Sheila Simison on the rise of macho tactics in the Commercial Court

Those who practice in the Commercial Court are usually litigating on behalf of one of the top one thousand companies over vast sums of money. By comparison, the legal costs may represent just a small percentage of the sum in dispute. But how cost-effective are some practitioners in doing the best job for their clients?

Recent stirrings among the users of the Commercial Court and warning bells of discontent from its customers, have prompted Lord Justice Woolf and Sir Thomas Bingham MR to look at the Commercial Court and its practices more closely. Put simply, the system is being abused at the clients' expense and this has not gone unnoticed by either the clients or Commercial Court judges.

The message is clear – the clients get no benefit or advantage from fees spent taking every procedural point regardless of merit. This is often combined with a lack of co-operation between the parties. Whether this is due to time-sheet pressure, billing targets, concern over losing clients in a perceived dwindling market or a combination of all these things it is difficult to say.

What is apparent, however, is an increasing lack of integrity among some practitioners combined with such aggression in the use of unfair and improper tactics to win at all costs, that unjustified fees are run-up and trial dates are much delayed. If not checked, this will drive clients away from London as a dispute resolution centre.

No matter how robust our judges and how refined our rules there will be no overall saving on costs unless these practitioners adopt a fresh approach and progress towards trial in a civilised and efficient way. Toughness has its place, but when employed for its own sake it serves no purpose.

So great is the concern that a meeting was recently called to discuss how to deal with this decline in conduct and 90 per cent of the firms using the Commercial Court were represented. The Master of the Rolls reminded the audience that we all had a duty to maintain the standards of civilised behaviour and we were engaged in the pursuit of justice in the interests of our clients. Some of our more macho litigators may do well to reflect upon this.

Sheila Simison is a partner at Clyde & Co.