Despite Brexit, costs pressures and the loss of financial crisis work, reports of the commercial Bar’s decline are overblown. We identify the sets and the silks redefining the modern Bar
Everyone in the global business community seems to know that many of Britain’s brightest lawyers practise at the commercial Bar, helping to maintain London’s position as a world leader in litigation. Over the past decade, nearly 70% of cases in London’s commercial Court have been brought by overseas clients: Russia, Kazakhstan, Switzerland and the US routinely originate the most litigants.
Before retiring last year, the Lord Chief Justice, Lord Thomas rejected the idea that foreign parties would abandon London as a centre to resolve their disputes because of Brexit. But, he cautioned, English courts and the appeal of English law could be further challenged by international competition because of concerns over litigation expenditure: commercial cases are invariably complex, heavily documented and highly priced. To address the issue, a working group chaired by Lady Justice Gloster has drafted reforms that would radically alter the disclosure rules. The commercial Bar’s future is not jeopardised by these potential reforms, which are being tested in a pilot scheme, but competition for premium work may intensify in the coming decade, especially if there is any diminution in London’s status as a centre to litigate, a notable decline in the volume of litigation, or both. Underpinning everything is the question of cost.
‘The death of the English commercial Court has been greatly exaggerated,’ says Adrian Beltrami QC, joint head of chambers at 3 Verulam Buildings (3VB). ‘It’s bogged down a bit by cost rules, and there are slightly more dynamic jurisdictions desperate to get commercial work. But people are always concerned that litigation in England is becoming very expensive, and that Singapore is ready and willing to take on some English work.’
Helen Davies QC, Brick Court Chambers: ‘Fearsomely bright and a brilliant advocate.’
According to Lawson Caisley, head of Allen & Overy’s London corporate and commercial litigation group: ‘Adrian has very good judgement.’ Damien Byrne Hill, head of disputes UK and US at Herbert Smith Freehills (HSF), agrees: ‘Adrian is a bit of a superstar; he’s fantastic.’
Equally lauded is Helen Davies QC, joint head of chambers at Brick Court. ‘She’s exceptional, fearsomely bright and a brilliant advocate who inspires huge confidence in her clients,’ says Ben Carroll, head of Linklaters’ energy disputes team. ‘Of all the foreign clients that I work for, the things that attract them to London are the absolute integrity and ability of our judicial system, and the quality of the legal advice that they get,’ says Davies. ‘There are some clients interested in our disclosure rules who think that they have certain advantages compared to other jurisdictions. Obviously, there are other clients, mainly on the defendant side, who would probably rather avoid some of them.’
‘The death of the English commercial Court has been greatly exaggerated. People are always concerned litigation in England is becoming very expensive.’
Adrian Beltrami QC, 3 Verulam Buildings
Plaintiff or defendant, clients are spoilt for choice in quality advocates. Like its City law firm counterpart, the Bar’s Magic Circle of leading chambers comprises five members: Blackstone; Brick Court; Essex Court; Fountain Court and One Essex Court. ‘Over recent years, many of the leading sets have grown significantly in terms of size, depth, breadth of experience and specialism,’ says Jeremy Kosky, head of commercial litigation at Clifford Chance (CC). Accordingly, The Legal 500 now identifies almost 200 commercial QCs stratified in six bands across more than 20 sets of chambers. Their educational pedigrees are uniformly impressive – invariably first-class degrees, often supplemented by postgraduate qualifications such as an Oxford BCL. So are the pupillage awards: £65,000 at the top sets, rising to £70,000 at One Essex Court.
But academic excellence is not everything. After doing his pupillage there, Jonathan Sumption QC was not taken on by Essex Court: the man who went on to become the commercial Bar’s unchallenged heavyweight went to Brick Court instead. ‘Helen Davies properly inherits the Sumption mantle,’ says Byrne Hill. That is praise indeed considering that Brick Court also contains such standout performers as her co-joint head of chambers, Mark Howard QC and Mark Hapgood QC, who, ‘in an increasingly inhospitable litigation environment, stands out as a first class human being as well as advocate’, says Graham Huntley, founding partner at Signature Litigation.
