The law of the land
22 January 2001
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14 August 2013
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24 January 2014
"I really am just an environmental litigator who acts for industrial clients - and definitely not Greenpeace!" exclaims Paul Bowden, partner in charge of Freshfields Bruckhaus Deringer's environmental practice.
Bowden is probably most renowned for representing corporate companies in "toxic tort" cases such as IATA (the Gatwick noise case), Sellafield v Dounray, the Waltham Abbey cancer cases, Merlin v BNFL (the first nuclear case about a contaminated house) and generally mass nuisance cases where some physical injury is alleged in relation to quality of life. One example of a landmark case was the People of Docklands cases during the development of Canary Wharf. "The actions were primarily for noise and particulate nuisance. It turned into a test case as to whether or not you could claim for interference to your TV reception, and the answer to that is: it depends," he says.
But since becoming a partner in 1987, Bowden has seen many changes in his work, and in public law in general, not least the effect of stricter regulation on his clients' industries. "There's been fascinating progress. Even though the clients remain the same, the type of work changes radically," he says. Now more concerned with the operational side of his clients' activities, Bowden's department, which includes four partners and 20 associates in London, spends a lot of time undertaking risk management. This could involve securing permits to build and operate plants, checking health and safety, employee health management systems and looking at the risk that might be generated when products go on sale. According to Bowden, the recent merger of Freshfields into its current form has complemented this side of his practice enormously. "That's very much the way in which the Bruckhaus practice has been structured, so it's an easy and interesting process to merge the two," he claims. The public law side of the firm is now made up of 30 partners and 60 associates across Europe, for whom he is jointly responsible with Dr Kurt Heller, who is based in Vienna.
Brought up in Bolton, Lancashire, Bowden did his law degree at Bristol University and after his Law Society finals went straight to Freshfields, where he has stayed for the past 23 years, including a two-year stint at the Singapore office. "Since I started work as a qualified lawyer, most of my work has been tort-based as opposed to contract-based," he says. "Then you build up a relationship with clients - in some ways these relationships are more important than the relationship with the firm itself."
One major change has been the absorption of straight environmental claims into product liability claims. Bowden defended Norweb and the National Grid Company in the Studholme case, where it was claimed that electricity distribution caused childhood leukaemia. Another field where the effect of the precautionary principle is making a major impact on his practice is in telecoms, where claims of tumours and radiation have been flying around for quite some time.
These cases were struck out for lack of scientific evidence. "Unless you enjoy the science, it's not a subject you should be getting into," says Bowden. "Whatever type of case it is, it stands or falls on its evidence, which will almost always be scientific." He recalls another such example, when Mohamed Al Fayed tried to stop planning permission for a Mercury Telecommunications base station near the M25 that he alleged would affect his health.
Bowden says his large nuclear power practice mirrors the move away from civil litigation into implementing new regulation and managing risk. "The thing I've found interesting over the past few years is that public, administrative and regulatory issues have become a much more important part of the work," he says. He blames this on an increasing amount of legislation, both from the UK and Europe. "Although I think it's mostly because of the increasing availability of judicial review."
This increased willingness by the courts to grant leave for judicial review proceedings has, according to Bowden, "mirrored public demand for greater accountability". Conversely, increasingly far-reaching regulations have meant more companies have to challenge refusals of permits. "There's the mixture not just of science and law, but of policy too. If you challenge a regulator, you've got to suspend your civil litigation Rottweiler instincts, because you have to persuade the judge in the Divisional Court that the [original] decision-maker has gone down the wrong road. That involves a great deal of care and no hyperbole." Bowden says it pays to be diplomatic because "the judges are as concerned about the proper implementation of policy as they are about the vindication of a person's rights".
While Bowden says the attractions of appearing on the plaintiff side in multi-party actions "are evident", he confesses that he is not "a closet environmentalist". "To be professional, there's a suspension of personal judgement," he states. "But if I'm defending a company being sued by an activist group or if there's a permit to discharge something into the environment that the company is suing for, it's my duty to be the first person having looked at the evidence to tell the client whether they should settle. I'm not there to fight cases that companies should lose."
Although Bowden might seem to be taking the industrial buck, there is a lot more to his work than meets the eye. Presumably thanks to his great expertise in the area, Lord Woolf summoned him to his working party on multi-party actions, where he met Martyn Day, who he normally meets only in an adversarial context. "You do tend to have battle lines between firms more sharply drawn in this area than in almost any other, because you get the same people coming up time and time again on the other side," Bowden explains. "I have a huge amount of time for Martyn, but we have a pact that we won't deal with each other socially because it would be misunderstood by our clients. This was one of the few places we could get together, if not with the same mind, then at least not on opposite sides. I'm sorry there aren't any more reform committees to sit on."
Despite putting off his application for high rights "virtually every month", due to "too many clients and not enough time", Bowden has had plenty of opportunity to hold the floor. Currently non-executive chairman of Nottingham Law School, he has sat on the board there for three years and held many civil litigation courses. He is also chair of the university's remuneration committee. But he is fine with this, and admits to not doing too much except for his work at Nottingham and Freshfields, with the odd Bolton Wanderers match thrown in. Unlike some lawyers more noted for their extracurricular activities, Bowden claims to find all the excitement he needs at work.
At 45, Bowden reckons he's got another 10 years of work to do before retiring gracefully. But before that, he has a clear and no doubt laudable aim in mind, which is to ensure his group's ascendancy. "I'd like to see major multinationals looking for single practices to provide guidance and manage industrial risk right through the process," he says. "There isn't a law firm in Europe that actually offers that, but I think there will be, and frankly I want to make sure that ours is the first to do it."