Assessing the legal market for our third annual Disputes Yearbook there are many reasons for litigators to be bullish… and just as many to be uneasy.
On the positive side, there is plenty of lucrative big-ticket litigation and arbitration work around. Indeed, when it comes to bet-the-company matters, it is increasingly likely to be contentious lawyers getting the boardroom access craved by major law firms as their corporate counterparts. The London courts have, despite mounting global competition, at the least maintained their clout, buoyed by well received innovations such as the Financial List (whose launch we cover in The Commercial Litigation Summit 2016: Marked to market).
Yet the softening in the wider disputes market that was evident through 2015 has continued. Pricing has become tougher for volume and mid-level work, less because of falling volumes and more due to increasing competition from the expanding array of credible players now operating in the City disputes arena. As we note on Everything must go – the London arbitration price war, this shift is typified in arbitration – one of the most reliable and profitable practice areas for advisers over the last ten years, but one in which pickier clients are finally pushing for better value.
If such matters are the prosaic ebb and flow of a functioning market, there is a more existential concern building over the state of the judiciary, which has been hit hard by the squeeze on public finances, falling kudos of the bench and recent evidence that some of the brightest advocates no longer want to be judges.
Such concerns are stark in our cover feature, ‘Rack and ruin’, in which we canvassed nearly 200 senior litigators, barristers and clerks to assess their views on the state of the courts. While there is considerable confidence that the quality of the bench remains high, our research underlines an increasingly common view: the bench is already in decline, gradual and slow decline but decline nonetheless. The Judicial Appointments Commission’s response that they will not compromise on quality rings hollow – they will have no choice if the trends carry on as now. Leaving roles unfilled is not a credible medium-term solution.
The profession feel – with considerable justification – that the government is short-sighted on court funding and fails to grasp the basic point that in many respects the judiciary is an essential part of a functioning democracy and, in the case of civil courts, an outright economic asset.
Even those that take a jaded view of the judiciary – I would argue that the maintenance of judges’ cherished discretion has contributed to an excess of nuance in English law where certainty would be more welcome – should side with the litigators’ views. But for the profession to have a hope of getting across its message on the value of the courts, it will have to show far more united and hard-headed advocacy than it has managed so far.
In reality, the position of the London courts is such that some loss of judicial lustre will be manageable… until it isn’t. It looks like the next ten years will put that point to the test.
alex.novarese@leglease.co.uk