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The past

Origins: Maxwell, Barings and beyond

Forensic accountancy. The term strictly refers to accountants whose work supports legal proceedings of various kinds. This is not dissimilar to the way that a forensic pathologist might provide expert evidence to the court. Only forensic accountants substitute corpses for cashbooks and scalpels for sale-and-purchase agreements (SPAs). Continue reading “Sponsored briefing: From Barings to Bitcoin, the forensic accounting market – past, present and future”

Handling complex high-value matters

Closer to home, our team has had a number of its recent cases in the Commercial Court reported and receives instructions in commercial disputes from both regional and national players. We have a strong record of working with in-house counsel teams in difficult, sensitive and complex claims and investigations.

Trowers has a long history of acting in disputes involving the public sector and continues to be a leader in this field. For example, we are on the panel for the Department of Health, who we advise on various high-value claims.

We are one of the only firms with a team recognised for its civil fraud expertise, where we act for a wide range of public, private and third-sector clients dealing with prevention, investigations and recovery actions across multiple jurisdictions. With deep experience in freezing injunction applications, we also advise on anti-bribery and fraud prevention issues and are increasingly known for significant instructions arising from cyber crime. We support both domestic and international clients dealing with the regulatory and data issues that arise from cyber events and our team regularly speaks at conferences on cyber security and dealing with breaches.

Supporting a broad client base

Our real estate litigation team in the West Midlands has grown considerably in recent years and now stands apart for the breadth of both its work and its client base, covering the full range of City-quality contentious property work in the regional market. Our clients include significant public sector pension funds and investment funds, NHS foundation trusts, West Midlands-based property investors and corporate occupiers, large and small developers, high-net-worth-individual clients, large and small housing associations and care providers, including the West Midlands Metropolitan Authorities Pension Fund, Westminster City Council (investment property), King’s College Hospital, Mainstay Residential, Midland Heart and Citizen Housing Group.

Our construction litigation practice in Birmingham is focused on the development of risk management and dispute avoidance strategies to help clients retain control of projects. When action does become necessary, we guide clients towards the most satisfactory outcome possible, whether that is through adjudication, mediation, conciliation, early neutral evaluation, expert determination or a more bespoke process. The disputes team is an integral part of our projects and construction department, providing a full service to construction projects on a local, national and international basis. We advise housing associations, NHS trusts, contractors and leisure developers across the Midlands region on a range of significant contentious matters relating to construction aspects of various schemes and projects.

We believe our full-service litigation practice in the Midlands stands apart for its ability to cope with complexity and diversity, and for its national and global reach. We have significant expertise using litigation funders to finance claims ranging from £200,000 to over £100m – we always look at the big picture when supporting clients, pursuing the most effective dispute resolution achievable.

In order to develop our relationships with in-house counsel, we run a breakfast series called Counsel’s Club where we discuss topical issues and share experiences, resulting in valuable collaboration and information sharing.

Key partners

Helen Briant

Partner, commercial litigation
E: hbriant@trowers.com
T: 0121 214 8867

Helen Briant is a partner in Trowers & Hamlins’ commercial litigation practice in Birmingham, specialising in commercial litigation and arbitration. She regularly works with in-house legal teams to resolve substantial commercial disputes. She has particular experience in working for clients in the manufacturing and engineering sector. She also has significant experience dealing with complex and sensitive disputes involving private wealth, investments, trusts and estates, and her work is usually cross-border. Briant’s clients include high-net-worth individuals, business owners, trustees, executors and beneficiaries, and many of the cases that she works on involve fraud and dishonesty.

Yetunde Dania

Partner, property litigation
E: ydania@trowers.com
T: 0121 214 8822

Yetunde Dania specialises in residential landlord and tenant property matters for large and small housing associations, and UK and overseas-based private landlords with property portfolios in the UK. Her work includes contentious and non-contentious issues, such as providing advice and assistance to clients in complex possession and injunction claims, defending counterclaims for disrepair and/or allegations of alleged landlord-related regulatory failures, in both the county and magistrates’ courts, and she provides advice across the very wide spectrum of residential landlord and tenant legislation.

