Dispute resolution

Dispute resolution

What is dispute resolution?

Caroline Edwards is a dispute resolution partner and member of the firm’s international board at Travers Smith LLP

Thinking Meghan Markle in Suits? Well, sort of! For unpredictability, the need to think on your feet and the excitement of a legal and tactical battle both in and out of court, you certainly need to look no further. However, there is a lot more to dispute resolution than your favourite legal TV drama might suggest.

Most dispute resolution departments focus on handling civil and commercial disputes between individuals, groups, companies or organisations. They could be based here or overseas. The possible range of subject matter is limitless and although many disputes ultimately boil down to an argument between two parties to a contract, no two cases are ever identical. There are also many occasions where the dispute is not about a contract at all – allegations of fraud and defamation are prime examples. You will find that firms vary in the extent to which their dispute resolution department deals with more specialist categories such as employment disputes and competition, and other regulatory investigations.

While a litigator might represent a client in court proceedings or in arbitration, this does not happen in every case. In fact, one of the most important skills of a good litigator is the ability to enable your client to resolve its dispute in the best and most cost-effective way possible, which may mean not going to court at all. Litigators are therefore regularly involved at the very outset of a dispute and use a range of settlement strategies to bring a case to a satisfactory conclusion, well before the client needs to step into the court room.

What makes a good litigator?

To be a good litigator, not only do you need a sound understanding of the law, but you must be able to apply your knowledge to the commercial realities of the situation and come up with a strategy which you will then need to communicate clearly and effectively to your clients. Good communication and drafting skills are also vital when working with barristers and witnesses to prepare your client’s case, and when dealing with the other side.

An exciting and key role for the solicitor in dispute resolution is to play the detective. To build your client’s case, you need to spot the strengths in your own evidence and the weaknesses in the other side’s case, often hidden among a very large volume of documents. A forensic eye and attention to detail are therefore important attributes, as is the ability to step back from the detail and see the overall game plan. Finally, being organised will help you to keep on top of your caseload as there are often many elements of a case to juggle at the same time and you are likely to be handling a number of matters simultaneously, all with differing issues and deadlines.

The good and the bad

There is no such thing as a ‘typical day’ in dispute resolution and, in fact, it is the variety of the work which makes it such an attractive option. There is also plenty of scope to be given responsibility for aspects of a case, or even a whole matter, right from the start. In any one day you might be working on several different cases, all at varying stages of the litigation process. You might be attending court or a conference with counsel, meeting a client for the first time to discuss a new matter, or a witness to go through their evidence; you might be reviewing documents to find a ‘smoking gun’ or drafting a settlement proposal to the other side.

Like any job, there are elements of a litigator’s workload which can be stressful (for example, preparing an urgent injunction application on behalf of an enthusiastic but elusive client) or dull (such as wading through thousands of documents to work out what should be disclosed). However, the sheer variety of the work, the teamwork involved in preparing a case, and the satisfaction of getting a good result for the client make being a litigator extremely rewarding.

In terms of managing a caseload, the timetable determined by the court (or tribunal or regulator) on your cases will help you to anticipate when you are likely to be busiest, but there are always unexpected developments so you need to be flexible and adept at working under time pressure.

Dispute resolution in 2018

Commercial litigation continues to be a thriving and diverse practice area. The largest and most high-profile cases of 2018 see litigating parties ranging from large corporations and well-known financial institutions to hedge funds and entrepreneurs. The sharp rise in group litigation has continued, as well as a continued increase in follow-on damages claims, which follow findings of EU competition infringements, and in professional negligence and fraud cases.

We have been acting for Hewlett-Packard in relation to fraud claims amounting to US$5bn, with parallel criminal proceedings in the US, arising out of the US$11bn acquisition of Autonomy Corporation plc in late 2011. We have also been acting for Kaupthing hf and Mr Jóhannes Jóhannsson in relation to two sets of Commercial Court proceedings launched, respectively, in November 2014 by Vincent Tchenguiz and related parties, and in August 2015 by Robert Tchenguiz and related parties, against Kaupthing, Grant Thornton and others, claiming up to £3bn in aggregate, alleging conspiracy to injure by unlawful means including by making false, fraudulent and misleading statements to the SFO. We achieved the dismissal of both claims as against Kaupthing in 2015, on the basis of a successful jurisdiction challenge. We obtained summary judgment of Vincent Tchenguiz’s claim against Mr Jóhannsson in 2016.

Regulatory investigations and enforcement action have come to form a significant part of the workload of all of the top law firms in London and we can foresee no let-up to the substantial amount of legal work generated by these issues, from regulatory investigations to litigation, both domestically and internationally. Travers Smith has been involved in the recent high-profile investigations of LIBOR and FX. For example, we advised the Oversight Committee of the Bank of England (together with Lord Grabiner QC) in connection with its investigation into the role of Bank officials in relation to conduct issues in the FX market.

In an era where vast volumes of electronic documents are generated, the process of disclosure – locating and sharing relevant documents with the other side — has become increasingly costly and burdensome. Both the courts and practitioners have sought to grapple with this issue, culminating in a new disclosure pilot scheme, in effect from January 2019, which aims to streamline the process through the use of robust case management and technology.

Legal professional privilege also remains a hot topic. Last year brought us a first instance decision, in high profile litigation between the Serious Fraud Office and ENRC, which narrowed the circumstances in which privilege can be claimed. The appeal of that decision is being heard in July 2018, and lawyers across the City await it with bated breath.

Meanwhile, we are continuing to monitor developments as Brexit approaches ever more quickly. While we do not anticipate any immediate downturn in commercial litigation in this country (and indeed, it may increase), the uncertainty which pervades at this time is likely to impact on parties’ appetite for risk and their sense of urgency to resolve disputes.

Travers Smith LLP

Travers Smith is an award-winning independent law firm. We concentrate on being the best at what we do and have a reputation for excellence in all the fields of law in which we practise. We take our work, but not ourselves, seriously. Entrepreneurial and efficient, we focus on the results we can achieve for our clients rather than the points we can score along the way. This approach has attracted a long and loyal list of clients to the firm. Our lawyers undertake high-quality, and often high-profile, work within a collegiate and supportive environment which benefits both our lawyers and our clients alike. Over half of the firm’s work has an international dimension – to service this we have an office in Paris, as well as close working relationships with other independent law firms around the world that share our high standards.

We have a thriving and expanding dispute resolution team which punches well above its weight, gaining instructions to act in some of the largest and most complex pieces of litigation in the City, and producing outstanding results for our clients. We are also highly regarded in the field of regulatory investigations and enforcement work.

For further information about the firm, see www.traverssmith.com