I recently had the pleasure of putting a few questions to Colin Passmore, Senior Partner of international law firm, Simmons & Simmons. In the third part of the interview, Colin considers what the future might hold for civil litigation in England and Wales. In Part 1, Colin told us about his background and early career. In Part 2, he gave some perspectives on recent legal developments and current issues.
Looking back over your career over the last 30 years, could you single out two cases as particular highlights of your career? It must be quite hard to choose just two.
The first was being in Hong Kong in 1987 on “Black Monday” when the stock markets crashed and the Hong Kong stock market closed. A huge amount of litigation came out of that, which I spent four years handling. We had a test case on whether futures trading was a legitimate form of financial services, or whether it amounted to gambling. That was a very very interesting case.
More recently, the Supreme Court decision in the bank charges case was another really really important case for the banking industry on the legitimacy of overdraft charges. That was a great case – the last opportunity I had to instruct Jonathan Sumption. So again, working with him, and, indeed, many many others, on that was, intellectually, a great challenge, as well as a high profile case. Great cases. Many many others.
Probably the one that has given me the most personal satisfaction was defeating a US extradition request – that was a much more emotionally charged case because of the impact it would have had on the clients if we had lost.
Many many other cases of course. But I think 1987, and the stock market crash, was an extraordinary time…I was probably too young to appreciate what was really going on, but it was wonderful.
What would you identify as being the key development (in terms of privilege) in the last couple of years?
We have seen a lot of cases on waiver of privilege. What really surprises me about a lot of the cases coming through is how parties and their advisers seem to get themselves into circumstances where a challenge is mounted that privilege has been lost because, I think, sometimes parties play a little too fast and loose with privilege – they don’t actually think it through enough. I think we all need to understand that privilege is such a precious and unique right. No other client/professional relationship comes anywhere close.
What I always say to clients is that you have to be really careful about how you use privilege with a third party or in an open context. Even if you are right that you haven’t waived privilege, you can end up with a very very expensive challenge. I think that, over the last two years, many of the cases I have seen are all to do with these sorts of issues.
I think that the other issue that is looming relates to the revelations, at the end of last year, about the security services undertaking covert surveillance and probably illegal “listening in”, and I think there is going to be a big debate about that, coming up (and I’ll talk more about that in a moment).
You have more than 30 years’ experience as a litigation lawyer. Taking it wider still, what are the key differences between litigating today and litigating when you first qualified?
I think what’s different – I look at the younger lawyers qualifying and I think, thank goodness, I qualified 30 years ago.
There is so much more law, there are so many databases – we’re supposed to know what is on Westlaw, BAILII and all the others. There are so many law reports. Then you have to get to grips with European law, human rights law, keep abreast of what is going on in Strasbourg, and there is so much more regulation now.
I sometimes wonder how we teach law, and how we learn law, and how we can get ourselves into a position to be a practitioner.
I think the consequence of that is that the lawyers coming through inevitably have to be so much more specialised. There is so much more law now than thirty years ago in the competition sector, for example, that it would be foolish for me to try to give advice on competition law without consulting one of my specialist colleagues. Similarly, with regulatory law and financial services regulations. There are people here, and in many other firms, who are just sheer experts. I think the day of the generalist is over. There are not many common lawyers left: probably even at the Bar. A few of us get away with it. I think that is the big difference. You have to specialise much sooner, and there is no getting away from that.
We’ve looked back. Now we’re going to look forward – which is always tricky. What do you see as the key challenges facing civil litigation over the next five years or so? And, if you had to predict three key changes what would they be?
I think one of the biggest challenges we face at the moment – and I just don’t think the courts and the judges appreciate this – is the amount of work that is involved in doing costs budgeting, and I think something is going to have to give on that. It has become such an admin exercise, and it requires us to “star gaze”, and I sometimes wonder “Do the judges really realise what they have introduced here?”.