So what makes the best stand out from the just very good? ‘A very important feature is how barristers come across to the client, their commerciality in terms of presenting things – how good they’re going to be,’ notes Caisley. ‘It surprises me there are certain sets which still think: “We are advising you, you will come to our ivory towers.”’ City litigators sometimes use beauty parades to determine how well QCs interact with clients before confirming their choice of counsel. ‘A few leading silks have a tendency to focus so intently on the requirements of the case that they fail to empathise with witnesses or clients,’ says Byrne Hill.
‘It’s remarkable that, ten years on, financial crisis work continues to be dominant. There are a very large number of cases still coming.’
Joe Smouha QC, Essex Court
More often, however, the superlatives flow. Tributes abound for Laurence Rabinowitz QC – uniformly known as Laurie – who has assumed the mantle of Lord Grabiner as the go-to silk at One Essex Court. ‘If you can get him for your hearing, then you’re doing very well,’ says Carroll. ‘He’s always top of the list: he’s got a brain the size of a planet, but he’s also incredibly user-friendly,’ adds Caisley. ‘He’s everybody’s favourite,’ concludes Huntley.
Chair of the Commercial Bar Association (COMBAR) until last July, Rabinowitz QC notes that Gloster’s review was initiated by the GC100 – general counsel and company secretaries in the FTSE 100 – and supported by COMBAR. ‘The cost of litigation in some big-ticket cases is perceived to be astronomical, largely because of disclosure,’ he says. ‘In very many cases, much of it turns out to be useless, but the fact is that disclosure has been and remains a very important part of the UK system: indeed, one of the reasons why people like to litigate here is because of the fact that, unlike in many other legal systems, you do get access to adverse documents that can be critical in ensuring the truth emerges.
‘But if it’s costing £40-50m to do the disclosure exercise, then something has to be done because we risk losing our position as a place where people wish to resolve their disputes. We have people saying they would rather take a chance in front of courts in other jurisdictions, even if the quality of justice isn’t nearly as good, simply because it’s cheaper, rather than spending huge sums on disclosure.’
‘It surprises me there are certain sets which still think: “We are advising you, you will come to our ivory towers.”’
Lawson Caisley, Allen & Overy
Disputes arising from the 2008-09 crisis have kept many silks on their feet in the intervening years. Simultaneously, litigation funding increasingly features in the market. ‘The Bar’s relationship with litigation funders is incredible – we’ve seen a real change, more than anybody anticipated,’ says Stephen Penson, senior practice manager at 3VB. ‘This is a brilliant time to be at the top end of the commercial Bar, they’ve got work coming out of their ears,’ adds Andrea Monks, litigation partner at Latham & Watkins. Together with Jon Holland, former co-head of its financial services litigation team, she recently joined Latham from Hogan Lovells.
Julian Hawes, joint senior clerk at Brick Court, says: ‘We’re still seeing a lot of banking and energy-related work: they’re the two key factors. But it’s a different game now. Our mediators have never been busier – almost everything has to go through mediators before it gets to court.’ Joe Smouha QC at Essex Court adds: ‘It’s remarkable that, ten years on, financial crisis work continues to be dominant. There are a very large number of cases still coming, not only on the banking side, but more broadly arising from the financial crisis.’
Huntley notes: ‘Joe is in the sweet spot of his career: a go-to, popular man for heavy, tough cases.’ Smouha is acting for Hellas Telecommunications in the ongoing litigation against some of the largest international private equity firms, which are represented by 4 Stone Buildings’ Robert Miles QC, instructed by Kosky at CC, and by Essex Court’s Richard Jacobs QC.
A major beneficiary of financial crisis work, Fountain Court is home to the ‘outstanding’ David Railton QC and the ‘really first class’ junior, Laura John. Their stablemate, Richard Handyside QC, also wins many plaudits: ‘He’s one of the most able: really impressive and a very good lawyer,’ says Byrne Hill. ‘Richard’s a really great guy: great lawyer, very easy to work with, very popular, a lot of tactical nous,’ adds Huntley. Instructed by Dentons, Handyside’s most recent success, in March, was acting for The Royal Bank of Scotland (RBS) in the Court of Appeal defending a key £30m Libor test case in an appeal brought by the Property Alliance Group, which was represented by Tim Lord QC at Brick Court, who was instructed by Bird & Bird.
