Perfect storms – Cases of the year

Sarah Parkes

Cash-rich funders; conflict-free boutiques; class actions aplenty. While some predict another economic downturn on the horizon, providing an uptick in conventional litigation work, these themes have defined the more eye-catching disputes of the past year. Add to the mix an increase in cyber-related litigation and accusations of fraud and regulatory missteps against some of the leading firms’ key institutional clients, and a kinetic disputes scene emerges.

Many of these developments are US imports, particularly class actions and a more aggressive approach to accusations of fraud. These US-style claims are often being pursued by disputes boutiques increasingly allying themselves with external funders. As a result, the stranglehold City bluebloods have over big-ticket litigation has loosened, while some feel only two or three of the smaller players are of sufficient quality to cause real disruption (see our boutiques report). Continue reading “Perfect storms – Cases of the year”

‘Serious loss of morale’: The recruitment crisis at the bench deepens

Lord Dyson

Cumulative cuts to the Ministry of Justice (MoJ) budget over the past decade, amounting to 40% in total, have had a profound impact on the UK’s publicly funded legal system. One corollary is that there are too few senior judges. First and foremost, this is because insufficient candidates of quality have applied to become a High Court judge.

‘There seems to be a continued problem with recruitment, not in terms of quality, but in terms of numbers,’ says former chair of the Bar, Chantal-Aimée Doerries QC. Recognised as a perennial problem by the government, a streamlined application process was introduced last year. But this has done little to help. Vacancies remain across all three divisions: Queen’s Bench (QBD), Family and Chancery. Continue reading “‘Serious loss of morale’: The recruitment crisis at the bench deepens”

Financial Regulation – Increased focus on culture raises question: is everything OK?

Our second one-day summit dedicated to banking disputes and regulatory actions returned in February with a host of sponsors, speakers and more than 150 guests in central London. Backed by a string of top names in contentious banking work, including headline sponsor White & Case, as well as Freshfields Bruckhaus Deringer, Boies Schiller Flexner, One Essex Court and Norton Rose Fulbright (NRF), the event was guaranteed a heavyweight line-up.

There was no mistaking the core theme for the day, which White & Case banking disputes chief John Reynolds set out in his opening remarks. Arguing that cultural issues sat at the heart of the global financial crisis over a decade ago, Reynolds gave a jaded assessment of the progress since, despite the string of post-crisis reforms, like the Senior Managers Regime, ringfencing and legislation on bonuses. Continue reading “Financial Regulation – Increased focus on culture raises question: is everything OK?”

Litigation support – The right-hand men (and women)

Man with scaffolding

As the forum of choice for international litigants, London continues to enjoy an unparalleled reputation for high-value dispute resolution. The quality of justice delivered by its commercial courts is underpinned by the calibre of specialist independent judges and the lawyers that work in them. But beyond the courtroom door, a diverse range of specialist litigation support providers routinely help to bolster the case being put forward by the legal teams on both sides.

From asset tracing, e-discovery and forensic accounting to third-party funding, PR and witness training, many of these services are now increasingly central to formulating a successful dispute strategy. Critically, the level of sophistication required frequently goes beyond the capacity of in-house expertise available to general counsel (GCs), or even to the largest law firms. Continue reading “Litigation support – The right-hand men (and women)”

Still punching – Can boutiques keep moving up a weight class amid mounting competition?

‘Gone are the days where the client would just default to a certain adviser because that is who it has used all along,’ says Signature Litigation partner Daniel Spendlove. ‘Corporates, especially one-off distressed clients, are thinking about who they use carefully and that puts firms like ours in a strong position.’

Boutiques have been a striking feature of the disputes landscape for more than a decade. The rhetoric extols the virtues of the stripped-back model, unconstrained by the extra overheads that come with having multiple practice areas, and the conflict-free feature allows full-service firms to feel confident in referring disputes work to non-competitors. ‘What clients get is a focused offering. We’re not cross-selling other departments. We are simply here to handle a case,’ adds Spendlove. Continue reading “Still punching – Can boutiques keep moving up a weight class amid mounting competition?”

Arbitration – ‘There’s a new generation coming’

Kenneth Beale

‘Arbitration is the Savile Row of dispute resolution. It’s not the M&S off-the-rack suit, you can create a bespoke arbitration clause that does almost anything you want it to do,’ said Kenneth Beale, an arbitration partner at Boies Schiller Flexner in London. Is it then any surprise that financial institutions are increasingly opting to use arbitration for dispute resolution?

Beale was one of a host of top names speaking at Legal Business’ 2019 International Arbitration Summit in November when he made that comment, setting out how much things have changed in the financial services sector in recent years. Continue reading “Arbitration – ‘There’s a new generation coming’”

Market Report: Fraud – Sleight of hand

Criminal investigations aside, the rise of cyber crime and forum shopping means the UK is a perennially popular location for resolving civil fraud disputes. Dominic Carman reports

According to the Crime Survey for England and Wales, fraud offences now constitute nearly half of all recorded crime. Last year they increased by 9% to breach the four million mark, although the survey suggests that fewer than 20% of frauds are ever reported. Simultaneously, organisations that investigate large-scale fraud, such as the National Crime Agency and the Serious Fraud Office, are routinely regarded by commentators as underfunded, understaffed and – at times – unable to cope. Continue reading “Market Report: Fraud – Sleight of hand”

Market Report: Tax Litigation – Introducing the hard line

Post Brexit, HMRC is renewing its litigation focus on corporate tax evasion, enhanced by new powers to investigate corporate criminal offences. Dominic Carman reports

Like stargazing through a telescope, tax disputes look back in time. The typical gestation period between issues first catching HMRC’s attention and a dispute reaching court can take up to five years, sometimes longer. Nick Skerrett (pictured), head of contentious tax at Simmons & Simmons, says there has been a maturation of the governance processes within HMRC. ‘It is starting to bed down and HMRC has become more adept in its approach to working out those cases that it ultimately wants to come before the courts from those that it does not,’ he says. Continue reading “Market Report: Tax Litigation – Introducing the hard line”

Market Report: Construction – Building a case

Despite efforts to minimise the level of construction disputes, adjudication, litigation and arbitration are all flourishing. Dominic Carman reports

While there are many relevant statutes and a significant body of case law, construction disputes benefit from having a single overarching piece of legislation: the Housing Grants, Construction and Regeneration Act 1996, commonly known as the Construction Act. In some recent decisions, judges have increasingly endeavoured to broaden the ambit of the act, which was last amended in 2011, to capture a wider range of construction activities as the sector continues to recover from a turbulent political period. Continue reading “Market Report: Construction – Building a case”

Market Report: Intellectual Property – A delicate balance

With global hubs fighting to attract big-ticket IP disputes, the London courts are facing a tougher challenge than they are used to. Dominic Carman reports

IP litigation continued apace in 2019 with a multiplicity of disputes. ‘Unlike everything else in relation to Brexit, certainly in the life sciences space and in patent litigation, things carried on pretty much as normal and we had quite a lot of cases,’ says Charlotte Weekes (pictured), contentious IP partner at Pinsent Masons. ‘People talk about some jurisdictions being pro-patentee or pro-challenger: the UK courts seem fairly well balanced.’ Continue reading “Market Report: Intellectual Property – A delicate balance”