US firm Cohen Milstein Hausfeld & Toll claims that only a handful of UK firms could take on the might of the US legal world when it comes to winning instructions on the claimant side of class actions.
Anthony Maton, a dispute resolution partner in Cohen Milstein’s London office, says there is a “paucity” of UK firms that could run claimant actions because of problems of conflict.
“We’ve seen Clyde & Co dipping their toes into the water but whether they can sustain that will be something that we’ll have to see,” said Maton in an interview for The Lawyer Podcast (www.the lawyer podcast.com).
“Edwin Coe, however, would be an obvious choice, with its experience in the railtrack litigation,” he added. “We’ve also seen the likes of Irwin Mitchell and SJ Berwin coming in on the claimant side.”
Maton said he expects there will be a trickle of other US firms coming into Europe to hoover up any claimant work. He believes UK firms are likely to have more success on the defendant side of class actions.
“UK firm success on the defence side would depend ironically almost entirely what we as claimant lawyers do,” said Maton. “The number of large firms that have announced the formation of defence groups cannot do anything without firms such as ourselves successfully bringing collective actions.”
The one thing that Maton feels UK firms have over the US is a cultural advantage.
“The battleground between UK and US firms is culture against experience,” said Maton. “The experience in running large-scale actions almost sits exclusively with US firms.
“In terms of experience everything sits with the US. Having said that, there’s a large cultural difference in the way the US and Europe litigate.
“The process in the States, for instance, with contingency fees, juries and triple damages, means a very different approach. It’s an approach that we believe would not work in the European arena.”
The increase in regulatory work, particularly from the European Commission in the past three to four years is what Maton puts down to the ever-increasing interest in class actions.
Maton said the main barrier standing in the way of bringing in collective redress at the moment is the lack of a private enforcement regime.
“What has become apparent to the Commission is that private enforcement on the cartel side is extremely important for a competition regime that works and is enforceable,” said Maton. “But the private enforcement regime as it exists at the moment is not giving that right.
“In the past three to four years we’ve seen, on average, about eight to 10 decisions of the Commission where they’ve found serious price-fixing cartels, but in that time we haven’t seen one mass claim in Europe, as the framework just isn’t there to support it.”
Maton, however, believes that with the Commission and the Office of Fair Trading pushing for collective relief, it will not be long before there is a workable regime.
To hear more from Anthony Maton, listen to the October edition of The Lawyer Podcast.