As the forum of choice for international litigants, London continues to enjoy an unparalleled reputation for high-value dispute resolution. The quality of justice delivered by its commercial courts is underpinned by the calibre of specialist independent judges and the lawyers that work in them. But beyond the courtroom door, a diverse range of specialist litigation support providers routinely help to bolster the case being put forward by the legal teams on both sides.
From asset tracing, e-discovery and forensic accounting to third-party funding, PR and witness training, many of these services are now increasingly central to formulating a successful dispute strategy. Critically, the level of sophistication required frequently goes beyond the capacity of in-house expertise available to general counsel (GCs), or even to the largest law firms.
‘For some years, a select number of law firms have had in-house forensic accountants,’ says Doug Hall, head of forensic services at Smith & Williamson (S&W), citing Bryan Cave Leighton Paisner, Clifford Chance and Pinsent Masons as examples. ‘There are some real advantages for them: to do quantum work, pre-action, to advise on offers and to assist with the instruction of experts.’
However, there has not been much uptake of in-house capability beyond the handful of firms Hall mentions, and he says firms could be missing a trick: ‘We have worked with those law firms that have in-house forensic accountants and it works equally well for us, and in some cases even better, because you get better clarity of instructions and a better understanding of what we do.’
Cross-communication
At first blush, each discrete area of litigation support might appear largely self-contained, but the overlap between them can be indispensable to the case strategy determined at the outset by each law firm with their clients. Nowhere is this more prevalent than in litigation PR, which can form a core part of the overall strategy – before, during and after a case.
‘Clients should bring PR people to the table very early on when litigation is first contemplated, to begin to map out how that could play on the client’s reputation,’ says Tim Maltin, founder of Maltin PR. He suggests that PR can play a role in introducing aspects that might become part of the hearing beforehand, which can have the effect of bringing parties to the settlement table. In working with lawyers, their clients and other litigation support specialists, he notes: ‘It’s absolutely a team effort and the best legal teams bring in different skillsets in a seamless way. The team gets to trust each other and understand the overall goal through the contribution of various experts.’
Clementine Hay, associate director of Byfield Consultancy, says clients need to have a clear understanding of the benefits and advantages that having a well-prepared PR strategy can bring as part of the litigation team effort. ‘If there are multiple parties, you need to make sure that everyone is signed up to the same strategy and is on the same page,’ she says. ‘The PR team works very closely with the legal team either to prepare for enquiries and decide on a reactive basis, or proactively to intensify media coverage.’
‘Many experts were unable to compose an intelligible court-compliant report. Our training reminds experts that their role is to assist others to understand technical issues.’ Mark Solon, Bond Solon
In parallel with PR, the inexorable rise of disputes funding in the UK has made it an integral part of the legal landscape: arguably, the ultimate form of litigation support. Funders regularly work with law firms, especially in financing complex claims and group or class actions. But whereas historically they were often reluctant to publicise their involvement in a case or with particular law firms, some are increasingly keen to do so. According to Ellora MacPherson, chief investment officer (CIO) of Harbour Litigation Funding, institutionalising relationships with law firms is ‘incredibly important in the cases we fund. We do not think litigation funding is a one-stop shop. Investing time and energy in developing relationships means that the parties understand each other in a way they would not do if it was a one-time hit. The funding process becomes a lot smoother before investment and there is continued collaboration post-investment.’
Harbour’s senior director of litigation funding, Stephen O’Dowd, adds: ‘If you are coming to something cold as the potential funder of a case, the key criterion is that the legal team is top notch.’ He also points to the value of relationships, citing Mishcon de Reya as an example: Harbour has more than £130m committed to Mishcon on current cases, comprising about 10% of their total funds.
‘We work really effectively together,’ says O’Dowd. ‘But it goes beyond that, because I have gone on marketing trips to Germany and the Netherlands with people from Mishcon.’ For Harbour, the same also applies to other firms: ‘It is a measure of our relationship with Eversheds Sutherland that we go with them to meet some of their most important clients to talk about funding,’ he adds.
Appliance of science
While the relationship between funders or PR specialists, law firms and their clients is manifestly of mutual benefit to all concerned, the nuts and bolts of litigation are equally crucial. To examine the minutiae of company accounts and computer records, or to trace hidden bank accounts and deleted emails, invariably requires considerable support from external specialists.
‘I help our clients get their case ready for the law firm,’ says Benedict Hamilton, global managing director of Kroll’s business intelligence and investigations. ‘We work with around 50 UK law firms, doing lots of financial investigations, helping to quantify losses and identify recipients. We also provide expert witness testimony around those losses and the quantum involved.’ In addition to firms such as Herbert Smith Freehills, Hogan Lovells, Mishcon and Baker McKenzie, Kroll does a considerable amount of work for the growing market in litigation boutiques (see boutiques feature).
