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International Litigation - United Kingdom

posted 1 year ago

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Jim Cormack KC

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Jim Cormack KC
Pinsent Masons LLP

Pinsent Masons has a high volume, big-ticket litigation practice. We have been consistently recognised by independent commentators as one of the leading commercial litigation practices in UK, with a strong reputation for our commercial approach to resolving business disputes and, when cases do go to trial, a track record of winning. Increasingly, the market now sees us as a litigation powerhouse in the scale and complexity of what we do, and the results that we deliver.   
 
We are also one of only four law firms to consistently feature in the top ten most innovative law firms in the last four years; technology continues to underpin everything we do – e.g. our investment in an in-house team of eDiscovery experts, to help clients reduce the cost and complexity of large-scale litigation. 
 
What we are known for:
 
A multi-disciplinary approach, as a professional services firm with law at its core: 
 
• we have a two-partner forensic accountancy team who ensure that the commercial, financial and accounting aspects of disputes in litigation are considered in conjunction with the legal aspects (including through implementing decision tree analysis across our matters). They conduct investigations, they advise on accounting standards and approaches where relevant, and they work with independent accounting experts to ensure seamless instruction and delivery;
• we now have our own advocacy unit to deliver advocacy services to clients and to provide seamless holistic delivery of their litigation requirements as well as using the external Bar;
• our e-Data Advisors work alongside our litigators and clients to advise on best practice, on the appropriate use of technology and analytics, and on the appropriate course of action to take in progressing all aspects of e-disclosure. They interface with the chosen supplier on each e–Discovery exercise that we undertake, to verify and validate the suppliers’ processes, costs, and advise on how to proceed, and then to ensure quality control. It is extremely uncommon for law firms to be able to call upon an internal team with so many years of client and supplier side experience in the e-Discovery sector (since its inception). This is vital given the onus that now exists on law firms to ensure that they use the available technology to get to the documents that matter quickly and cost-effectively;
• our legal project managers (LPMs) ensure cases are run in a streamlined and cost-effective way. Trained in best practice by the Association of Project Managers and experienced in their fields, our LPMs apply the principles and practice of project management to deliver client legal projects on time and within budget. They drive value by taking admin time away from our lawyers so they can focus on what matters most for our clients;
• we have developed our own team of 30 in-house software developers and technology specialists. They design and implement efficiency-boosting technology solutions such as: online portals; document automation; due diligence tools; data analytics; and much more. For example, we utilise our own innovative technology (CostTool) for transparent tracking and reporting of project activities and spend.
 
Deep sector knowledge differentiates us from other law firms – clients tell us they want advisers who understand the issues for their industries and in the markets in which they operate – including energy, financial institutions, technology, pharma, retail, healthcare, life sciences and manufacturing. We have litigators who focus on each area to ensure that our clients have access to the right skillsets and experience for the job.
 
Core commercial and corporate litigation – great depth of experience dealing with breach of contract claims, breach of warranty, sale of goods claims, shareholder disputes, joint venture disputes and all forms of Companies Act litigation, including disputes arising from equity capital markets including IPOs. We frequently obtain injunctive relief on behalf of clients and are very much a “full service” litigation offering.
 
Advising and supporting clients throughout the lifecycle of a dispute – e.g. we advise on PR, crisis management and communications strategies to businesses and individuals involved in disputes; including running and co-ordinating multi-jurisdictional and cross-border litigation.
 
Litigation funding – we have agreed an innovative £25m litigation funding facility with the UK’s largest litigation and disputes funder Augusta Ventures. Our unique ‘preferred supplier’ arrangement offers clients the benefit of a dedicated facility at preferred rates, including a fast-tracked due diligence process and transparent commercial terms. We also work with a range of other litigation funders. 
 
Scaleability – Our ability to draw talent from across our office network, combined with the flexible solutions offered by our global market leading Vario offering, means we can rapidly scale up to meet the demands of large, complex matters and equally reduce costs by scaling down teams as and when appropriate. This includes scalability for document review exercises using Relativity-trained lawyers cost effectively at very short notice. By way of example, we recently asked Vario to provide a team of 25 qualified lawyers with Relativity experience and with three months of availability on an urgent basis. Vario identified a pool of 27 qualified lawyers who had been vetted and who were project-ready within 72 hours (which ran over a weekend). We therefore have an almost unique capability to ramp up resource for any contentious instruction.
 
In summary, in everything we do, we look to be different, we look to make a difference, and we succeed.

Workflow is strong with cases going to trial for rest of 2022, into 2023 and 2024. We have a broad range of clients including public sector, transport, advanced manufacturing and financial services. As an example, we continue to act for SKAT, the Danish version of revenue and customs, having been successful in the Court of Appeal, in one of the largest pieces of litigation currently ongoing against over 100 defendants and across multiple countries as well. A one-month preliminary issues trial is due to take place beginning of January 2023 and thereafter a nine-month trial in 2024.

