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4 August 2014
Skadden Arps Slate Meagher & Flom has become the latest US firm to attempt a foray into the UK and European litigation markets. As revealed by The Lawyer (8 October), Paul Mitchard, former head of litigation at Simmons & Simmons and more recently with Wilmer Cutler & Pickering, joins the firm with the task of recruiting a five-strong team and to assess the needs of Skadden's European offices.
By and large - and Mitchard's own practice bears this out - US firms are gunning for major international arbitration work, and why not? International Chamber of Commerce statistics show that its caseload grew by 45 per cent in the 1990s, while the London Court of International Arbitration has seen its own docket snowball, more than doubling in the last five years.
Slowly but surely, however, the US practices are beginning to make a showing in mainstream UK litigation. Firms such as Covington & Burling, McDermott Will & Emery, Morgan Lewis & Bockius, Weil Gotshal & Manges, Altheimer & Gray and Coudert Brothers all now have claws in the domestic market. Mitchard apart, the US firms might not be making many big-name signings to their litigation departments, but recruitment continues at a lower level with either senior associates or junior partners. The result is that several leading chambers - although by no means all - report that US firms between them now contribute over 5 per cent of their turnover, or as much as £1.5m in fees per set. It is hardly time for Herbert Smith to throw in the towel, but five years ago US firms simply did not exist on chambers' radars, so this is a development of some significance.
It is proving particularly beneficial to the junior bar, which has long fretted over its future income. Much of its work from the UK's leading firms has dried up, but US firms lack their capability and so are effectively subcontracting a lot of work out to the junior bar, which is hardly complaining.
Unilever's action against Merrill Lynch over alleged mismanagement of £1bn of its pension fund continues in the High Court this week, pitting heavyweight silks Jonathan Sumption QC against Ian Glick QC. Brick Court Chambers' Sumption, who Gordon Pollock QC once wickedly described as "the self-professed cleverest man in England", continues to represent one-third of the leading triumverate of commercial silks in practice today, but the search continues for those capable of assuming their mantle. Generally considered to be in with a shout are Serle Court Chambers' Michael Briggs QC, 20 Essex Street's Iain Milligan QC, Brick Court's Mark Hapgood QC, One Essex Court's Mark Barnes QC, and with Lord Goldsmith now out of the picture, Fountain Court has Michael Brindle QC and head of chambers Anthony Boswood QC to nurture. But in Glick, Lord Grabiner's One Essex Court has another contender, albeit one who is currently an outside bet. His performance in Unilever will therefore be watched with interest. A former chairman of Combar, Glick is just one reason for the continuing tale of One Essex Court's remarkable revival. By September, the set had already equalled last year's turnover and should easily clear £30m by the end of the year.
Lawyers in the Barings litigation are also back in the High Court this week, when it is hoped that details of the last-ditch settlement between Barings' liquidators and Coopers & Lybrand (now PricewaterhouseCoopers) can be hammered out.
A number of applications will also be made in relation to whether a streamlined case will proceed with one defendant, Coopers' fellow auditor Deloitte & Touche. With around £150m plus interest in dispute, Deloitte's liabilities are much less than Coopers', but this will again pit two of the bar's big hitters against one another. For the liquidators it is Brindle, instructed by Ashurst Morris Crisp, up against Jonathan Gaisman QC of 7 King's Bench Walk, instructed by Clifford Chance, for Deloitte.
Barings and Unilever are just two examples of the major pieces of litigation currently on offer to the bar's big guns, and with an army of counsel on standby for Railtrack, it is no wonder there are some happy clerks around the Inns at the moment.