For my first year, I hated the subject – everything had come easily to me at school but this new thing required a lot of effort. I nearly gave up. At some point I had one of those moments that still makes me wince, but that nevertheless shaped my life. I was sitting on the floor of my room alone, pre-loading on vodka and listening to Pink Floyd’s Time when I had a moment of white panic that I was going to achieve nothing with my life. I ended up learning that the surest way to start to enjoy something is to get good at it, which is usually the reward of a tonne of hard work. I ended up loving my law degree.

When I joined Allen & Overy, I discovered that I adored the puzzle of understanding, structuring,and negotiating derivatives transactions. It was a total nerd bonanza, and it was perfect for me. During this time, as a junior associate, I squiffily wrote an email to a girl I was dating telling her how much I liked her and… well you get the idea. I put my BlackBerry into my pocket but forgot to lock the keypad. While it was in my pocket, I somehow pressed the combination of buttons to forward my amorous email to ‘A&O New York (all)’. I checked my BlackBerry the next morning and my blood ran cold. I was certain my career was going to end with an article picking over my lovestruck sweet nothings.

I squiffily wrote an email to a girl telling her how much I liked her, put my BlackBerry into my pocket but somehow pressed the buttons to forward my amorous email to ‘A&O New York (all)’.

I tried to phone anybody and everybody in the A&O New York IT team, but it was the middle of the night, and nobody answered. After about four stomach-churning hours I finally got hold of a lovely chap who confirmed that the mailbox filter had quarantined my email for review and that he would delete it without reading. I almost wept with relief. I put a picture of that guy up on the wall of my office. Old A&O NY IT guy, if you’re out there reading this and you ever need anything, you just have to call me.

One of my colleagues at A&O once said, ‘we cheer as loudly when a deal dies as when a deal closes’. He was right: when a deal closed or aborted the associates would get a few days’ respite from working long hours and would mostly be paid the same amount either way. By contrast, in my first month as an investment banker, when I showed relief at the death of my first deal, my boss observed ‘you won’t last long here with that attitude’. Things have improved at law firms since those days, but I still think that sense of ownership is something many lawyers don’t really experience until they are much later in their careers. Also, Deutsche Bank involved a lot more swearing.

I loved the combination of law and financeand I observed there were lots of litigators but not enough finance professionals in the industry. I thought I could bring something a bit different and that it would be exciting to be part of building a new market. So I took the plunge in 2015, which now makes me one of the dinosaurs of this young industry.

My biggest achievement is setting up a litigation funding business from scratch in 2015: I had no track record, no employees, no models, no documents and all my legal contacts were at Magic Circle and white-shoe firms, none of whose clients wanted funding. I had to spend nights and weekends drafting template documents, building models, and setting up operational systems, all starting from nothing. And during the day I was running around the City taking meetings to build a new network of contacts. I was hugely grateful to John Young and Gary Wee at Orchard, who took a flier on me when I had just an idea; their support, and the fact that they paid me a salary, made it possible. It was the greatest learning experience of my life.

But in close second place, is the deck of ‘top trumps: funder mentals’ that my wife and I made during lockdown. We made cards for high-profile figures in the funding industry with ratings in categories such as ‘charisma’, ‘nerd number’, ‘spin factor’ and ‘pain infliction’ and we included a fairly robust comment on each person at the bottom of the card. People in the industry now beg to be included in the deck. The only thing worse than being in top trumps is not being in top trumps.

For budding lawyers, my advice would be to learn to write professionally and succinctly but always ensure you remain a normal human being. As a trainee I thrived on sprinkling bombast into my emails, like ‘timeous’ and ‘eleemosynary’. But I mostly sounded pompous and insecure. And never forget you are there to do a deal, not to burn the other side to the ground. This is just as important in litigation and arbitration as in transactional work. So don’t act as if you’re engaged in mortal combat, but try to cultivate a decent, professional relationship. It will make your work fun and fruitful.

If you think you’re a better litigator than the lawyer you are backing, you shouldn’t be backing them. It’s better to back a great lawyer with a good case than a great case with a good lawyer.

