The Times - UK (2022-04-28)

the times | Thursday April 28 2022 55

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In conversation

Criminal defence

solicitor Hesham

Puri on the crisis in

legal aid funding

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Group litigation — allowing people
who have suffered losses in a similar
manner to pool their resources and go
to court together — has theoretically
been available in English common law
for decades.
However, actions are expensive, rely
on litigation funding companies and
are cumbersome to manage without
the help of technology — all points that
a new group aims to address.
The move comes against the back-
drop of a claim looming against
Mastercard, which is being brought by
Walter Merricks, the solicitor and
former financial services ombudsman,
and will be the first opt-out consumer
class action to go to trial. Several other
cases against rail companies, banks
and technology giants, had been wait-
ing in the wings until the Competition
Appeal Tribunal (CAT) certified
Merricks’s case.
Since then, three other opt-out class
actions worth billions have been given
the go-ahead, and decisions and hear-
ings are expected in applications relat-
ing to home insurance, user data, app
stores and trucks.
In only one claim so far — the foreign
exchange (FX) rigging ruling — has the
tribunal refused to allow a case to
proceed on an opt-out basis.
Writing today in The Brief, the week-
ly legal bulletin from The Times, Fran-
cesca Richmond, a partner at the
London office of US firm Baker
McKenzie, says the FX case is “likely to
be an outlier”. She suggests that an in-
creasing volume of applications for opt-
out certification “looks likely” and will
“be boosted as huge damage awards
start to be made”.
In anticipation of the boom, six law
firms have put aside competitive urges
to establish a collective redress associa-
tion for claimant practitioners and
others involved in group litigation.
The firms — Edwin Coe, Hausfeld &
Co, Keller Lenkner UK, Leigh Day,
Milberg London, and PGMBM —
founded the Collective Redress Law-
yers Association earlier this month.
Seeking more members, the group
wants to simplify the system and pro-
vide more efficient and effective mech-
anisms to enable greater access to jus-
tice for individuals to exercise their
rights collectively.
“Since group litigation — and other
forms of collective redress — has only

really taken off recently in the UK, the

procedural and practical framework

has yet to catch up,” says Guy Robson,

the vice-president of the group and a

partner at Keller Lenkner UK.

He says there is little in the civil pro-

cedure rules — the bible of court prac-

tice for lawyers — that directly address-

es group litigation on behalf of multiple

claimants. As a result, courts have to

“improvise work-arounds or stretch ex-

isting rules”, creating inconsistency

and ambiguity, and adding to costs.

Natasha Pearman, the association’s

treasurer and a partner at Milberg,

notes that the Supreme Court ruled in

the case of Lloyd v Google that “a

detailed legislative framework would

be preferable” and the group wants a

separate series of procedural rules to be

created for group litigation.

David Greene, a senior partner at

Edwin Coe and co-president of the

group, adds: “There is a distinct lack of

certainty about the process for group

litigation in the UK with much depend-

ing on individual decisions of judges.”

Agreeing, Susan Dunn, the founder

of Harbour Litigation Funding, says the

main problem is that the lack of legis-

lation means the approach to class

actions has developed piecemeal. “Our

system needs modernising to keep up

with what is needed to provide consum-

ers viable remedies against corporates

who otherwise know they will get away

with bad behaviour because there is not

the structure in place to facilitate claims

to call them to account,” she says.

In particular, Dunn says, the CAT is

unclear about what makes a certifiable

case. At the moment, the opt-out pro-

cess is limited to competition claims but

claimant firms want to see it extended

to other areas, including environmen-

tal, consumer and financial services.

Helen Evans QC, at 4 New Square

Chambers, acted for the Chartered

Institute of Arbitrators, its president,

various solicitors and others, who

were sued by a serial litigant in

person for £33.3 quadrillion over a

collapsed 2015 arbitration for a

contract to exchange plots of land

for gold. The High Court heard

that one of his claims — for

583,387,844,759,442,000,000,000kg

of gold — was for more gold than

has ever been mined in history. The

judge banned the litigant from suing

people connected with the case in

the High Court for two years.

What were the biggest hurdles you

had to overcome in this case? Being

presented with a bewildering array of

allegations and responding to those

claims in an accessible and sensitive

way. The challenge was compounded

when I tested positive for

Covid the day before the

hearing and had to

appear on screen.

What is the best

decision you have

taken as a lawyer?

Going to meet Sue

Carr, now Lady

Justice Carr, in 2001

for career advice.

Her enthusiasm

and encouragement

prompted me to choose the

professional negligence bar.

Whom do you most admire in the

law? My husband, a judge, and my

two greatest friends in chambers —

both female silks of around my

vintage. They share one key

attribute: a sense of

humour about the job.

