Have the high charges of City litigation practices, as some in the judiciary believe, slaughtered the goose that laid the golden egg? The number of claims issued in the Commercial Court fell from 1,808 in 1999 to 979 in 2006 (during the same period, the total number of High Court Queen’s Bench Division claims fell even more dramatically — 10,317 to 3,958).
The planned new
But when the Court opens in 2010, will it still be attracting the best? First, some context. The 1999 figure of 1,808 included a number of Lloyd’s insurance claims and arguably represented an artificial spike. The
But, as every commercial litigation lawyer will confirm, and the judiciary appear to have acknowledged, not only are court claims down but targeted reform of the court rules is now required, however generally effective they may remain.
So where should the priorities lie? First, the judiciary is right that the high costs and duration of proceedings must be tackled. Key to this is the Government moving away from the notion that civil litigation can, or should be, self-financing. The focus must rather be on exploiting the opportunities to truncate proceedings by the intelligent use of technology.
For example, orders requiring electronic disclosure should embrace the methodology of some of the ‘review and sort’ capability offered by the latest software. Investing in greater judicial familiarity with this software capability is essential. Less concentration on the restoration of backup tapes and more understanding of the effective interrogation of a party’s live servers could have a dramatic impact on reducing costs and delays. As would amplification in the court rules of how e-disclosure should be consistently, efficiently and effectively controlled and conducted by parties and their advisers.
Secondly, the rules allowing bad claims to be thrown out at an early stage need simplifying. The House of Lords rejected the Court of Appeal’s view that the Bank of England was not capable of being liable in tort for misfeasance in public office. Had it not done so, the BCCI claim may have been renowned only for the readiness of the courts to strike out unmeritorious — rather than notorious — claims for the length of the advocates’ opening speeches.
Thirdly, the
Arbitration statistics suggest that parties have not lost their appetite for having their disputes decided. The London Court of International Arbitration has seen its requests for arbitration rise from 60 in 1999 to 133 in 2006. It is thought that approximately 50% of cases proceed to a hearing, within an average period of 11 months. City law firms do not seem to be an obstacle to either the cost or speed of arbitration proceedings (in which of course arbitrators tend to favour more restrictive disclosure).
It would be a disappointing irony if the arbitral institutions rather than the new
Andrew Clark is head of Allen & Overy’s global litigation practice.