Silver lining
Amid economic gloom there is plenty of opportunity for the bar, says Lucy Trevelyan
Although a recession spells misery for some, for many barristers it is time to make hay while the sun shines. Downturns spawn disputes – as does an increasingly legislation-happy government – and while 2009 was largely a time for parties to assess their legal positions (thus boosting barristers’ advisory workload) the widely anticipated litigation boom now finally looks set to begin in earnest.
James Maurici, a planning and environmental specialist at Landmark Chambers, says that although planning suffered during the recession – with housebuilding and inquiry work both hit – the slowdown has not been as bad as expected. ‘Energy and infrastructure projects are going to be a major source of work. Also there seems to be more High Court litigation in the planning sector, even if inquiry work has dipped.’
Maurici predicts a surge in advisory/litigation work in his sector thanks to the Planning Act 2008 (and the concomitant consideration by the Independent Planning Commission of its first applications for consent), and the government’s adoption of national policy statements (NPSs) on ‘nationally significant infrastructure projects’ such as nuclear power generation, renewable energy and electricity networks.
‘The government claims the Planning Act will give communities a “far greater say” on such projects. However, many say communities will feel increasingly disenfranchised by the process leading to the grant of a development consent. This will make more likely court challenges to the development consent ultimately granted, or to other decisions, including the adoption of an NPS. Such challenges may be seen as the only remaining genuine opportunity to air objections to such proposals,’ he says.
A plethora of new and forthcoming legislation – including the Consumer Credit Act (CCA) 2006 and the 2008 Consumer Credit Directive – coupled with the credit crunch, will produce a hike in consumer credit litigation in 2010, says Richard Mawrey QC of Henderson Chambers.
‘The credit crunch has fuelled the “surge” in litigation in this area and the surge will continue until every possible loophole in consumer law has been exploited and dealt with by the courts,’ says Mawrey. ‘It is also likely that the regulators will increase their activities, particularly the Office of Fair Trading, which will obtain a considerable injection of funds from its cut of the new charges for consumer credit licences.’
There has been a huge increase in claims-farming and solicitors taking on bulk cases, attempting to exploit loopholes in the CCA to get people off their consumer credit debts, he says. ‘As the consequences are potentially serious for lenders, these cases tended to be fought tooth and nail and appealed by the unsuccessful. At the same time, the regulators, particularly the Financial Services Authority and the
OFT, have been hyperactive in interfering with established
practices such as payment protection insurance.’
The insurance and reinsurance sector has also seen a huge rise in instructions, says Simon Rainey QC of Quadrant Chambers, with marine, energy and financial institutions particularly active. ‘It is difficult to say why these areas are thriving, but it is probably related to the volatility in financial and commodities markets, the poor performance of many investments and recent fraud.’
Assureds, he says, are more willing to aggressively pursue insurers for indemnities and seek remedies for what they consider to be late payment of claims. Credit risks, financial institutions and related professional negligence will be the big areas of litigation/advisory work in 2010, he predicts, while the Law Commission’s review of insurance law may have an impact if its recommendations are enacted.
The effects of the credit crunch are rippling through to produce more work in the aviation sector, says Quadrant Chambers’ Robert Lawson QC, with debt-related work up. ‘This is particularly noticeable in asset finance work, where instructions concerning default of aircraft purchase agreements and leases are rising, particularly in relation to general aviation, as the once rich run into difficulties funding their ­executive jet habits.’
Recessions, he says, have a time-lag in litigation terms, so debt-related work is likely to occupy barristers in this sector for the foreseeable future, while the European Court of Justice’s decision regarding EC regulation on compensation for delay and cancellation will also lead to a flood of litigation against air carriers.
Recessions herald job cuts and, since slumps make it harder to find new posts, more disgruntled ex-employees are fighting lay-offs. ACAS’s annual report for 2008-2009 showed a 29% increase in unfair dismissal claims referred for conciliation and a 36% rise in redundancy claim referrals. Rises of 29% and 48% respectively in such claims were lodged with the Employment Tribunal System.
Jill Brown, a barrister at Outer Temple Chambers, says the rise in unfair dismissal and redundancy cases will provide plenty of work for the junior bar in 2010, but it is probably discrimination claims that represent the important growth area. ‘The enormous increase in equal pay claims in the past five years remains the single most significant development for practice in general. The number of equal pay cases reaching the appellate courts has mushroomed in recent years,’ she says.
Clive Sheldon of 11 Kings Bench Walk says age discrimination looks like taking on a higher profile in the coming year as older employees begin to appreciate the benefits of the legislation­.
‘Lots of equal pay cases are keeping employment lawyers busy. The Equality Bill, if it becomes an act in 2010, will impact on financial institutions with obligations of openness in pay schemes. There is also an increase in business competition claims, with valuable employees moving between firms in
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