For those considering a move from law into funding, you need to learn that you aren’t litigating these cases, and you need to start thinking like an investment professional. That’s multifaceted – you need to learn a bit about maths, a bit about finance, and a bit about deal structuring even if you’re in a pure due diligence role. It will make you a far better funder. Also, if you think you’re a better litigator than the lawyer you are backing, you shouldn’t be backing them. It’s better to back a great lawyer with a good case than a great case with a good lawyer.

My biggest inspiration in the law is David Benton, my old boss from A&O. He is an extraordinary individual: he wears his planet-sized intelligence as lightly as the ugly camo jacket he used to wear to client meetings. And he allies it to a casual, generous sense of humour. He taught me many things, including that real confidence comes from understanding your subject matter and that the best lawyers are not rule-moaners, they are imaginative, creative, and solution-oriented. He built a team that was bright, hardworking, and happy, which made being at work a pleasure, even when the hours were tough.

I think over the next few years we’ll see some more consolidation in the industry, especially in continental Europe, where the market will continue to grow but some smaller funders will end up being absorbed into larger platforms. Both Europe and the UK will see further development of their class action regimes. We’ll probably see at least one or two absolute ‘gut buster’ wins in a non-US group action and this will lead to another flood of cash trying to come into the market. They’ll struggle to build platforms that replicate the success of the more established funders. But that’s fine; we’ll still be here making it work after the fast money
has retreated.

My favourite book is The Book of Ebenezer Le Page. It’s an awkward and engaging canter through the twentieth century history of Guernsey via the life of an oddball. I grew up in Guernsey and I still get dewy-eyed reading some passages. Do yourself a favour and give it a try.

Adrian Chopin is co-founder and managing director at Bench Walk Advisors.

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Disputes perspectives: Kate Davies KC

Disputes perspectives: Kate Davies KC

I didn’t really decide to be a lawyer, the law chose me. I went to a wedding and sat next to a very nice man. He turned out to be a partner in a law firm and we talked career options all night. He gave me his business card and said to call him. I did, and was invited to meet some people. Entirely unbeknownst to me, it was a trainee selection day. I had no idea what I was doing, but I spent a day taking part in various team and individual exercises. At the end of the day the senior partner handed me a brown envelope. I asked what it was and he said, ‘a training contract’. I had to phone a friend to ask what that was. I hadn’t done a day of study in the law, but they paid for me to go to law school. I found my calling and the rest is history. Thank you, Miles.

If not for law, it would have been musical theatre, becoming an Olympic dressage rider or just being Mum. Growing up, I loved being on stage and I think it was my early training ground for being an advocate. I also studied theatre at A-Level.

Dressage was another huge passion of mine, and I pursued the ‘Olympic dream’, but my one horse sadly got the first-ever reported equine case of motor neurone disease and had to be put down. I couldn’t afford to start again – so that was it. But I am a great believer in all things being for a reason. It was a chapter of my life I loved, I learnt a huge amount, including the value of hard work, and I got to move on to the next adventure.

The most embarrassing thing to have happened to me at workwas – I was once called by a partner I was working with, on my mobile while on the loo and… I answered. I know – don’t ask. It was a slightly awkward conversation – the partner I was talking to was adamant I was needed right away. There are two women out there who I hope will read this and fall off their chair laughing.

‘Entirely unbeknownst to me, it was a trainee selection day. I had no idea what I was doing. At the end of the day the senior partner handed me a brown envelope containing a training contract.’

There are too many war stories to mention and most of them are unrepeatable. But they are the ones in which you find the very best of this job – camaraderie, kinship and lots and lots of laughs.

The most memorable case I’ve worked on was definitely the Abyei arbitration. I acted for what is now South Sudan in a boundary dispute which paved the way for South Sudan to secede. It was career defining. In terms of most interesting case, honestly, all my cases are interesting. It is one of the many things that makes this job such a privilege – you can never get bored.

When I first made counsel, I got upwards feedback in which some associates said I was a macro manager and some said I was a micro manager. I learnt to adapt my style to those I am working with and to develop a thick skin. I would like to think I am human, fair, and never ask more of others than I am willing to give myself. I want my teams to be collaborative, respectful, and strive to be the very best at all times. I also believe in it all being fun – otherwise what is the point. My team would describe me as too busy!

