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This time last year, the biggest piece of litigation in the English courts was the Bank of
Commerce and Credit International (BCCI) trial, which opened in January 2004. Twelve
months on, nothing has changed. Lovells and Freshfields Bruckhaus Deringer are still tied
up acting for the liquidators of BCCI and the Bank of England respectively. Gordon Pollock
QC's record 79-day opening statement on behalf of the liquidators has been trumped by
Nicholas Stadlen QC's 119-day marathon, which concluded in May 2005.
Other cases have opened and closed while BCCI has been rumbling on in Court 73. Nearby,
in Court 76, the Equitable Life negligence case has provided plenty of drama. Herbert Smith, representing Equitable, came under attack from defendant solicitors Barlow Lyde &
Gilbert over its disclosure exercise for the case, and in July was forced to drop a large portion
of its claim.
As ever, the UK courts made a number of crucial decisions this year. In December 2004 the
Law Lords ruled on the detention of terrorist suspects in the Belmarsh appeal, finding against
the Government. That case was spearheaded by the indomitable Gareth Peirce of BIRNBERG
PEIRCE, ably backed up by a counsel team led by Matrix Chambers' Ben Emmerson QC.
The Lords also turned their attention to matters fiscal. The July 2005 ruling over bank
debts in Re Spectrum Plus resolved many questions that had been troubling insolvency
practitioners over the order in which creditors should be paid. Allen & Overy (A&O) acted
for the unsuccessful party, National Westminster Bank.
Lower down the courts' pecking order, the UK saw its slice of Enron action as Slaughter and May successfully defended JPMorgan Chase and Jersey special purpose vehicle Mahonia
against allegations of links to the collapsed energy giant.
Aside from the big cases, the courts were fairly quiet, resulting in a mixed year for City
litigation practices. Most increases in revenue were small, and several firms saw a drop in
income from contentious work.
One of those was Clifford Chance. Litigation revenues fell from 24 per cent of total
turnover in 2004 to 20 per cent in 2005, equating to a £42m drop in monetary terms. This
was directly attributable to the shrinkage of the US operation and the closure of the West
Coast offices. But the 87 partners brought in a healthy £2.1m each. The firm remains top of
the litigation table due to its size, but the gap is closing between it and the chasing pack.
Clifford Chance's biggest case of the year was the split capital trust investigation conducted
by the Financial Services Authority (FSA). The firm, initially acting for Collins Stewart but
later taking on a wider role for a group of investment trusts, negotiated a settlement with
the FSA that prevented the need for full-blown litigation.
Coming up behind Clifford Chance in the table is Freshfields and Lovells, although in
reverse order from last year, with Freshfields second place on the table. It was a good year for
Freshfields' contentious practice. Both litigation income and revenue per partner (RPP)
increased, and dispute resolution now accounts for 16.6 per cent of the firm's turnover. Despite
this, Freshfields did not feature in many of the year's big reported cases save for the House of
Lords privilege hearing in relation to Three Rivers District Council & ors v Bank of England. The
Law Lords indicated in July 2004 that Freshfields would win the case. In November they
handed down a full judgment which was applauded as safeguarding legal advice privilege.
On the other side of that case was Lovells, which continues to have a healthy presence
in the litigation market. Contentious work accounts for 30 per cent of turnover, meaning
the income from litigation dropped slightly to £111m last year.
Bringing the BCCI claim and its spin-offs is taking up a fair chunk of Lovells' time. As well
as Three Rivers and the main BCCI trial, the firm fought a related claim against the Bank of
India. In June 2005 the Court of Appeal ruled in Lovells' favour, overturning an earlier High
Court judgment won by Penningtons for the Indian bank. Another claim, against the Bank
of America, settled in January 2005, with Mayer Brown Rowe & Maw on the other side.
However, Lovells also has a role in the ongoing measles, mumps and rubella (MMR) vaccine
litigation, acting for pharmaceutical company Merck in defending claims brought by parents
of children allegedly affected adversely by the vaccine.
Maintaining its place as the fourth-largest litigation firm in The Lawyer UK 100 Annual
Report is Herbert Smith, although litigation as a percentage of the firm's total practice has
dropped for the second successive year. The end of the last financial year was also the end
of David Gold's reign as litigation head, as he moved on to become the firm's senior partner,
with Sonya Leydecker taking over his role.
Although less crucial to the firm as a whole than it used to be, Herbert Smith's dispute
resolution team is still regarded highly and the firm continues to be involved in major cases
such as the IP dispute Cambridge Antibody Technology v Abbott Biotechnology.
At the beginning of the current financial year, Herbert Smith brought in Murray Rosen
QC and Ian Gatt QC to kickstart its `in-house chambers'. The effect this will have on the
litigation practice is yet to be seen.