That is currently quite a big challenge. And I can’t help feeling that it is going to have to be looked at.
I do wonder just how widely the consequences of some of the reforms are appreciated. It would be good for a judge, I think, to come and spend a day in the litigation department of a City law firm and see what happens. Look, I know that judges work very hard – I am not attacking the judiciary – far from it – but sometimes reforms work in a way that was not anticipated, and we have to deal with that.
I would secondly say, and acknowledge, that one of the things that sparked the Woolf reforms was problems and concerns over disclosure. I don’t think we are anywhere near cracking that. If anything it has got worse because of our sheer dependency on emails. We’re not alone in the City. There are many many lawyers in firms of all shapes and sizes that deal with cases where the size of disclosure has just got humungous because of the sheer numbers of emails we all send, the problems of finding those emails and then dealing with the wretched email chains that can sometimes go on for days. And the fact that we all produce so many drafts. When I started you were lucky to do a third draft, let alone 20 drafts – personally I think that if you are doing 20 drafts of a letter, something has gone very badly wrong , but it happens.
So I think we still haven’t dealt with disclosure. That is still a big challenge because it then spills over into costs, and costs are an ongoing worry. I think that clients are beginning to grapple with this, and a lot of us are investing in the technology to address this…
What is the solution?
I think, at some point, whilst I understand all the arguments in favour of wide disclosure, the reality is that when you get into court you use a fraction of these documents . We have somehow got to grow up and find a way of getting the core documents sorted much more quickly, and we have got to accept that, unless there is an ongoing desire to spend what can sometimes be hundreds of thousands, if not millions, of pounds, producing perfect disclosure. I think we are going to have to get away from that and accept that disclosure is not going to be perfect.
I think lawyers can be trusted to ensure that the key documents are found. There is always a risk that something that will get overlooked but I think that disclosure is going to have to be looked at again. I don’t have the answer, of course.
I think the third thing is that we are seeing attacks on privilege. I think there is real concern – justified concern -about some of the new data protection surveillance law that the government is looking at. That is of concern, particularly with what we learned, last year, about what the security services are already doing.
I know that, in the financial services sector, regulators and others are putting more and more pressure on clients to waive privilege. They accept that they can’t force it, but you are seen as cooperative if you waive privilege, and, whilst no-one is saying that you are uncooperative for asserting privilege, the implication is there and starting to build.
I think the challenges that the SFO is laying down with regard to privilege are something that we’re going to have to grapple with. It will be interesting to see how that all pans out in due course. But I know a lot of clients are worried that privilege may be under threat. It would be a sea change if that were to happen after 500 plus years of case law. I know the US justice system went through a similar thing and they seem to have come out of that, and privilege there is as strong as ever.
I’m not suggesting that privilege is going to be swept away – far from it – but there is some chipping at the edges. I think this is a prime example of where the Law Society, City of London Law Society, Bar Council and others can work together, even with organisations like Liberty, to make sure this does not go too far. A big issue, I think.
We’ve already spoken about how much you travel. You have considerable international experience, including a significant amount of time working in the UAE. Dubai and Singapore, for example, have been singled out as jurisdictions that are ahead of the game in terms of technology, for example. And a number of judges from England and Wales have recently moved to the Singapore International Commercial Court. Do you feel confident that the courts of England & Wales can retain their position as jurisdictions of choice, in the face of competition from the likes of Dubai and Singapore?
I think at the moment we can.
I’m not for a moment suggesting that we have the perfect justice system, and that the fledgling systems in Dubai, Singapore, Qatar, and other places, can be ignored. Absolutely not. But I think that, at the moment, you only have to go down to the courts and try to get a hearing date, to see how busy the courts are, and see how many judges seem to be being made up. I think when we all look at the amount of work we have on at the moment, I think this is still, perhaps together with New York, the pre-eminent litigation jurisdiction.