This will sound corny, but my biggest inspiration has been my Mum. She was brave, selfless, perfectly flawed and entirely her own person. She gave me the best of me. Inside the law, there are too many people over the years to single out just one. In general, my inspiration has come from the senior people who support the more junior people; the men who have looked out for the women; and the handful of brilliant advocates I have been privileged enough to work with and against.

My biggest achievement is easily being a Mum. Although, truth be told, my kids are awesome despite me, not because of me.

It takes humility, curiosity and a desire to listen and understand people to make a great disputes lawyer. And a healthy sense of humour!

When I’m not at work, I’m with my kids at one of their many national and international sailing events, come rain or shine. Otherwise, I’m just generally outside in the fresh air being active. I was not designed for an office job! Cooking, reading, music and trying to see my long-suffering friends, or walking my dog.

I have so many favourite films but if I absolutely had to choose, The English Patient. The most human and affecting book I have ever read is Far from the Tree by Andrew Solomon.

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Disputes perspectives: Sherina Petit

Disputes perspectives: Sherina Petit

I am the third generation in my family to have taken up law, following in the footsteps of my grandfather and father. My father was a partner at one of the top law firms in Mumbai and some of my best memories are of sitting in his office during school summer holidays, listening to him advising clients and watching with awe as they would listen. In my eyes no-one was smarter than my father, who clearly had the attention of every client.

I do not think there was ever any doubt in my mind of what career path I wanted to take. Perhaps, there was a flinching moment when I toyed with the idea of journalism or of veterinary science – but that was just a passing phase. I was always sure that I wanted to pursue law – have clients hang on to my every word like they did with my father.

The first day of law school also coincided with the first day of joining my father as an intern. At the time he was doing an interesting case which was the largest Indian bank scam of that time. That’s when I fell in love with disputes. I would be tasked with the important job of carrying the papers to the court every day, but that is where I watched some of the greatest intellectual minds arguing and cross-examining witnesses. It was thrilling to say the least. Hence when I came to London to pursue my LL.M, one of my main subjects was international arbitration.

‘I was suddenly a law student with one of the largest clienteles in Mumbai.’

If not for law, I probably would have been a travel and food journalist. I could have combined my love for travelling with my storytelling skills. I am passionate about writing, especially poetry. I love to explore new places, experience varied cultures, and taste different cuisines. I was lucky enough to take a month-long sabbatical to Antarctica in December 2023 which was the trip of a lifetime, and something that I am writing about. Luckily, with international arbitration one gets a chance to travel to different destinations and make friends all over the world.

Although I have been lucky to have been involved in some of the largest and most complex litigations and international arbitrations over the years, the most memorable case that stands out to me was saving the stray dogs of Mumbai. I was in law school when newspapers exposed the inhumane way stray dogs were being killed in Mumbai. I still had not got my practising certificate, but a colleague and I managed to convince an animal rights organisation to let us assist them without any charge in approaching the courts to stop the merciless killing. Other animal organisations also joined the movement. I was suddenly a law student with one of the largest clienteles in Mumbai. I spent days, weeks, and years working through weekends, spending my spare time drafting pleadings and approaching junior and senior barristers in Mumbai to appear for us in court. The case went all the way to the Supreme Court of India, and we were successful. The sense of achievement I got from saving innocent lives was second to none. The case taught me to pursue what I believed in, and to face challenges head on.

What does it take to make a great disputes lawyer? Hard work! Hard work! Hard work! That is the mantra.

My managerial style is to empower and support my team to perform at its best, whilst also fostering trust, collaboration, innovation, and a positive, friendly, and open work culture. I try to involve the team in decision making since it fosters a sense of ownership and a commitment to a common vision. I am intolerant of bad behaviour – it undermines trust and a healthy culture. Ultimately, I have learnt that being intolerant of bad behaviour but providing mentoring, empathy, constructive feedback, and recognising individual contributions makes everyone feel valued and this is key in getting the best results.

What does it take to make a great disputes lawyer?Hard work! Hard work! Hard work! That is the mantra, and there is absolutely no substitute. Besides hard work, one also requires a combination of legal knowledge, analytical and communication skills, attention to detail, and a strategic mind. One needs to always maintain a high ethical standard and integrity. Disputes can be emotionally and mentally taxing so one needs to have the patience and resilience to manage pressure including a lot of late nights. Most importantly, one needs to have a mentor, without which it is exceedingly difficult to succeed.