The nature of investigations that Kroll undertakes, often pre-litigation, reflects the digital age: ‘We are seeing a lot more litigation around the misuse of social media or to create campaigns that damage a client’s reputation,’ says Hamilton. ‘There are also complex attacks, trying to drive down a particular share price to benefit short sellers. Another trend is litigation involving blockchain making its way into our workflow. We have a number of cases where people have had cryptocurrency stolen.’
He points to disputes funding as both a positive driver and as further evidence of the interdependence between litigation support professionals. ‘It does not really differ from a normal investigation in terms of how it is run, but we are doing something now that is litigation funded on behalf of a few score victims. All of them suffered losses from fraudsters who hid the money. That kind of a project where the average loss was £800,000-£900,000, none of those businesses could have taken on the case individually because of the costs.’
The growth of electronically-stored information (ESI) has increased the cost and complexity of investigations and the e-discovery process, with a knock-on effect on big-ticket litigation. Forensic advisers are commonly used for litigation support in such commercial disputes. Among the Big Four accounting firms that enjoy close relationships with Magic Circle law firms in this area, Deloitte is the most notable. The teams combine forensic accountants, lawyers, former regulators and law enforcement agents, as well as forensic technology and corporate intelligence specialists. Primarily, they offer technological solutions to retrieve, search and analyse large and complex data sets that can be used to address issues in a dispute.
Beyond the Big Four, there is significant room for other players. Grant Thornton associate director Michael Barber says that advisory work in large dispute is becoming increasingly complex and demanding: ‘In complex cross-border disputes, forensic accounting is rarely a simple bean-counting exercise. The need to be able to distil vast quantities of financial and contextual information to get behind the commercial purpose of transactions requires experience, multi-disciplinary teams and access to digital forensic technologies to stand a chance of demonstrating to a court or tribunal the true picture.’ Phil Beckett, managing director of Alvarez & Marsal’s disputes and investigations practice, is responsible for forensic technology across Europe, which is made up of four service lines. ‘Our services comprise digital investigations – providing expert evidence identifying intelligence and evidence relevant to an investigation or dispute; e-disclosure/e-discovery, where we provide support to our clients throughout the entire process – identify, collect, process, host and consult; data analytics/data science, where we work on cases involving fraud, money laundering or sanctions abuses; and cyber risk services where we help boards and senior management to evaluate and mitigate company’s cyber security risks.’
In e-disclosure/e-discovery cases, Alvarez supports lawyers and their clients to manage the data population. ‘We do virtually everything on that cycle, except paralegal review,’ says Beckett. ‘We’re not lawyers, we are techies, and we stick to what we’re good at: straightening out and collecting data from a variety of sources, processing data, hosting data, helping manage the review through the intelligent use of technology, creating a disclosure for the other side, and receiving the other side’s disclosure. We work on the complex, uglier, more challenging projects that tend to be outsourced to an independent expert.’
Also involved in forensic advisory work, S&W acts for major City and larger regional firms, litigation boutiques and a spread of US firms doing arbitration in London. ‘The sort of firms we deal with have well-established teams doing commercial disputes – all of their partners are very well versed in what we do,’ says Hall, who is keen to emphasise the high level of partner engagement. ‘We deal with cases from hundreds of thousands in damages to hundreds of millions, whereas our larger competitors have a cut off at the lower end of that range. It’s good to do cases of all shapes and sizes.’ In cases where quantum is most difficult to resolve and the calculation of damages is complex, expert forensic accounting witnesses are frequently used. ‘In my field – the expert witness world – there has been a growing issue for some time: the Big Four suffer from conflicts,’ says Hall.
Preparing the witness
Witnesses play a critical role in disputes, either as experts or witnesses of fact. The quality of their evidence can determine the outcome: often the first line of attack in cross-examination is whether an expert’s qualifications or experience entitle them to give an opinion. Solicitors therefore choose experts of the highest calibre, although their level of expertise may depend on the amount being claimed and the complexity of the issue.
‘Clients should bring PR to the table very early on when litigation is first contemplated, to begin to map out strategy.’
Tim Maltin, Maltin PR
‘Many experts were unable to compose an intelligible court-compliant report so I developed a programme to show them how to provide what the courts need,’ says Mark Solon, founder of Bond Solon. A range of expert programmes soon followed, culminating in comprehensive training. ‘Every expert has a sell-by date,’ notes Solon. ‘What solicitors and courts want is someone who is current in the field. Many experts pitch the language of their report or evidence as if addressing another expert in the field, whereas their purpose is to assist the court or the instructing solicitor. Our training reminds experts that their role is to assist others to understand technical issues.’
