The future of litigation
If 2008 was the year of Buncefield and 2009 the year of professional negligence, then 2010 is the year of bank-on-bank litigation.
The Lawyer’s nomination of the top 10 cases of the year has always been a fascinating mirror of commercial activity; hence the messy Russian oligarch dispute, a law firm prepack administration claim and the most important libel case for some time, the appeal of a Mr Justice Eady judgment.
And, with accidental but wholly beautiful timing, The Lawyer’s top 10 coincides with the publication of the long-awaited Jackson review of civil justice costs this week.
A decade after Woolf, there are reforms to be made, chief among them being a fully resourced and supported judiciary. But that costs money, so we can consign that to the wishlist.
Given that dispute resolution has been the backbone of most law firms’ business this year, it shouldn’t just be litigators who are interested in the Jackson report; over the past five years fees generated by the top 10 litigation practices in the UK have leapt by 50 per cent, from £930m to £1.4bn. That is an expanding market, and one that validates London’s central place as a jurisdiction in which to do business. So just watch: Jackson is going to be a big story across the non-legal business media (and The Lawyer will, of course, be devoting plenty of space online and in print to the reaction).
Yet it is absolutely absurd that in a profession teeming with educated professionals, in which the concept of thought leadership has become so valorised, that no one has really taken the high ground on litigation costs. We’ve been contacted by rafts of lawyers lining up to comment on the implications of the Jackson report this week, but when it comes to aligning their own brands with eye-catching models of business, litigators haven’t seized the day.
There are some exceptions: Addleshaw Goddard and Mishcon de Reya have embraced litigation funding, while Pinsents has outsourced low-level litigation due diligence to South Africa. But on the whole the opportunity to prove to clients that lawyers actually care about keeping legal costs down has been wasted. A little bit of proactivity could go a long way.
Readers' comments (3)
Julian Johnstone | 11-Jan-2010 10:59 pm
There is no reason why litigation lawyers cannot offer fee caps or other fee arrangements to clients. This model works for transactional work and it can work for litigation fees as well.
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Anonymous | 12-Jan-2010 1:56 pm
Most good litigators care deeply about keeping their client's costs down, whilst achieving the best result possible for the client.
Costs capping can work but only if done sensibly, and when it caters for the unforseen costs which are usually incurred when one party takes up a fresh issue. The main problem with litigation is that not everything can be anticipated in the litigation process, whereas in transactional work most tasks can be forseen and the amount of time to carry out the work accurately estimated.
On the whole the system that we have at the minute works. It perhaps needs a little fine tuning, and the ridiculous guideline hourly rates need to be scrapped and replaced with a requirement that the hourly rate is reasonable (that will improve recovery and make for a happier client). But the system in general works to discourage meritless litigation and the racking up of fees.
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Ian Silverstein | 25-Jan-2010 9:18 am
4 years ago I had my house blown up whilst I was in it by the biggest explosion since the end of the war, I lost everything I had, my home, all contents and nearly lost my life.
The Oil company responsible for the explosion have been found guilty of negligence and all other claim against them.
After 4 years and having seen how the legal system works I have had nothing in compensation and the legal firms representing myself and the oil company have had fees of over £500,000 paid. IS THIS JUSTICE ?
For further information see www.iansilverstein.com/buncefield
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