The breadth of our litigation practice, and a recent uptick we have seen in litigation activity, means that we are busy across a wide range of different sectors and types of dispute at the moment. To the extent that it is possible to pinpoint particular sectors, we are particularly busy working for clients in the financial services and public sectors. We operate as a cross-border practice, with matters before fora in England regularly conducted from our Scottish offices and Scottish matters resourced from our English offices. Our civil fraud practice continues to be particularly busy, and we do not see that abating, not least given the seemingly endless ingenuity of fraudsters in developing ways to exploit developing technologies, such as cryptoassets, and difficult economic and social conditions such as Covid-19 and now the cost of living crisis. Our specialist cyber and data privacy litigators also continue to be very busy, with this being driven by the ongoing rise of cyber attacks and the developing data privacy landscape.

We still see financial services clients generally preferring litigation to arbitration. The reasons for this include the precedent value of court judgments – helpful where organisations are facing multiple claims arising out of allegedly systemic issues; the fact that many retail claims may be small – making arbitration costs disproportionately expensive; and the strong powers of the courts, for example to dispose of claims summarily or to grant interim injunctions/interdicts and other remedies such as orders for disclosure/discovery.
 
That said, we have seen an increased interest in arbitration from some clients for whom litigation has previously been very much the default position. This is probably driven by Brexit-related concern about the cross-border enforcement of judgments and the discourse around that. 
 
Even where businesses prefer, or are compelled, to litigate their disputes, resolving them in a way which saves our clients the time, costs and uncertainty of going to trial is always a focus. Mediation offers real opportunity to avoid the risks of litigation, sometimes also achieving more creative outcomes which better reflect the objectives of the parties, such as to preserve and/or renegotiate commercial relationships. The growth of remote and hybrid mediations since the onset of the pandemic has also made mediations ever more viable and efficient, with these benefits particularly felt in cross-border matters.

A very significant proportion of our cases have some international angle, whether involving overseas clients or witnesses, cross-border transactions, documents in other jurisdictions or assets located elsewhere, or sometimes forming part of a web of parallel or related actions in different jurisdictions. These present a wide variety of challenges.  
 
Disputes over jurisdiction and applicable law, how to serve documents in other jurisdictions, and the cross-border enforcement of judgments, have received particular attention in recent years as a result of Brexit.  
 
However, equally important are the practical issues involved in navigating differing documentary and witness evidence regimes across jurisdictions. For example, it is important in disputes with an international angle to consider how best to protect legal professional privilege (or its equivalent concept, such as ‘professional secrecy’) in each jurisdiction where litigation or regulatory action might arise. This requires an understanding of the different approaches of those jurisdictions to the circumstances in which clients can withhold disclosure of sensitive documents. It is also important to understand where tensions might arise, for example, between the extensive disclosure of documents often required in the English courts and restrictive data protection and privacy obligations clients may be under in some jurisdictions.  
 
In addition, while the growth of remote and hybrid hearings in recent times has given us more flexibility to, for example, call witnesses to give evidence by video link, it is always important to be mindful of any restrictions which another jurisdiction might impose on its citizens as regards giving evidence to foreign courts.  
 
We are also always very mindful of language and cultural differences. Language issues require particular thought when taking witness statements and arranging how they will give their evidence at trial. When working with clients and witnesses who are not native English speakers, it is more important than ever that our communications are clearly and concisely drafted, and that individuals are given sufficient time to consider and respond. Cultural differences and sensitivities can become particularly apparent in attitudes towards the settlement of disputes.
 
Relationships with colleagues or trusted contacts in other jurisdictions are critical to navigating these issues effectively, and we are very fortunate to have extremely close relationships with our colleagues in Europe, the Middle East and Asia Pacific, as well as an extensive global network of preferred firms beyond those jurisdictions where we have our own offices.

Globally, there has undoubtedly been an increase in this type of litigation, and we are starting to see the beginnings of that in the UK. Climate change-related litigation is the most obvious example, and while much of this still takes the form of planning disputes, regulatory complaints, protestor actions and claims against public bodies, we are starting to see more disputes activity involving commercial entities, particularly around ‘greenwashing’ and the extent to which climate risks should be factored into investment decisions. It is still early days, in the UK, in terms of formal issued claims, but we are supporting our clients in managing the risks. We are also seeing the growth of other types of ESG-related claim, beyond climate change issues, including claims relating to alleged governance issues such as modern slavery in the supply chain.
 
