PRESS RELEASE

The President of the LSLA says "don't shoot the lawyers"

"It is understandable that the Governor of the Bank of England is angry at having to endure a litigation lasting 13 years, but this isn't a case of ‘blame the lawyers’”, said Simon Davis, President of the London Solicitors Litigation Association.

Some years ago the Bank's lawyers tried to have BCCI's claim thrown out on the basis that it had "no reasonable prospect of success". This issue was considered by the top Court in the land, the House of Lords. It decided by a majority that the case should proceed "to be examined and tested with the procedural advantages of a fair and public trial" and that the Court should not be "influenced" by the fact that a lengthy and expensive litigation would ensue.

In those circumstances both sides' legal teams no doubt then worked strenuously to represent the interests of their clients. The Bank has prevailed and its costs have been paid by BCCI. In this respect at least the Bank was fortunate that the case was in England. Had it been in other jurisdictions, such as the United States, where the loser does not generally pay the winner's costs, the position of the Bank would indeed have been intolerable.

If a claim is not struck out at an early stage, our civil justice system places great demands on solicitors and their clients in its requirements concerning case management conferences, disclosure of documents, the preparation of witness statements, the production of experts’ reports and the like. These demands show no sign of decreasing.

On the other hand, a claimant whose case is thrown out without a trial may complain loudly that human rights have been infringed and that access to justice has been denied. If the claim against the Bank had been thrown out without even the prospect of a trial there would no doubt have been criticisms of a different kind levelled by BCCI and others against our civil justice system and lawyers.

However, even leaving aside recent events, what is true is that the demands on lawyers and their clients imposed by the existing system are too onerous and need overhaul.

The LSLA has been at the forefront of those calling for reform. Set out below is an extract from a submission made earlier this year to the Civil Justice Council:-

"If the cost of litigation is to be reduced for the parties, consideration needs to be given to reducing the amount of work which needs to be done by and on behalf of the parties. Automatic mutual disclosure in every case, for example, is one of the heaviest cost items for clients. The rigidity of the CPR in this area is one of the reasons why adjudication and arbitration are frequently preferred to the litigation process. In certain cases the complexity and amounts involved in a case will justify the full "Rolls-Royce" application of the CPR, with costs being a necessary corollary. In other cases the Rolls-Royce may not be necessary and therefore the costs can be reduced.

It is perhaps no coincidence that in the more flexible procedural fields of adjudication and arbitration there is little, if any, attempt by the adjudication/arbitration panels to send the parties to mediation. This is almost exclusively the attitude of the Courts, driven by the desire to reduce the cost of litigation and even then, not necessarily the reduction of cost to the parties, but the reduction of cost to the Treasury.

In addition, the LSLA considers that the Judges have received insufficient encouragement to strike out cases/award summary judgment at an early stage. Greater active case management in these areas was said by Lord Woolf to be one of the intentions of his reforms. Instead the LSLA had detected a marked reluctance on the part of Judges to deprive parties of the opportunity of having a full trial. In this connection the majority decision of their Lordships in the Three Rivers [BCCI/Bank of England] case was unfortunate, in the respectful submission of the LSLA, and set too high a hurdle for the early disposal of cases. Indeed, events following that decision illustrate vividly the risks of the Court not intervening early and robustly."

23 June 2006

Note for Editors

The London Solicitors Litigation Association was formed in 1952 and currently represents the interests of a wide range of civil litigators in London. It has some 800 members in Central London among all the major litigation practices. Past Presidents have included Thomas Seager-Berry (now Costs Judge Seager-Berry), Richard Evans of Beachcroft Wansbroughs, David Wyld of David Wyld & Co, James Burnett-Hitchcock, formerly of CMS Cameron McKenna, Michael Seymour of Lovells, Richard Fox of Kingsley Napley, Tony Guise of Guise Solicitors and Graham Huntley of Lovells. Its current President is Simon Davis of Clifford Chance. The Honorary Secretary is Anthony Maton of McGrigors. They work with a Committee of 23 members which includes members of the Civil Justice Council, Civil Procedure Rules Committee, Law Society Civil Litigation Committee and other organisations and Law Societies.

Joint Response Of The LSLA, Commercial Bar Association, Chancery Bar Association, London Common Law and Commercial Bar Association, and City Of London Law Society

LSLA Response to The Ministry Of Justice Consultation Paper (NO. CP13/10): Proposals For Reform Of Civil Litigation Funding And Costs In England and Wales

Consultation on Referral Fees