Dispute resolution

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Richard Power, senior equity partner at Clyde & Co

Dispute resolution is what non-lawyers think of first when they imagine what lawyers do. Every film, book or TV show about lawyers focuses on dispute resolution. There’s a good reason for that: it can be exciting, interesting, frustrating, emotional, challenging and absorbing. Dispute resolution involves the determination of civil (ie non-criminal) disputes between parties and encompasses a number of sub-disciplines:

  • Litigation – where one party sues another in a national court. This could be a claim to recover a debt; a claim for damages for a breach of contract or a tortious act (eg negligent damage); for an order to get someone to stop doing something or behave in a certain way (an injunction); or to perform a contract (specific performance). It could be an application to review the conduct of the government or a council (judicial review). In any event, the parties present their case – often prepared by solicitors and presented by barristers – to a state-appointed judge who makes a binding decision about the claim.
  • Arbitration – a sort of private court where the parties appoint an arbitrator (or arbitrators) to hear their claim and to make a binding decision. The arbitration is private and proceedings are confidential. Arbitration is often used in international disputes so that the dispute is decided by an arbitrator of a different nationality than either party, in a neutral venue, rather than in the courts of one party.
  • Alternative dispute resolution (ADR) – ADR encompasses a number of different, usually consensual (non-binding), methods to resolve disputes, from simple negotiation through mediation (where a neutral third party attempts to broker a deal between the parties) to expert determination. Parties often use ADR alongside litigation or arbitration.

Key skills required in the job

Successful dispute resolution solicitors usually demonstrate some or all of the following characteristics:

  • Good knowledge of substantive law and procedural rules.
  • An analytical mind – in order to resolve a dispute, you have to identify what the real issues are, how the law applies to them and what the likely resolution of each issue is. But as well as that, you have to be able to analyse what each party’s motivations, strengths and weaknesses are, because that determines your strategy and tactics.
  • Attention to detail – you can lose a case because you’ve missed one crucial point or document. And even if it’s not crucial, judges and arbitrators don’t take kindly to being referred to a document in a hearing bundle which has been accidentally omitted.
  • Calmness – litigation can be stressful. It is an adversarial process and the other side will often try to make things as difficult as possible for you. Court- or arbitrator-imposed deadlines can be short and difficult to meet. Clients can be stressed and even act irrationally sometimes, because disputes are stressful and their continued financial existence is sometimes at stake.
  • A sense of humour – which helps with the stress!

Trends within the industry over recent years

Dispute resolution can be a costly business for clients – to litigate a complex commercial case to the end of a trial can cost £1m or more, and arbitration can be even more expensive as the parties pay the arbitrators’ fees too. Consequently, some of the recent trends have attempted to deal with that.

  • One of the most costly aspects of litigation is disclosure of documents relevant to the case, especially given the volume of electronic documents which are created. Hundreds of thousands of pounds can be incurred in collecting, sorting, analysing and listing documents relevant to a case. The new Disclosure Pilot Scheme in the Business and Property Courts attempts to move away from the previous automatic position of ‘full disclosure’ in litigation to a more nuanced approach, with disclosure ordered which is appropriate to each individual claim.
  • More claimants are turning to third party funders (TPFs) to fund the costs of bringing court and arbitration claims. Rather than a claimant having to pay their lawyers’ fees, which can cause cash flow issues or be too expensive to bear, TPFs pay the fees in return for a payment (usually a multiple of the sums advanced, or a percentage of the sums recovered) in the event of a successful outcome. That can be for one individual case or a portfolio of claims – for example Clyde & Co. recently agreed to act on the UK’s largest ever funded claims portfolio (almost 40 claims in all), working with LCM, a TPF listed on AIM.

Realities of the job

If you watch Suits or programmes like that, the protagonists work on one case at a time and they’re resolved in a few weeks. In fact, litigation and arbitration cases usually take months and months from commencement to judgment/award – 18 months to two years is probably average, and very large, complex cases can take even longer.

On a daily basis, dispute resolution lawyers tend to work in relatively small teams, although again more complex cases often involve bigger teams, especially when it comes to analysing documents disclosed by the other side. The working day tends to be shorter than that for transactional lawyers, BUT (i) you tend to pack in a lot of work into a short space of time because you’re working to court- or tribunal-imposed deadlines; and (ii) when you’re preparing for or attending a trial or another hearing, late nights and even all-nighters are not uncommon.

Case studies of the firm’s work in this area

Clyde & Co. is the UK’s biggest dispute resolution firm (by number of lawyers and number of claims in the UK courts and arbitrations in the London Court of International Arbitration). We undertake all types of dispute resolution work, from personal injury claims through real estate disputes and domestic and international commercial claims to investor-state arbitrations. Some examples are:

  • Acting for a Middle Eastern state defending numerous investor-state arbitration claims brought by multinational oil and gas companies in respect of exploration and production licences.
  • Defending a multinational law firm in a multimillion-pound malpractice claim brought by the firm’s former client, a FTSE100 company.
  • Advising a contractor consortium in disputes regarding extensions of time in relation to landslide works at a major airport.
  • Advising a contractor on numerous disputes with an employer responsible for refurbishing an aging UK nuclear power facility.

Clyde & Co

Website: www.clydeco.com