• Posted

Luke Harrison, lead litigation and dispute resolution partner and interim Chairman of the Commercial Litigation Association opened the association’s summer conference on 6 June with the following address.

1.Welcome to our summer conference. I am Luke Harrison, Interim Chairman of the Commercial Litigation Association and Partner at regional firm Debenhams Ottaway.

2. Firstly, may I extend the association thanks to Simmons & Simmons who have kindly hosted us today. It’s not the first time the firm has supported the association. Many of us will have heard Simmons Senior Partner Colin Passmore speak at our earlier conferences on the issue of privilege, a subject of fundamental importance to all litigators but of particular importance for those representing commercial clients given the proliferation of data and the ease with which it is disseminated. I note that we have a talk on privilege later on this afternoon from James Pollock of our hosts. Does this mean Colin has an understudy? We shall see!

3. We have a packed schedule this afternoon starting with two somewhat related topics of dishonesty and fraud. Both appear to be becoming much more prevalent in commercial disputes and I suspect that if the issue were researched one would find that there are a greater number of fraud allegations in pleadings filed in the Rolls Building in recent times that there were a decade ago. Is it because advanced fact-gathering tools, such as e-disclosure platforms and data analytics tools make it easier to investigate fraud? Have litigators become more brazen in their approach to pleadings? Is it a tool to overcome limitation hurdles or a sharp instrument to pierce the corporate veil? The aforegoing is probably enough of a hypothesis to warrant a thesis but for now perhaps our speakers on the subject, Neil Hext QC, Helen Evans and Mark Cannon QC of 4 New Square may be able to shed some light on the issue.

4. We then have a workshop lead by Marion Smith QC of 39 Essex Chambers on practical aspects of choosing, instructing and working with experts. The importance of expert evidence was highlighted only this week with judgment in Avondale Exhibitions Limited -v- Arthur J Gallagher Insurance Brokers [2018] EWHC 1311 (QB). A case in which I note members of 4 New Square acted in on the instructions of our hosts today. The by-line of the case appears to be that it would be a bold claimant who would sue an insurance broker, or most professionals for that matter, without obtaining expert evidence. Yet when I’ve acted for clients in disputes with banks the stock argument for a CMCC appears to be that expert evidence is unnecessary because this banking business is actually quite simple. Getting this right, it seems to me, is a fundamental skill in the commercial litigator’s toolkit.

5. We finish this afternoon’s sessions with a talk from Nik Yeo of Fountain Court on Financial Services and Investment Claims. They have been a staple diet for commercial litigators since the financial crisis in 2007/2008. Have financial service and investment businesses changed the ways that led to the financial crisis? Is there any truth in the concept of fading corporate collective memories leading to the resurgence of behaviours and practices which compliance teams had sought to correct? Are the big cases now over? I read yesterday on a post from Law 360 that an ex Barclays associate told the Jury in the Euribor manipulation trial at Southwark Crown Court that she thought it was “perfectly ok” to act on a request to submit a higher or lower value to fix the Euribor benchmark but that she “feels a bit stupid” for not questioning why traders asked her to help them influence rates. Was she being dishonest or was her moral compass just broken?

6. What today’s conference reminds me of is how diverse our work is as commercial litigators. It covers all manner of sectors and businesses, it transgresses many areas of law, very few cases are the same. It’s probably one of the most challenging areas of legal practice and if Carlsberg made lawyers they would probably make a commercial litigator. It will also most likely be that we will be the sole survivors when AI takes over the legal profession.

7. This association represents the interests of those in the business of commercial litigation. Not just solicitors but barristers, funders, forensic accountants, e-disclosure professionals, insurers and many other professionals and service providers who collaborate, often under the project management of a commercial litigator to design, build and execute litigation strategy and cases.

8. Whilst commercial litigation involves many high value cases planned and executed in London it also supports the activities of commerce up and down the country, in the towns and cities of our regions. It does this by giving teeth to the law allowing those involved in business to enforce their legal rights. The ability to do so is fundamental to the rule of law as is the economic prosperity it protects as Lord Neuberger illustrated in his lecture: Magna Carta: The Bible of the English Constitution or a disgrace to the English nation?.

He says:

“Democratic government involves a country being governed by laws made by legislatures (parliament and local authorities), which are regularly and fairly elected by all citizens. The rule of law involves just and accessible laws which are administered by an independent and competent judiciary, and are properly enforced. The great 18th century Scottish economist, Adam Smith, pointed out that a society must have an effective and fair legislature, and a proper and reliable system of justice, if it is to enjoy economic prosperity. But, economic prosperity is, I think, actually a third necessary ingredient of a civilised society. In the absence of economic success, it is likely that there will be unrest or worse, and that is why I think it should be included.”

9. This association provides a voice for practitioners doing this important work. Not just the elite but those at grass routes level plying their trade in the local courts of England & Wales, Scotland and Northern Ireland. In so doing we aim to ensure that the rules, procedures and practice directions often conceived in London take into account the interests of the many and not just the elite. Our work has involved responses to consolations ranging from that undertaken by Lord Justice Jackson into fixed cost to disclosure reforms. We also have a commitment to affordable, regular and accessible conferences.

10.We can only do the work we do with the support of our members and sponsors. If you are not a member and would like to join the association please either speak to Mark or I or contact us via our website. If you or your firm would be interested in sponsoring or hosting future conferences please let us know. You’ll receive a feedback email after this conference with a link to our membership application form as well. For GDPR purposes please keep your hands down, don’t put them up, if you consent to us keeping in touch with you via email.

11. I’d now like to hand over to our first two speakers Neil Hext QC and Helen Evan of 4 New Square.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.