In terms of challenges, the novelty of these claims obviously creates risk for businesses facing them. For example, how should a director assess the risks to a business’s investments posed by climate change – particularly given developments in the energy market in recent months? How much detail must they include in their corporate statements about their net zero plans, to avoid shareholder claims alleging incomplete or misleading disclosures? If a claim is brought against a manufacturer who is alleged to be responsible, directly or indirectly, for causing pollution, how is causation to be assessed, given the range of other actors and sources responsible for emissions? These are just a few of the questions which we are likely to see play out in the coming years, and in the meantime it is difficult to give clients firm advice on some of these untested issues.
 
The party dynamics of ESG claims can also be different from most traditional commercial disputes. Many are brought by activist groups – often backed by crowdfunding – who may care as much about raising the profile of an issue as about ultimately winning. This means that usual approaches to negotiating a settlement may not be appropriate, and new strategies may need to be devised. The role of litigation PR is also likely to grow, as businesses look to control the narrative about their ESG credentials and activities during the course of disputes.

Covid-19 of course brought about rapid acceleration in the growth of the digital economy, and most major businesses are continuing on the digitalisation journey kickstarted by the pandemic, including in our core areas of focus such as fintech. Some of these projects will undoubtedly give rise to litigation and arbitration on which our clients will need support, as disputes arise from, for example, the terms and performance of outsourcing contracts, the exploitation of IP, and data protection issues. The growth of cryptoassets will also generate work for our regulatory and civil fraud teams, which are therefore important areas of focus for us.
 
As regards working practices in the litigation industry, these have undoubtedly evolved since the start of the pandemic. As a business, we already embraced agile working pre-pandemic and were able to swiftly and seamlessly pivot to fully remote working. However, the realisation of how well remote working can work, particularly for certain types of focused task, means that we and many of our competitors are now operating a truly hybrid model. The continued increase in the use of technology in our courts and innovative models for dispute resolution, and ever-improving technology to support these, has also changed the way contentious lawyers operate forever – with associated benefits in terms of convenience and costs for clients, as well as improving the carbon footprint of dispute resolution. Recent proposals for amendment of civil procedure rules in Scotland suggest there will be no abatement of this.
 
The continuing financial impact of the pandemic, now coupled with the energy crisis and other global issues, is likely to give rise to an uptick in disputes activity, but also to an ever more intense focus by businesses on their legal spend. Litigation practices will face ongoing pressure on fees and will need to ensure that processes are efficient and work appropriately resourced. We will need to double down on efforts to be creative in pricing proposals, including being ready to accept a share of the risk through conditional fee and damages-based agreements, where these are permitted. Third party litigation funding is an increasingly important way for businesses to achieve access to justice despite financial pressures, or to take litigation spend off their balance sheet, and we will see an ongoing strengthening of relationships between the legal and funding markets.

It is very important to us that our partners, directors and junior lawyers are active thought leaders and commentators on the most pressing legal issues facing our clients and the wider litigation market. Our legal news service, Out-Law.com, is one of the most visited law firm websites in the world and we are also regular contributors to the legal and mainstream press, from the Scotsman and the Financial Times to the New Law Journal.  
 
There are many reasons why this sharing of information is important. It helps busy in-house disputes lawyers to scan the horizon for the issues they really need to know about. It informs a dialogue with other members of the litigation community with whom we work closely, such as experts, counsel and third-party litigation funders. It can help promote best practice within the industry, and in some cases – particularly where coupled with a response by us to an industry consultation – can help bring about change in the law or practice. 
 
Some events, such as London International Disputes Week, GAR Live: London or the International Council for Commercial Arbitration (ICCA) congress which took place recently in Edinburgh, also play an important role in promoting and upholding the reputation of the UK as an attractive place to resolve international disputes – modern, efficient, diverse and offering a high quality of decision-making. They also help UK litigation professionals to build those all-important connections with practitioners in other jurisdictions.

We are keeping a particularly close eye on developments in the field of class, group and collective actions and redress, as this is an area in which we do a great deal of work, across practice areas and sectors, and in which businesses – particularly those in consumer-facing markets – are increasingly exposed. For example, in the EU, the new Representative Actions Directive, requiring a levelling-up of mass actions regimes across member states, must be transposed by those states by the end of this year, ready to be implemented by the middle of 2023. Even in the UK, which is not bound by the Directive in light of Brexit, there is ongoing discourse about the effectiveness of available mass actions regimes, with attention at present particularly focused on Scotland, where there is discussion about the potential for the country’s recently-introduced group proceedings procedure to operate on an opt-out, as well as an opt-in, basis. Any procedural changes in these areas will require our lawyers to quickly upskill and adapt; and for many of our clients, they will likely increase the risks of facing mass claims and therefore the support those clients need in mitigating and defending such claims.

Our litigation practice continues to be a very significant area of growth within our firm, and we are focusing our efforts to strengthen our offering via internal promotions and lateral hire activity.

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