Other City firms have slipped down the litigation table this year. A&O and Linklaters
are less visible than their magic circle competitors, with a much smaller percentage of turnover
coming from contentious work. A&O's biggest case, National Westminster Bank v Spectrum
Plus, reached two milestones in the last 12 months, being heard in the Court of Appeal and
then the House of Lords.
Linklaters, meanwhile, derives less than 10 per cent of global income from litigation, but
with a team of just 31 partners RPP is high, just behind that of Clifford Chance.
The smaller City firms had mixed fortunes over the year. CMS Cameron McKenna could
not consolidate on last year's superlative performance, and litigation revenue dropped both
as an absolute figure and as a percentage of total turnover. That meant revenue per litigator
dropped too, although it is still above 2003 figures at £1.3m.
Simmons & Simmons, meanwhile, had a brilliant year. The litigation department now
brings in 27 per cent of the firm's
total and was up £12m from 2004.
RPP broke through the £1m barrier
for the first time too, as the team
began recruiting again after a short
hiatus. International work, particularly
that related to trusts, was up.
In April 2005 Simmons recorded a
significant House of Lords victory for
the Law Debenture Trust Corporation
against the Concord Trust (advised
by Bingham McCutchen) in a
bondholder dispute.
It was a good year for the
insurance-heavy firms. Although
none bring in as much RPP as the
more commercial litigation-focused
practices, firms such as Irwin
Mitchell, Clyde & Co, and Holman
Fenwick & Willan reported good
years overall. And a large proportion
of income for each firm comes
from litigation.
Irwin Mitchell's turnover is
boosted by a hefty and successful
personal injury (PI) claims department,
and although 80 per cent of
total turnover comes from resolving
disputes, the firm has just 63 litigation
partners. Cases include a challenge
to a European directive on
vitamin supplements.
Clyde & Co' practice was strengthened
during the year by several hires, including former Clifford Chance litigation partner Stephen Lewis, who joined the firm as
an insurance arbitration consultant. The firm still succeeded in lifting revenue per litigation
partner to £850,000. Next year Clydes is likely to see further improvement with the addition
of aviation boutique BEAUMONT & SON.
Like Clydes, Holmans derives much of its work from core insurance areas such as transport
and shipping. Some of the litigation overlaps between sectors ± one of the firm's biggest cases
in 2004 was the final chapter of the dispute over the Exxon Valdez oil spill, which saw Holmans
win an appeal brought against client Brandywine Re over liability. Much of Holmans' contentious
work goes unseen ± the firm estimates that 80 per cent of its shipping cases are arbitrated.
Barlow Lyde & Gilbert and Richards Butler, both traditionally strong insurance
and general litigation practices, performed less well this year than last. BLG's revenue per
litigation partner is down, but partner numbers are up. The professional negligence practice
continues to be instructed by the majority of solicitors, accountants and other professionals
which have claims against them, and the defence of Ernst & Young in Equitable Life
appears to be going well.
Richards Butler lost two of its big-name litigators at the end of the year, as John Hull and
Lista Cannon defected for US firms, but the firm added new hires, including BLG's Richard
Spafford. Spafford brought with him The Accident Group (TAG) litigation. Dispute resolution
contributed 3 per cent lower revenues this year than last, thanks to strong performances
elsewhere in the firm. But Richards Butler continues to have a decent case list, with notable
victories last year including a Court of Appeal win for the government of Mongolia.
The biggest rise in litigation turnover came from DLA. Last year's £27.5m litigation
income, 10 per cent of the firm's total, rose to £61m,
or 19 per cent of the total. The firm also succeeded in
pushing up its RPP. DLA Piper estimates that, globally,
there are 1,200 fee-earners engaged on contentious work,
which is surely one of the largest litigation groups in the
world.
Litigation's real stars, however, come nearly at the
bottom of the table. Although Slaughters' contentious
team brings in just 14 per cent of the firm's total, there
are only 11 dispute resolution partners globally. Each
makes £3.7m, a figure way above any other firm in the
top 20. Much of Slaughters' dispute resolution practice
supports the corporate team, last year supplying highlights
such as the injunction against Freshfields for Marks
& Spencer. But regulatory work is also going strong and
things look rosy for this small but effective department.
Last year's major cases
Liquidators of BCCI v Bank of England;
Equitable Life v Ernst & Young; A & ors v
Secretary of State for the Home Department
(the `Belmarsh appeal'); NatWest Bank v
Spectrum Plus; Legal & General v FSA;
Cambridge Antibody Technology v Abbott;
Sumitomo Corporation v Crédit Lyonnais
Rouse; Kuwait Airways Corporation v Iraqi
Airways Company; JPMorgan Chase Bank v
HIH Casualty and General Insurance & ors;
Kirin-Amgen v Transkaryotic Therapies.
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