Michael Green

Partner, property litigation
E: mgreen@trowers.com
T: 0121 214 8861

With almost 20 years of real estate litigation experience acting for a range of private and public sector clients, Michael Green joined Trowers & Hamlins’ property litigation team in Birmingham in 2018 with the objective of broadening its practice. He acts for investors, corporate occupiers, developers and public sector bodies, including public sector pension funds and other investment funds. Green’s clients comprise a mix of real estate stakeholders in the Midlands, together with London-based clients. He has particular expertise in complex commercial landlord and tenant disputes, including those arising in the context of large-scale redevelopments.

Mark Kenkre

Partner, commercial litigation
E: mkenkre@trowers.com
T: 0121 214 8863

Mark Kenkre specialises in commercial litigation, arbitration and conducting investigations, with an emphasis on complex and commercially sensitive disputes involving allegations of fraud. He has an interest in technology, cyber crime and cyber security issues, including the development of fraud risks relating to blockchain technology and developments in legal technology, and he is a member of the Commercial Fraud Lawyers Association and the Fraud Advisory Panel.

Guy Willetts

Partner, property litigation
E: gwilletts@trowers.com
T: 0121 214 8845

Guy Willetts has more than 30 years’ experience in the resolution of property disputes, acting for owners or occupiers of all types of commercial property (including shops, offices, warehouses and industrial buildings), investors and developers, local authorities, pension funds, NHS trusts and government agencies. He has been involved in a number of landmark cases and is focused on getting the right result in the most cost-effective manner, which may involve alternative dispute resolution, including self-help remedies, mediation, arbitration or expert determination, with the courts as a last resort.

10 Colmore Row
Birmingham
B3 2QD

Tel: 0121 214 8800

Web: www.trowers.com

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Gilbert + Tobin: Disputes + Investigations

The disputes and investigations team at Gilbert + Tobin specialises in assisting clients to navigate complex and significant contentious issues. We work closely with our clients to develop an approach best suited to achieving their objectives and the protection of their interests. We understand that litigation should always be a last resort but, where necessary, needs to be handled strategically and commercially, and with jealous regard to your reputation.

Our lawyers have been and continue to be involved in Australia’s most high-profile commercial disputes, litigation, investigations and inquiries. Clients come to us for our sophisticated and strategic litigation and dispute resolution services across a broad range of legal areas. We work closely with clients to deliver focused, timely and cost-effective solutions. Continue reading “Sponsored firm profile: Gilbert + Tobin”

Involving a disputes lawyer in your business shouldn’t start when you get into a dispute

If you are in business, you are a technology business – this is the reality of the modern marketplace. From the smallest pop-up shop to FTSE 100 entities, technology is at the core. Digitalisation and automation are now woven through every aspect of business, whether front-end customer engagement, supply chains, outsourcing, back-end administration or compliance and audit functions. And this trend will continue; recent data shows many businesses are planning to spend between 20% and 50% of their investment capital on digital projects.

With that opportunity comes risk: increasingly, the prospects and viability of a business are tied to its tech.

Your business needs to be alive not just to the benefits that new technologies will bring to your operations, but also to the challenges inherent when introducing it and, once implemented, your increasing reliance on it. As your business becomes ever-more dependent on technology (with the rise of 5G, artificial intelligence, machine learning, cloud storage, big data and blockchain), so the scale of the risk to your business increases if that technology fails. Several companies have made unwanted headlines over high-profile tech disasters.

Planning for change

Most technology projects are intended as a catalyst for change within a business – whether to vital logistics and administration functions, the customer journey, or the business as a whole. Robust planning processes are essential from the beginning of such projects. All your stakeholders must buy in, so as to realise the changes you are seeking. And even with that planning and commitment in place, most IT implementation projects will often encounter time, money, resource and/or scope issues during their implementation.

