The world's favourite lawyer
21 August 2000
It exists for a very few people, but it is true that the range of work is very wide. One of my last cases at the bar involved the collapse of the Heathrow Express tunnel. I hadn't done much construction work but I think I got the tunnel case because one end of the tunnel was at Heathrow, so they thought I'd be suitable.
Who are the aviation specialists now that 5 Bell Yard has split?
I wouldn't say there is a single centre of excellence any more, although there are one or two very good people.
What type of work is going to the aviation bar?
Specialist work, Civil Aviation Authority hearings, a bit of liability work in terms of cargo losses, some convention stuff, and quite a lot of foreign litigation. There are many forum shopping issues. The London insurance market is still very, very big in aviation terms.
What makes a good aviation solicitor?
The danger with some of the very big firms of solicitors is that they find it difficult to be aviation specific. If you choose a big firm you need to be careful. We use Slaughter and May and Wragge & Co which are specialist and good.
What advice would you give to a barrister who wanted to build an aviation practice?
Put aviation work first. Don't agree to do a bit of shipping and a bit of reinsurance. The aviation community, particularly the insurance community, needs to know someone is their man. You also have to go to the conferences. Barristers are very bad at "wasting their time". The number who will pay £1,000 to go to a conference is very small. They say: "I could be in court earning £1,000". That's short term - the contacts you make at conferences matter and the evidence of commitment means you stand out.
How do you think aviation law will develop?
The liberalisation of the European market will lead to a good deal of legal work. The trade block issues that will arise between the EU and European countries will give rise to many issues. There will also be work evaluating the new products that are arriving on the market. There's the suggestion that a double jumbo might be built, which is going to lead to an exciting market in new aircraft. In the long term, the industry is going to see the growth of low cost carriers and the homogenisation of aircraft fleets. People are going to want to fly to more places and crowded skies are going to lead to much more spending on environmental concerns.
What do you think of current proposals to privatise Air Traffic Control?
I'm wholly in favour of them. The area needs investment, and the best way to get investment is by bringing in the private sector.
Before moving to BA, you represented parties in the Herald of Free Enterprise and Piper Alpha Oil Rig disasters. What is your opinion of the proposals to reform the law of corporate manslaughter, making individual directors liable for health and safety failings in their companies?
It's very difficult to assess how somebody was behaving before an accident after it has occurred - true hindsight is very difficult to achieve. You'd have to make sure directors had really done something wrong which wasn't simply attributed to them through some doctrine of constructive knowledge. By making them directly liable you wouldn't make them more concerned about safety, you'd send them to another business. These people are disciplined by their professional skills and their own morality.
You are responsible for BA's safety department. What did you do in the aftermath of the Concorde crash?
We evaluated absolutely everything on our own Concordes to make sure that they were safe. I'm not the line manager responsible for that, it was dealt with by operations and engineering people. The safety audit department ultimately reports to me. After the crash, all the people with relevant skills went to our reaction centre, which is chaired by our director of operations, to pool their expertise. They decided to cancel two immediate Concordes while facts emerged, then they decided to go ahead with flights. I suppose that if there had been anything amiss with that decision-making process I might have become involved, but there wasn't.
BA was publicly very upset when it was fined over payments to travel agents. It said that its practice was not out of line with other European carriers and considered taking legal action against them. Is the air travel industry more cut-throat than others?
One of the things that a law maker has to weigh up is whether a sentence should have a deterrent effect. One of the interesting things about the deterrent element in sentencing is that a sentence is unjust to precisely the extent to which it is deterrent. So if you normally give a chap 10 years for an offence, it's a bit hard to say: "Well, there's a lot of this going on so let's hang him."
What do you think about the way in which the EU is intervening in the aircraft industry at the moment?
The EU is a thoroughly good thing. It's the job of British industry and the British Government to make sure Europe works. I think EU interventions are favourable. When you create trade blocks you're bound to create frictions. We have to try to manage the frictions in the best way we can.
What are the most pressing competition issues in the air travel industry at the moment?
The liberalisation of intercontinental air traffic. Finding a way of managing slot restraints to enable network airlines to grow, and to enable the regions to be properly served.
Bus and train services to local communities are disappearing and the same thing cannot happen to the airlines. Sometimes people think that you need a point to point journey for this. But that's not the only game in town. You need networks. You need to have a structure whereby people are brought to a place and then taken on to the place they really want to go to, so that there are enough people to pay for the service. It's going to be quite a battle for the regulators to ensure that this can be made to work.
The UK is one of only four countries without an open skies pact with the US. Do you think that is going to change?
The US is desperate to get into Heathrow. We would welcome them, but not if we can't get equivalent and decent access into the US. It's quite ridiculous for the Americans to have all that hinterland to feed their traffic across to us and for us not to have their hinterland to feed our traffic into. There's a difference between compromise and appeasement.
Organisation: British Airways
FTSE 100 ranking: 73
Market capitalisation: £4,217m
Legal capability: 14 lawyers
Legal director: Stephen Walsh
Reporting to: general counsel Robert Webb QC
Main location for lawyers: Harmondsworth, Middlesex
The team: Stephen Walsh heads a rapidly growing team. Five new junior recruits are on their way, which will take the number of in-house lawyers to 19 by the end of the year, including two in New York. The department now has seven support staff.
The work: Walsh's department tries to keep the most sensitive and strategic work in-house. The oneworld alliance agreement was handled entirely in-house, as was the abortive profit-sharing venture with American Airlines. However, for the current complex merger negotiations with KLM, BA is calling on the expertise of Slaughter and May.
The panel firms: BA instructs Bristows, Garretts, Linklaters & Alliance, Simmons & Simmons, Slaughter and May, Wragge & Co and Sullivan & Cromwell in the US. For employment matters it uses Denton Wilde Sapte and Osborne Clarke. BA has no plans to revise its panel.
Recent legal issues: Last year, BA's alliance with American Airlines fell through as European regulators, US trade negotiations and Virgin Atlantic raised fears about the creation of a monopoly. EU competition authorities began an investigation into commission payments to travel agents by European flag carriers, after BA appealed against its fine of euro6.8m for using its incentive schemes to abuse its dominant position in the UK market.
This year, the Appeal Court ruled that BA and two other airlines had attempted to mislead consumers by splitting passengers' service charges from air fares. The Association of Travel Agents announced that it would take legal action to attempt to prevent BA from selling tickets online. And BA is currently in merger talks with KLM Dutch Royal Airlines. It is likely that, before permission is given, European regulators will force the airline to give up slots at Heathrow.