The legal disputes industry is likely to become more dynamic, driven by technological innovation, changing societal expectations, and emerging legal challenges. Given the globalisation of businesses, we will see an increase in the complexity of cross-border disputes. There will be greater demand for lawyers specialising in niche areas such as international arbitration and a growing emphasis on ADR methods to save time, costs, and resources.

When I’m not at work, I’m travelling, cooking, trying out different cuisines and restaurants and sharing a glass or two of wine with family and friends.

My biggest inspirations within the law are my father and my husband and outside the law, my mother. Together but in different ways they are my north, my south, my east and west, my working week and my Sunday rest. I could not ask for a better friend, philosopher and guide and I owe them everything.

Sherina Petit, head of international arbitration and head of India practice, Stewarts

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Disputes perspectives: Bankim Thanki KC

Disputes perspectives: Bankim Thanki KC

I still don’t regard myself as a proper ‘lawyer’ as such. Despite 35 years in practice at the Bar, 21 of which have been in silk, I still regard this whole thing as extended work experience to see if this might be the right career for me.

I was on the verge of starting a doctorate in History at Oxford, when my brilliant and very perceptive tutor at Balliol, Oswyn Murray, told me frankly that he just didn’t think I would enjoy a lonely three (or more) years in dusty archives which the completion of a D. Phil would require, nor the years of penury which would follow if I pursued the academic career I hoped for. It was Oswyn who suggested that the Bar might be a better alternative to academia – just as intellectually stimulating, but with more financial security and more variety. I thought I would give it a try.

When I started in practice at Fountain Court, new members were sent off to spend three months in a criminal set to gain advocacy experience.After a week following an established criminal barrister, we were let loose on actual cases. One of my first outings involved a plea for mitigation in the Crown Court. Halfway through my oration, I heard a scuffle at the back of the court – my client had jumped over the rail of the dock and had done a runner, possibly displaying less than complete confidence in my advocacy on his behalf.

My career hasn’t involved any warfare or even minor hostilities on my part. There are better ways of winning (or trying to win) cases without unnecessary friction. Certainly my single worst experience was being repeatedly shouted at by an angry judge in the Admin Court who hated my client’s case. We obviously went down in flames. We did win on appeal though.

Halfway through my oration, I heard a scuffle at the back of the court – my client had jumped over the rail of the dock and had done a runner.

Since 2016 I have led Ukraine’s defence of a claim brought on behalf of the Russian Federation in respect of the first tranche of a $15bn loan programme by way of a bond issue, which Ukraine asserts was induced by duress prior to the Russian invasion of Crimea in 2014. We lost at first instance, but we won in the Court of Appeal and, eventually, in the Supreme Court. The case involved frequent trips to Kyiv to see my marvellous Ukrainian clients at the Ministry of Finance, before the dark days when this became impossible after the outrageous 2022 invasion. Commercial litigation is hardly ever black and white in terms of the morality of the litigants, but this is a case where I really do feel that we are on the side of the angels. Alex Gerbi at Quinn Emanuel has handled a really difficult case with great dexterity and dedication to the cause, despite the huge practical difficulties the case has thrown up.

I was also involved for over a decade acting for the Bank of England in the monumental Three Rivers litigation. I started the case as the baby junior in a large team assembled by Freshfields and ended the case as a silk. The case collapsed when the liquidators unexpectedly threw in the towel midway through the course of a trial which had already lasted two years, including the longest opening speeches in English legal history, and several interlocutory trips to the Court of Appeal and House of Lords along the way. The widespread allegations of systemic dishonesty said to have infected the Bank of England’s supervision of BCCI were without merit, but aggressively pursued over many years. Mr Justice Tomlinson’s eventual judgment vindicating the Bank of England’s conduct was a very gratifying read.