‘Of all the foreign clients that I work for, the things that attract them to London are the absolute integrity and ability of our judicial system.’
Helen Davies QC, Brick Court
‘Many disputes came out of the crash,’ says Handyside. ‘But in terms of volume, the peak has passed.’ He suggests that despite the continuing impact of the Jackson reforms, litigation is becoming more complicated because technology facilitates discovery. ‘Cases are becoming bigger and more complex because of electronic documents, so there is scope for disclosure to become unmanageable. The commercial Court is increasingly aware of the demands, cost and resources that disclosure can suck up unless the process is very carefully managed. There is a greater willingness to entertain more targeted disclosure orders than there would have been under previous systems, and the reforms proposed by the Disclosure Working Group go much further in that direction: that’s all for the good.’
Having successfully represented the Candy brothers last year, Tim Lord QC receives praise for his grip of detail and easy manner. ‘The Jackson reforms aren’t necessarily the answer to costs,’ he says. ‘Disallowing the recovery of uplifts from defendants was not a very good idea, because it’s not seen the end of conditional fee arrangements, even though it’s had a very deleterious effect upon them. I’m not sure that damages-based agreements in their current form – the 100% ones – are quite tailored to fit the gap. What starts off life as a beautiful attempt to make things a bit more affordable can have the opposite effect.’
On the perennial subject of cost, barristers’ fees attract considerable comment. Only HMRC knows exactly how much each QC earns, but annual incomes above £2m are standard for leading commercial silks and go upwards of £4m at the very top end. To obtain ‘a much tighter grip going forward’, CC has sought to improve fee transparency significantly, according to its head of banking litigation, Ian Moulding. This centres on ‘the scrutiny that is applied when barristers come forward with fee quotes: Clifford Chance expects a great deal more granularity, certainty and, of course, flexibility in the interests of clients,’ he says.
‘It’s relevant to bear in mind that when you’re dealing with claims in the many hundreds of millions, that does mean that costs, though large, are still a small proportion in percentage terms,’ says David Foxton QC, head of Essex Court, who ‘has an excellent reputation and is a very good lawyer,’ according to a prominent litigator.
‘Laurence Rabinowitz QC is always top of the list: he’s got a brain the size of a planet, but he’s incredibly user-friendly.’
The success of individual barristers can depend on how well their clerks manage relationships with instructing law firms: they particularly dislike double booking of sought-after silks. At Brick Court, Hawes is described as ‘a true pro’ and ‘extremely courteous’. The clerks at Fountain Court and One Essex Court also enjoy a strong reputation, according to Monks. ‘Fountain Court is very good at getting their juniors in front of you, so you then build a relationship and continue to use them,’ she says. Alex Taylor, who leads the clerking team, is noted for his professionalism and integrity. So is Darren Burrows at One Essex Court who is ‘a cut above the rest,’ in the view of one fan. ‘OEC has a very good commercial bench of people, both juniors and silks,’ says Caisley. ‘They’ve got some truly exceptional juniors, genuine rising stars, such as Conall Patton and Anna Boase,’ notes Carroll.
The busiest silks are routinely engaged overseas: Rabinowitz spent the first five weeks of 2018 in Singapore, for example. ‘Business is global but the resolution of disputes is becoming regionalised with the development of hubs such as Dubai and Singapore seeking to attract work,’ says CC’s Simon Davis. A big hitter in litigation, Essex Court is particularly well known for its strength and depth in international arbitration work. The growth in Asian jurisdictions as favoured arbitral seats, notably Hong Kong and Singapore, has intensified. ‘Arbitration work has been boosted in part by a shift of the tectonic plates in world trade and the rise in the volume of business emanating from Asia, and from Africa, where arbitration is a particularly popular form of dispute resolution,’ says Smouha.
‘What solicitors are looking for is not just IQ; it is the barrister’s EQ that has become increasingly important.’