Bond Solon also helps to prepare witnesses of fact for what lies ahead. ‘They will probably not have given evidence before and will never do so again: their perception of the process is what they’ve seen on TV,’ says Solon. ‘The court procedure is fully outlined and they get experience of being cross-examined.’ Bond Solon’s training explains what happens and how to address the court. Each witness is cross-examined on a neutral case study and prominent clients include Roman Abramovich, whom Bond Solon helped in his courtroom battle with fellow oligarch, Boris Berezovsky.
Grant Thornton’s Barber agrees that there is growing demand for advisers that can elucidate complex issues for the court: ‘The complexity of many disputes today requires the expert to not only deliver compelling words and accurate numbers, but increasingly employ modern data visualisation and analytics to bring complex points to life.’
In a fast-growing field, Assurety helps to prepare witnesses for ‘the real experience of giving evidence’, says co-founder, Jason Galbraith-Marten QC. Assurety focuses on high-end commercial disputes, both for factual and expert witnesses. ‘We only use senior barristers from leading chambers to deliver our training – people who have experience in the courts and tribunals that they are training about,’ he says. ‘We have a panel of over 50 barristers, a third of whom are QCs, and intend to grow that number to about 100 in the next couple of years.’
‘If you are coming to something cold as the potential funder of a case, the key criterion is that the legal team is top notch.’
Stephen O’Dowd, Harbour Litigation Funding
According to Galbraith-Marten, all of the courses are delivered by two people. ‘The second person is an expert in the personal communications field: they help people to understand what it means to communicate effectively, and look at how they are communicating, analysing whether there is anything they are doing that might inhibit their ability to give evidence effectively. It could be something as simple as nerves, being overly anxious, or body language. We help them to understand how they are coming across, and to communicate better.’ It is the combination of legal and communications expertise that makes Assurety’s training unique and effective, he argues.
As the scope and scale of commercial litigation and arbitration in the UK becomes more complex, so too does the range of litigation support services involved at every stage in the process. In their widely-different roles assisting law firms and their clients, every support provider agrees on one thing: the demand for their services in the coming decade is set to increase. LB
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Disputes in mediation: more complex and more international
The growth of mediation mirrors the expansion in commercial disputes. The last mediation audit report, published in July 2018 by the Centre for Effective Dispute Resolution (CEDR), revealed that the civil and commercial mediation market in England and Wales was estimated to be 12,000 cases per annum. This year’s biennial report is anticipated to hit the 14,000 mark.
According to Beverly-Ann Rogers, a mediator at Serle Court, there has been a notable increase in mediations early in the dispute and in mediations ‘where the day of mediation is the beginning of a process that leads to settlement a bit later, together with growth in commercial property disputes, possibly because the market has been stagnant’.
Users are increasingly sophisticated in their approach and the number of lawyers who have used mediation on several previous occasions is growing, suggests Phillip Howell-Richardson at Independent Mediators. ‘Also the proportion of cases with significant complexity continues to rise and quality follow-through after the mediation meeting is increasingly important.’
Meanwhile, Mark Jackson-Stops, founder of mediation chambers In Place of Strife, sees more family disputes being brought to mediation and ‘an increase in celebrities and exceptionally wealthy people wanting to settle disputes privately and confidentially at mediation’. At Independent Mediators, Bill Marsh notes that international disputes are increasing, ‘perhaps because the UK seems to have a reputation overseas for producing effective and experienced mediators’.
Eileen Carroll QC, principal mediator and co-founder of CEDR, develops the point. ‘There are a lot of multi-party, multi-jurisdictional disputes with the parties very happy to mediate in London,’ she says. ‘At least 50% of mediations are coming before any litigation or arbitration – either a contract referral, or the parties simply agree to mediate first, particularly with international clients.’
She has also noticed mediation involving ‘a lot of big multi-party, infrastructure, procurement and complex long-term contracts. Clients really appreciate having the opportunity to mediate so that they can unravel some of the complex issues and get greater transparency’.
Last August, the UN’s Singapore Convention on Mediation (SCM) came into force, designed to assist international trade and promote mediation as an ‘alternative and effective method’ of resolving trade disputes, as well as giving businesses greater confidence to mediate cross-border disagreements rather than going to court. The SCM only protects settlements arising from commercial mediation. ‘The increase in the number of international mediation cases is helped by the publicity surrounding the creation of the SCM,’ says Howell-Richardson.