BARRISTERS IN 2010
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potential breach of restrictive covenants,’ he adds.
He predicts more work for the employment bar in the near future, but also more competition ‘as solicitors do more and more advocacy, and barristers fleeing less busy/lucrative areas of work to muscle in on employment law’.
Simon Ray, a criminal barrister at 6 Kings Bench Walk, says that since the recession started to bite, those in the criminal fraud/regulatory sector have been predicting an increase in fraud prosecutions.
‘It is also expected that regulatory bodies that were previously content to use civil disciplinary sanctions will increasingly look to use their powers to prosecute. There is also likely to be an increase in corruption cases.’
He predicts a rise in the number of arrests for ‘white collar’ crime and in litigation concerning, for example, the retention of DNA and fingerprints, plus more ancillary litigation in areas like restraint, confiscation and civil recovery.
James Dawes, of 2 Harcourt Buildings, says the inexorable rise in prosecutions for money laundering offences will continue to prove a fertile area of advisory work as professionals who handle client funds are particularly vulnerable to such accusations.
‘Fraud is expensive to investigate, expensive to prosecute and expensive to defend. The penalties for fraudsters are often low relative to other more newsworthy crimes. This makes it ripe for budget cuts in the police and the prosecution authorities. This would prove a false economy in my view, as fraudsters are on the rise but may prove tempting to an austerity-minded regime.’
According to Sasha Wass QC, a criminal barrister at 6 Kings Bench Walk, there is much more fraud work around of all levels, from petty to highly sophisticated. ‘One of my concerns is that financial constraints influence the question of whether to prosecute offences at all. This will not boost public confidence in the criminal justice system.’
She says the introduction of in-house lawyers taking on court cases beyond their capability has led to a drop in the general standard in the way cases are conducted. She also predicts a greater division between publicly funded and privately funded work.
Commercial fraud specialist Michael Patchett-Joyce of OTC says the domestic and EU regulation of financial services will be a significant area of work in the coming year. ‘Certainly such work will involve advice on compliance, but might also involve vires challenges and, thereafter, civil, criminal and regulatory litigation. I would also expect that mis-selling claims, already a feature of pensions work, will become more widespread across the whole of the financial services sector.’
Andrew George, commercial law barrister at Blackstone Chambers, says there has been a particular increase in regulatory investigations and enforcement arising out of the government bailout of the banking sector. ‘Increasingly, and no doubt due partly to the election looming next year, debates about the future of regulation are becoming more politicised and of greater relevance to the country’s wider economic issues. There is also the beginning of an increase in claims for the alleged mis-selling of financial products and mismanagement of portfolios. Frauds usually become more apparent in times of market volatility,’ he says.
In the Commercial Court at present, he says, there is also complicated litigation arising out of the break-up of the former Soviet Union (including the case brought by Boris Berezovsky against Roman Abramovich, which Abramovich contests, in which he is instructed).
He says: ‘In terms of the changing nature of the work, regulators are more willing to test the limits of their powers by imposing more extreme sanctions than they might have done previously. Consequently, individuals affected increasingly have little to lose by mounting challenges to regulatory decisions.’
Tim Howe QC, a commercial dispute resolution specialist at Fountain Court, says high-value commercial disputes are rife, and involve investors, funds, banks and/or fund managers, and particularly with reference to leveraged investments in complex structured products, plus asset-backed securities, credit default swaps and a range of notes, bonds and other investments that lost value as a result of the credit crisis, causing substantial losses.
He adds: ‘The events of 2008 generated a lot of advisory work as the affected parties worked through their legal, strategic and tactical positions, ascertained their rights and obligations, and evaluated their claims and/or exposures, and took advice on the appropriate steps to protect their positions and prepare their cases in anticipation of bringing or facing claims. However, this year claims are being commenced and pursued to a significantly greater extent, and this has resulted in the nature of the work changing more to active litigation.’
Professor Mark Watson-Gandy of 13 Old Square says insolvency was not as busy this year as expected. ‘This is probably because even the living dead seem bent on only “going down fighting”. If anything, 2009 was the “year of the welch”. Companies tried to find defences or counterclaims to re-haggle their exposure on borrowing. Directors tried to wriggle out of guarantees. Banks tried to renege on or renegotiate terms of lending.’
This doesn’t mean insolvencies aren’t coming, he says. ‘After all, litigation is not the most financially sound way to extend your borrowing terms. It just means it is taking longer than expected for companies and debtors to teeter over the brink. The fall-out will happen. It just looks as if it will take three to four years before the credit crunch’s full effects find their way into the courts.’
Serle Court commercial barrister John Machell says the fall-out from the credit crunch will mean more cases raising specific banking, finance and insolvency issues, plus an increase in the number of disputes between business owners, partners and joint venturers caused by the strain of the economic situation.
Machell says his sector has been affected dramatically by the increase in the number of partners being made redundant. ‘Over recent years, there has been a strong trend in favour of the inclusion of no-fault expulsion clauses in partnership and LLP agreements and, although most departures have been by agreement, agreement has often been driven by the threat of the exercise of the power to remove. The removal of significant numbers of partners in this way has caused a considerable amount of unease among rank-and-file members of many firms, and what the long-term cultural impact of this may be remains to be seen.’
Outer Temple Chambers barrister Charles Foster says disciplinary and regulatory lawyers are happily frantic, with plenty of work in all corners of the speciality: healthcare, police, financial services and so on.
Foster explains: ‘We are increasingly a whingeing, complaining society. The public increasingly knows about its rights and the corresponding professional responsibilities. There also seems to be an insatiable human appetite for conflict, and litigation is one of the ways of sating that. As funding for other types of litigation dries up, people look elsewhere to meet their need for vindication. To make a complaint to a professional body costs the member of the public nothing, and creates a gratifying amount of havoc and media attention.’
Energy, construction and international arbitration are all thriving, says Lionel Persey QC of Quadrant Chambers. ‘There has been a significant increase in the number of instructions coming to the bar in offshore construction/
shipbuilding cases over the past year. Parties are looking to get out of their contracts or to renegotiate them on more favourable terms. The international arbitration sector will be very busy over the next two years as the credit crunch continues to take its toll and the disputes work their way through the system.’
The recession might be maintaining its grip, but in the realms of consumer credit, fraud and insolvencies – and a host of other practice areas – barristers face a busy 2010 as serious thought is given to litigation. n
Lucy Trevelyan is a freelance journalist
Legal Services Directory 2010
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