The panel system as a defence tactic

Our front page story this week highlights an issue which goes to the heart of the debate on conflicts: client choice, or in this case, the lack of it.

As our research shows, corporates or financial institutions which want to take on the UK’s major banks have precious little choice of legal advisers available to them, despite the fact that London is supposed to be the world’s premier disputes centre.

So strict are the clauses acting against the banks’ commercial interests, and so large are their panels, that there are only four law firms in the top 30 which do not act for any of them at all. RBS and Barclays are the worst culprits in – unwittingly, we’re sure – denying choice to potential adversaries. Given their dominance of commercial lending in the UK, and given the banks’ broad application of the conflicts rules, the cynical might call the panel system a defence tactic in itself.

So who’s left? There aren’t many litigation powerhouses available. The top 10 won’t touch any claims against City financial institutions. Barlow Lyde & Gilbert not only acts for Barclays and RBS, but also acts for banks’ insurers. Firms with a strong name in general insurance defence claims are unlikely to be instructed by corporates or by overseas financial institutions for bet-the-company litigation.

There are two natural heirs: Clyde & Co, which is contemplating extending its stellar contentious reinsurance practice into general commercial litigation, and Richards Butler, which set its stall out last year when it started targeting conflicts referrals. Richards Butler is on a low-level Barclays panel, and did the unthinkable in asking for a waiver from Barclays on the Nordbank dispute. (We couldn’t find any other major litigation player who would contemplate it.)

But Richards Butler has made growing litigation a commercial imperative, and it isn’t afraid to be ballsy on this – although even Richards Butler would have balked at trying to get a waiver off RBS, for which it does considerably more work than Barclays. You can see why it makes good business sense for the firm: the worst case scenario is that it gets booted off the Barclays panel and loses the minimal work it gets. But it’s a dramatic way of attracting the attention of all those Continental and Japanese banks which are starting to rumble about credit derivatives.

For the City to function properly, there needs to be a proper choice of law firms available to act. It’s a shame the UK’s biggest banks haven’t taken this to heart.