Your business needs a clear strategy (commercial, technical and legal) to steer a course to success. And success will demand not just leadership and discipline from the senior management, but also a robust and holistic contract and implementation plan – covering everything from scoping, tendering, contact negotiation and signing, through to the ‘go-live’ and continued operation/upgrades and ultimately exit.

You need to think carefully about what you want to achieve with this new tech and how and when you want to achieve it. Are these deliverables understood by your providers and clearly set out in your contract? Are there sufficient incentives in your contract for the provider to deliver against the requirements and milestones? Will your operations, including your data, be sufficiently protected throughout this period of change?

Getting the right advice at the start could save a series of headaches (or worse) later on.

Planning for challenges

Inevitably, as with all projects, tech initiatives will see varying degrees of success. So you need to be prepared if, or more likely when, your project faces challenges. What levers do you have (contractual or otherwise) to get the project back on track?

And when a dispute materialises, the contract will be tested. Does it place escalation obligations on the parties that are constructive or distracting? Does it encourage co-operation or brinksmanship? How easy is it to withhold payment or services – or even terminate? What limitation and/or exclusion provisions apply? What about exit management? Having a clear strategy that can cater for both success and failure will be key in these circumstances.
Ultimately, you may need to bring or defend a claim. While this tends not to be a GC/board’s preferred option, the prospect of proceedings can sometimes be used strategically to achieve a final resolution, frequently without the need to go to trial.

Importantly, time is often a more critical factor in tech disputes than in many other forms of dispute. Technology evolves at a fast pace. Accordingly, in a dispute it can be vital for issues to be resolved before the existing tech on which the business presently depends becomes obsolete, or the market moves on and your investment (or even your whole operation) is sunk. Where timing is a factor, many businesses will want to consider alternative dispute resolution (ADR) before legal proceedings are commenced. This can include the new contractual adjudication scheme launched by the Society for Computers and Law, a three-month procedure that aims at swift settlement of tech disputes.

Even where a tech project has been implemented successfully, issues may arise later on. Such an issue could occur due to a security breach (eg, hacking incident) or human error (eg, accidental data disclosure). It is increasingly important for businesses to be as well drilled for tech incidents, such as a cyber-attack, as they are for a fire. Prompt action will be needed to secure your tech infrastructure, reassure your customers, regulators, workforce and investors, keep your supply chain intact, restore business critical operations, manage the media fallout and seek redress from the culprits. The extent to which businesses (even ‘big business’) are ready for this type of potentially business-critical risk varies greatly.

Planning for the future

The UK is the third-largest market for AI investment behind the US and China. A report by Microsoft last year showed 56% of businesses are adopting AI, and suggested every company may incorporate it in some form in the next five years. So, before too long, what we currently think of as ‘tech risk’ will just become ‘risk’. An office without email is unthinkable now, despite the fact that many senior executives began their careers in offices without much more than a single computer. It is likely the same will become true of AI, blockchain and many other ‘new technologies’.

Planning for success

As a business, you have a careful balancing act to manage. You will have to continue to evolve your IT systems to remain relevant and ahead of competitors, but you must also do what you can to ensure the new technology is implemented and operated in a way that is as low-risk as possible.

The success of your IT will increasingly go hand in hand with the fortunes of the business itself. Having tech issues resolved quickly and efficiently (and, yes, perhaps quietly), across all your operations and jurisdictions, will be essential.

Engaging the right advisers who can give the right guidance at the right time, taking a holistic view of the business (and not just tech) issues, with full-service capability to act across sectors and borders, and who are themselves tech competent and enabled, can save valuable resource, time and money – and potentially the business itself. And, while you can’t always plan for the unforeseen, having a strategy to deal with such risks will be invaluable in the event of unwanted interference in your business.

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