Daniel Bayfield QC, South Square
When the specialist Maxwell Chambers complex for alternative dispute resolution opened in 2010, Essex Court was the first set to establish a presence in Singapore but ‘it’s not just about Singapore, it’s about the region: India, Indonesia, Malaysia, South Korea, and Hong Kong’, says its ‘avuncular and charming’ joint senior clerk, David Grief. Others soon followed: 20 Essex Street, One Essex Court, and most recently, Fountain Court. Last November, four local barristers – VK Rajah SC, Tham Lijing, Colin Liew and Calvin Liang – became overseas members of Essex Court, based in Singapore, practising as full-time independent advocates – an independent group practice under Singapore regulations, called Essex Court Chambers Duxton (Singapore Group Practice). Meanwhile, the Singapore Ministry of Law has announced plans that Maxwell Chambers will triple in capacity by next year.
The newest addition to the Bar’s Magic Circle, Blackstone, is best known for its public law heavyweights: Lord Pannick QC, James Eadie QC and Michael Fordham QC. But, according to its respected senior clerk, Gary Oliver, most of the work handled by chambers is commercial. ‘Blackstone has very much reinvented itself over the years,’ says a long-term client. Among its rising commercial stars is Andrew Green QC, who has been instructed along with Dinah Rose QC in phone hacking and several other high-value commercial cases, including arbitrations and trials with CC.
‘Big commercial litigation has become so expensive that many clients don’t do it,’ says Green. ‘They just take the view they’d rather get on with their business and earn money rather than sue. Very big cases do still fight – like Libyan Investment Authority (LIA) and RBS – but a lot of cases that historically would have been fought are now being settled at a very early stage. I get the feeling that the commercial Bar is not as happy now as it might have been in years gone by.’
One of the biggest cases this year involves alleged bribery: Bluewaters Communications Holdings v Bayerische Landesbank (BLB). It follows the 2016 sale to CVC Capital Partners of BLB’s stake in Formula One Group, authorised by its former chief executive Bernie Ecclestone. Signature Litigation partner Simon Bushell has retained Tim Lord QC for Bluewaters; Linklaters has instructed Helen Davies QC for BLB; Robert Miles QC and Richard Hill QC (both 4 Stone Buildings) have been instructed by HSF for Ecclestone; while Brick Court’s Michael Bools QC and Fountain Court’s Bankim Thanki QC are acting for Bambino Holdings.
Of course, the biggest disputes are not confined to the Magic Circle. As an example, in a series of cases involving the LIA, prominent silks were involved from other leading sets: Philip Edey QC (20 Essex Street); Jonathan Swift QC (11KBW) as well as Adrian Beltrami QC and Robert Miles QC, who is noted as ‘a great intellectual lawyer, can think across many different areas, and is thoroughly charming’.
‘To mitigate the continued uncertainty created by Brexit and to guarantee its future success, the commercial Bar may need to join forces with the government to reinforce the message of London as a hub of expertise.’
Among the favoured commercial chambers, 7KBW is home to the ‘brilliant’ Jonathan Gaisman QC and the ‘tenacious’ Clive Freedman QC. Renowned for its insolvency work as a leading Chancery set, South Square is also making inroads against the traditional commercial players as ‘a more cost-effective alternative’ to the pricier, big brand names. Robin Dicker QC is praised for his ‘excellence in the intersection between banking and insolvency’ and being ‘as good as it gets’. Linklaters turned to South Square over the protracted litigation following the Lehman collapse, using William Trower QC – ‘an exceptionally eloquent advocate’ and Daniel Bayfield QC – ‘incredibly diligent, responsive, and commercially minded’.
Bayfield, who took silk in 2016, says: ‘Lehman is the biggest insolvency case that there’s ever been, both in terms of numbers and complexity. We’ve been in uncharted territory most of the time. The litigation arising out of the existence of a £7bn-8bn surplus, and people seeking to maximise their share of it, has been groundbreaking stuff.’
In response to the criticism levelled at some silks for still being too remote and ivory tower in their approach to clients, Bayfield underscores Caisley’s point. ‘Within a set such as this, everyone has an IQ sufficient to do the technical legal work,’ he says. ‘But what solicitors are looking for is not just that IQ; it is the barrister’s EQ that has become increasingly important. Solicitors want to be working with someone they can pick up the phone and call to ask questions or just to chew over issues or strategy with, someone who is going to be able to relate to the client and offer more than just technical legal advice. We are more and more part of a team.’