But there is concern – actually, for most of my career, there have been concerns – about the costs of litigation, increasingly so, in the run up to the Woolf reforms and since.
I do worry that clients, for example, may be turning more and more to arbitration where, interestingly, costs can be lower because – it is very interesting – solicitors do a lot more advocacy in arbitration in a way that they don’t, or are not allowed to, in High Court work.
So I think the court system has got to be mindful of that. It has got to be mindful of a lot of the admin that is now imposed on litigation, with things like costs budgeting and the case management conference (CMC) procedures. All of these things are, in a sense, right but, I still think that, unless we deal with these bigger issues such as the sheer cost of litigation or finding a less than perfect way of doing it, we may find that, in the course of the next 20 years (I certainly don’t think it is five years – it is a long haul that Dubai and Singapore and other places have). But, if they can come up with more cost effective ways of resolving disputes, that may start to impact on us and what we do here.
I think we have got to be mindful of the fact that Dubai and Singapore are in the heart of very big economies. The businessmen and others who litigate, and who live in those jurisdictions, those economies, may find that it is more attractive, easier, less travel, less “foreign” as it were, to litigate in their own courts. If you take Dubai and Singapore, and the QFC, they are all sophisticated entities, and are all attracting top retired judges from the UK. Once they begin to show their mettle and what they can do, and that judgments have standing and can be enforced, then they will start to show a more competitive edge.
At the moment, without sounding complacent for a nanosecond, I think this is still the pre-eminent jurisdiction, but we’ve really got to watch our backs.
What are the key skills required to be a really effective litigator, post-Jackson?
Leaving Jackson aside for the moment, I think that, whilst you have got to know your law, you have also got to be very commercial these days and able to apply your knowledge and assessment of the law in a way that tries to get the best possible result for the client, soonest.
Clients very often don’t want to litigate. It is time consuming, stressful, very expensive, and gets in the way of doing business. The best litigators are the most commercial who can get a resolution, can guide the client, accepting that some parts of the case are not as good as others, or can deal with the client’s demands to get rid of it, to get it finished. You need a lot of those skills.
I think, unfortunately, you need to be quite specialist. You can’t, for example, be a specialist in insurance law and a specialist in financial services regulations because you need to know your insurance market and, equally, you need to know your financial services market. If you want to be a specialist in, say, oil and gas disputes, again, you can’t – as you could in my day – just sort of flit from one subject to another.
You also have to be in tune with what is going on at the courts in terms of the actual procedural side of things. That has assumed an importance, with all the to-ing and fro-ing over Mitchell . It is obviously right that if there are deadlines set, you have to comply with them, but it is knowing what the consequences are, knowing that you have to be ready with all the various types of document at the CMC.
I just have a sense of a lot more procedural concerns: mostly quite right but sometimes it is burdensome, and sometimes it just gets a little bit bureaucratic. Thank heavens we have wonderful professional support lawyers who guide us through some of this sometimes (and Practical Law of course) – PLC and PSLs, yes!
What would you say to anyone considering qualifying as a civil litigator?
I have absolutely no regrets about having been a civil litigator.
Whilst I’m pleased I qualified 30 years ago, and not today, I wouldn’t put anyone off, as long as they know it is hard work, it is challenging – but intellectually challenging. It is rewarding in all senses of that word. Yes – there are always frustrations with any type of law you do – whether transactional or non-transactional – there are always bits of admin and tedium. But the sort of work we do, you come across the most amazing problems, situations, challenges, people. You get access to top people at the Bar, you see top litigators in action.
Just do it! It is a good career – a good job.
But be aware of what is coming. Be aware of all the changes that are likely to come, and you have just got to be adept at keeping up to date with them.
It is great to end on such a positive note and that you still feel so enthusiastic after more than 30 years in the profession, and still recommend it.
Well I still litigate. It gives me credibility, keeps me in touch with the clients and, frankly, I would miss it hugely if I didn’t do it. It keeps me on my toes as well!