Most recently I led for the DAF parties in the PACCAR case on litigation funding. Having lost twice at first instance and on appeal, I was not hugely optimistic when we showed up at the Supreme Court. The successful outcome there (by a 4-1 majority) was a very welcome surprise, but has made me very unpopular in certain quarters. The outcome was (I think) analytically correct as a matter of statutory interpretation, but against the settled market understanding of many years. Throughout, Travers Smith (Huw Jenkin and Caroline Edwards) remained true believers and persuaded the clients to carry on the fight. The government has said it plans to reverse the outcome though legislation, but regulation of the litigation funding sector may be the price it has to pay — which may be no bad thing, if properly done.

Normally barristers don’t really have to manage anything, but I was head of chambers of Fountain Court between 2018 and 2023, having been deputy head between 2013 and 2018. We concentrate quite a lot of responsibility in the office of head of chambers at Fountain Court and my colleagues would probably say I was at the more autocratic end of the spectrum – perhaps, at best, a benign dictatorship! My time in chambers before then had taught me, over many years, that attempts at more democratic engagement in a large set (now with more than a hundred members) tended to disintegrate into a cacophony — where any unifying consensus was more or less impossible. This is compounded by the fact that barristers have a short attention span for management and administration depending on how busy they are running their own practices at any given time. I was head of chambers during the Covid years, which required a bit of dexterity and imagination to keep chambers ticking over and eventually to coax people back into chambers. My management style nowadays, such as it is, is to be the passive recipient of management by others without any attempt at backseat driving — finally to enjoy focusing on my own practice while my eminent successor runs the show!

How would my team describe me? Frankly, I dare not ask, so I am not entirely sure. Possibly ‘high maintenance, but appreciative’.

It can be quite gruelling to last the course in heavy commercial work. The more senior you get the less easy the work becomes. In the early days of Three Rivers I was led by the late great Sam Stamler QC at the tail end of his long and illustrious career. He invited me to tea at One Essex when I was first instructed, which came as a surprise for the most junior barrister on the team, but he was genuinely interested to hear my take on the case with a fresh set of eyes. While we were chatting his senior clerk brought in a new set of papers for him. Brandishing his scissors, Sam said he still felt a thrill of excitement when he cut the pink tape on new instructions with brand new facts. I have never forgotten that sense of effervescent joy in his work. Perennial gloom merchants tend not to thrive at the Bar. So, ultimately, leaving aside all the obvious attributes around intellect and advocacy, I would say it takes curiosity, positivity, and stamina.

My colleagues would probably say I was at the more autocratic end of the spectrum – perhaps, at best, a benign dictatorship!

I don’t see any great changes on the horizon for claimant litigation. Claimant work may go through a period of flux while the funding sector sorts itself out after PACCAR, but otherwise I see no dark clouds gathering (words I may come to regret).

Outside of work, I spend my time on food, wine, cinema, and friends. As a family, we love adventurous holidays, our best-ever trip being an extended journey around Alaska in 2018. I still read a lot of history books, my latest being The Restless Republic by Anna Keay, about the interregnum between Charles I and Charles II – a period about which I knew only a little, and the book was, surprisingly, a real page turner.

We used to ask pupillage candidates to name their favourite film, but gave up when virtually everyone said The Shawshank Redemption.This is undoubtedly a great film but not my favourite. My answer would vary depending on when I’m asked, but if I had to pick one film it is (possibly out of nostalgia and at the risk of cancellation) Woody Allen’s Play It Again, Sam, a very clever and funny take on another great film, Casablanca. Naming a favourite book is very hard. A shortlist would include Middlemarch, The Remains of the Day, and War and Peace. Ultimately, I think Tolstoy shades it.

My biggest inspiration within the law was my first pupil master – the late Trevor Philipson QC, simply the most stylish advocate I have ever seen in action. He made advocacy look effortless, but this was all backed up by prodigious preparation beforehand.

Outside the law and in every other realm, my biggest inspiration is my beloved late wife Catherine, about whom I think every day and try to imagine what she would have advised we do about any situation. She was invariably right.

My biggest achievement is raising four lovely and rather interesting children, who are never boring. They had to manage without their mother during some of their formative years, but they are all stumbling along in life in a vaguely straight line. I am quite proud of that.

Bankim Thanki KC is a silk and served as head of chambers from 2018 to 2023 at Fountain Court Chambers.

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