Another relatively new silk, Matthew Hardwick QC at 3VB, points to the commercial realities of the modern Bar: ‘The market is much more price-sensitive and price-savvy,’ he says. ‘Almost without exception, I find that work comes in requiring a fixed fee, whether globally or in stages: a real requirement at the outset to bite the bullet and give sensible and ultimately pretty binding estimates as to how long things are going to take. That’s a good thing. It also dovetails with the whole new cost budgeting post-Jackson: lawyers need to be much better able to give proper client estimates at the outset, both for the purposes of the client but also so that solicitors can take a realistic view as to what the matter’s going to cost.’
‘When I came to the commercial Bar, I was one of very few women in my intake. I’m now leading a number of excellent female juniors. I am privileged to be working with so many talented men and women.’
Sonia Tolaney QC, One Essex Court
Rabinowitz apart, few barristers publicly express any fear that the 31 courts in the £300m Rolls Building, with its three customised super courts, will not be fully occupied with big-ticket commercial disputes for many years to come – even as international competition increases. ‘It is going to be a challenge for the courts in Singapore, Dubai, or the English-speaking court in Paris to match the pre-eminent reputation of London,’ says Sonia Tolaney QC at One Essex Court.
Before the Rolls Building opened in 2011, Plan for Growth: Promoting the UK’s Legal Services Sector was published by the Ministry of Justice and UK Trade & Investment (now the Department for International Trade), promoting London as an international ‘hub of expertise’. To mitigate the continued uncertainty created by Brexit and to guarantee its future success, the commercial Bar may need to join forces with the government to reinforce that message in earnest.
Although reports of the death of the English commercial Court may be overblown, a creeping decline does not seem quite so fanciful – unless those top legal brains deploy some of their advocacy skills in the national interest. ‘The commercial Bar has a role to play in pushing London as a continuing centre of excellence for dispute resolution,’ says Handyside. ‘That’s important for the UK, and for the economy.’
An adversarial system: women at the commercial Bar
‘When I came to the Bar, I was told that the commercial Bar wasn’t a place for a woman,’ says Helen Davies QC, co-head of Brick Court. ‘But it’s changed dramatically.’
More women than men now join the Bar and they are well represented in the top commercial sets with several female juniors regarded as being at the very top. The number of female silks has also grown, but the names that appear in the directory rankings tell another story. Of the 33 silks ranked by The Legal 500 in the top two bands for commercial litigation, Davies QC is the only woman. Female representation does increase in the third and fourth bands yet, even here, men still predominate to a large degree.
Of course, these rankings are determined by recommendations given by instructing lawyers in dispute resolution departments. Most of those giving them are men – as a practice area, dispute resolution remains a stubbornly male preserve in most City law firms. Attitudes, however, are changing. ‘Clients want to know which female barristers we are working with and to ensure that they are getting fair exposure to work opportunities,’ notes Simon Davis, litigation partner at Clifford Chance (CC).
‘Meritocracy is incredibly important for most women, particularly for women at the Bar; none of us want to be perceived as having been promoted because of our gender,’ says Davies QC. Meritocracy matters because barristers are self-employed: as the old saying goes, they are only as good as their last case.
The much-lauded Sonia Tolaney QC moved from 3VB to One Essex Court in 2016. ‘I have been fortunate to have superb support at One Essex Court; the juniors are outstanding,’ she says. Jon Holland at Latham & Watkins notes: ‘I didn’t use OEC that much historically but when they took Sonia from 3VB that really changed our relationship: she is very good at bringing on juniors.’
Tolaney receives widespread praise from firms that instruct her. Often appearing with Richard Handyside QC as a co-defendant for banks, she has been acting for Deutsche Bank in various matters – instructed by Allen & Overy, Freshfields Bruckhaus Deringer and Slaughter and May – and for BNP Paribas in the Golden Belt appeal, instructed by CC.
‘When I came to the commercial Bar, I was one of very few women in my intake: I was led early in my career by Liz Gloster, which was an inspiring experience,’ she says. ‘I’m now myself leading a number of excellent female juniors both from within my own chambers and from other chambers. I am privileged to be working with so many talented men and women.’
Her advice to young female barristers? ‘To know that they can make it to the top of their profession being exactly who they are and relying on their own merits. Talent is recognised by clients, solicitors, barristers and judges alike. It is good to see that the number of women rising through the ranks is increasing and that they are succeeding and thriving at the Bar alongside their male peers.’