What is the best

advice you have

received? If you

can’t imagine

reading a document

out in court without

cringing, then don’t

write it.

What is the funniest

thing that has happened in

your job? Asking a witness in

court whether he wanted to swear or

affirm, only to get the answer: “Well,

last time, I swore on the Bible and

the judge didn’t believe me.” It wasn’t

a great start to his evidence.

What are the best and worst

aspects of being a lawyer? The time

pressure can be relentless, but the

collegiality of chambers is fantastic.

What law would you enact? As

someone who spends far too much

time looking for chargers, a law

requiring all phones and gadgets to

use the same one.

What is your favourite film? I have a

soft spot for Home Alone. If only bad

guys always got their comeuppance

in such spectacular style.

Lawyer of the week Helen Evans QC

Linda Tsang

[email protected]

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exclusive to members

Tackling dirty money

New act is politically driven

Group litigation US-style

claims motor to hearings

Point of no return Give

criminal barristers a salary

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New rules needed for class action

Mastercard, sponsor of the Brits, is the subject of the first opt-out class action

Opt-out regimes, says Pearman,

have the advantage of ensuring that all

of the affected parties are legally repre-

sented and automatically entitled to

the remedies sought.

The alternative, an opt-in regime, she

says, requires significant financial in-

vestment, resources and time to build

the group and means that claims are

typically seeking recovery for a greater

sum of money per claimant.

As a result, she says, there is a gap

where small sums, which when com-

bined can equate to billions, are being

extracted from consumers by compa-

nies engaging in illegal conduct — and

they are not being held to account.

The growth of technology and social

media has made it easier to tell affected

consumers about claims. But, says

Dunn, defendants are generally best

placed to know the claimant group

and the default position should be that

they are ordered to alert them to

the claim.

Another problem, she says, is that

lawyers are not allowed to act on a

contingency or damages-based agree-

ment basis in the cases. That means

that litigation funding is the only way to

bring claims, leaving funders in a pre-

carious position that they only get

paid out of damages that are not

claimed by claimants.

“This creates an inherent conflict

which would be easily remedied by the

CAT judge approving the amount pay-

able to the funder when the case is

certified,” she says.

Present legislation and court rules do

not expressly provide the power to

allow claimants to recover the costs of

funding litigation, says Patrick Green

QC of Henderson Chambers. He sug-

gests they should be recoverable in

appropriate cases, including those

where the claimants’ inability to fund

the litigation has been caused by the

defendant.

Catherine Baksi

OUT OF COURT

The cases, the chatter, the chaos:

what’s really going on in the law

Solidarity for

legal aid fees

As a strike by criminal barristers

over legal aid rates entered its

third week, solicitor colleagues

held a meeting to decide what

they should do. There was an

appetite for action among 100

lawyers who attended a meeting

that was organised by the London

Criminal Courts Solicitors

Association this week. They

considered refusing the most

poorly paid cases — burglaries

and youth court work — as well as

holding “training days” instead of

attending court. As they wrestled

with how to persuade the

government to increase their fees,

it was fitting that the hall rang

with the sound of operatic singing

auditions for the musical Frozen.

Fish and chips Friday

Officials at Inner Temple

reopened the dining hall to

members on Monday tweeting:

“Do you want fish and chips to

come back on Fridays, or are you

likely to WFH so another day

would be best?”

The response has been 90 per

cent in favour of fish and chips on

Fridays. Gone are the bangers and

mash and gammon and fried egg

loved by Rumpole of the Bailey.

Judging by the Inn’s menu, the

modern barrister is keen on Cajun

chicken with mango salad and,

more horrifying to Rumpole, a

choice of vegetarian dishes.

Bar email cyber attack

A “malicious cyber attack” has

meant that Bar Council and Bar

Standards Board officials have

been unable to access their email

and internal databases for a

fortnight. It struck the day after

the launch of an “improved direct

access portal”, which helps the

public to instruct barristers

without a solicitor. In a joint

statement, the leadership of the

organisations said “action was

taken swiftly and required taking

our IT systems offline in order to

stop the attack and prevent any

data loss”. The deadline for

renewing barrister practising

certificates has been extended by

a month and a temporary waiver

given to allow lawyers who require

a provisional practising certificate

to take on work.

Changing call of nature

Edward Archer Wilde, a Victorian

solicitor who became the first Law

Society president, would be in for

a shock if he were to visit the

organisation’s headquarters in

Chancery Lane, London, today.

The professional body for solicitors

has adopted a gender-neutral

policy for its lavatories, which

were the preserve of men in

Wilde’s day. So his spirit could

bump into the present incumbent

— Stephanie — on the way in.