Litigation / Dispute resolution

In a nutshell

Litigation solicitors assist clients in resolving civil disputes. Disputes can concern anything from unpaid bills or unfulfilled contract terms to problems between landlords and tenants, infringement of IP rights, construction-related claims, the liabilities of insurers, shipping cases, defective products, media and entertainment industry wrangles… the list is endless. And that’s just in the commercial sphere. The most common types of litigation involving private individuals are discussed at length in our personal injury overview.

If disputes are not settled by negotiation, they will be concluded either by court litigation or an alternative form of dispute resolution, hence the interchangeability of the terms ‘litigation’ and ‘dispute resolution’. The most common of these other methods are arbitration and mediation, the former is often stipulated as the preferred method in commercial contracts, the latter is generally achieved through structured negotiations between the parties, overseen by an independent mediator. These methods can still be problematic: mediation is not necessarily adequate for complex matters and some argue that opponents can use it as a means of ‘bleeding’ money from each other or as covert interrogation.

Confusingly, there are two divisions of the High Court dealing with major cases – the Chancery Division and the Queen’s Bench Division (QBD) – and each hears different types of case.

What lawyers do

• Advise clients on whether they have a valid claim, or whether to settle or fight a claim made against them.
• Gather evidence and witnesses to support the client’s position; develop case strategies.
• Issue court proceedings or embark on a process of alternative dispute resolution if correspondence with the defendant does not produce a satisfactory result.
• Represent clients at pre-trial hearings and case management conferences.
• Attend conferences with counsel (ie barristers) and brief them to conduct advocacy in hearings, trials and arbitrations.
• Attend trials, arbitrations and mediations with clients; provide assistance to barristers.

The realities of the job

• Work is driven by procedural rules and the timetable of the courts. Good litigators understand how best to manoeuvre within the system, while also developing winning case strategies.
• The phenomenal amount of paperwork generated means that young litigators spend much of their time sifting through documents, scheduling and copying them in order to provide the court and all other parties with an agreed bundle of evidence.
• Litigators need to express themselves succinctly and precisely.
• Unless the claim value is small, the solicitor’s job is more about case preparation than court performance. Solicitor-advocates are gaining ground, and once properly qualified they can appear in the higher courts. Nonetheless, barristers still dominate court advocacy and recently the performance of some solicitor-advocates was criticised by the judiciary.
• Trainee workloads largely depend on the type of firm and the type of clients represented. Big City firms won’t give trainees free rein on huge international banking disputes – they might not even go to court during their training contract – but they will be able to offer a small contribution to headline-making cases. Firms handling much smaller claims will often expect trainees to deal with all aspects of a case, from drafting correspondence and interim court applications to meetings with clients and settlement negotiations.
• There are a number of litigation-led law firms that handle cases of all sizes and these present the best opportunities for a litigation-heavy training contract.
• The Solicitors Regulation Authority (SRA) requires all trainee solicitors to gain some contentious experience. People tend to learn early on whether they are suited to this kind of work. Increasingly in big City firms, SRA requirements can be fulfilled by a litigation crash course.
• The competition for litigation jobs at NQ level is fierce. Concentrate on litigation-led firms if you are certain of your leanings.
• Despite a few firms like Herbert Smith and Hammonds starting up in-house advocacy units, the courts remain dominated by barristers, who are felt to have the edge when it comes to the skills and expertise needed to advocate. If you are determined to become both a solicitor and an advocate, certain areas of practice have more scope for advocacy – eg family, crime, employment and lower-value civil litigation.

Current issues

• Historically, London has been a popular forum for international litigation and arbitration. Some suggest this could be affected by an ECJ ruling that arbitration anti-suit injunctions are inconsistent with the Brussels regulation, but the sheer volume of cases (and from places as disparate as Russia and South America) does not appear to be slowing. Research in 2010 showed that London was still the most preferred and widely used seat of corporate arbitration.
• Lord Falconer of Thoroton QC predicted a “tsunami of [post-credit crunch] litigation,” but the common consensus is that it either hasn’t materialised or is taking longer to filter through. Since 2010, though, work has begun to pick up and litigators are generally pretty busy, with the expectation they will become even more so. Insurance litigation in particular has received a boost as more claims are filed and subsequently challenged.
• The recession has also led to speculation that the coming years will bring a mass of professional negligence litigation and major corporate fraud cases.
• Several major cases concern Russian oligarchs and matters from the former CIS, as well as finance-related disputes in the BVI. The bank charges litigation was the biggest dispute to hit the English courts in recent years, with more or less everyone who’s anyone involved.
• In 2011 the government announced its intention to implement the majority of the Jackson Report's proposals to reduce the costs of civil litigation. This will include reducing the burden of costs on defendants, for example by no longer allowing successful claimants to recover success fees to pay their lawyers from the losing party.
• Third-party litigation funding is emerging. Essentially an organisation that is not involved in a case, say a bank or private equity company, can choose to bank roll the cost of litigation for a share of the winnings.
• The challenges London now faces as an arbitration venue relate to costs and the increasing popularity of other locations, particularly Singapore. Some people worry that emerging economies such as China and India will look east for their preferred venue. Even if Singapore does become more popular, English law will still play a part, meaning UK arbitration lawyers would be likely to spend more time in Singapore.
• Bigger UK firms and US firms in London are handling more arbitration advocacy in-house and not instructing the bar. There is debate as to how successful and effective this is, but it’s certainly something these firms are pushing, especially for more run-of-the-mill cases.

Read our True Pictures on:

- These firms with offices in London

- These firms with offices in the South and Thames Valley

- These firms with offices in the East of England

- These firms with offices in the South West

- These firms with offices in the Midlands

- These firms with offices in the North East

- These firms with offices in the North West

- These firms with offices in Wales

- These firms for the specific area of banking litigation

- These firms for the specific area of real estate litigation

- These firms for the specific area of pensions litigation