I was delighted to have the chance to put a few questions to Susan Dunn, co-founder of Harbour Litigation Funding, and a founding director of The Association of Litigation Funders in the UK.
In part 1 of my interview with Susan, she talked about her career and interests. In part 2, she gave some perspectives on litigation funding. In part 3, Susan considered what the future might hold for litigation funding. Finally, in part 4, Susan discusses the key challenges facing civil litigation in England and Wales, and the skills required to be an effective litigator.
Moving beyond funding to the wider picture, with experience as a litigator in private practice and as a funder, you have a unique perspective on how dispute resolution has changed over the last 20 years or so. You qualified as a solicitor in 1992 and worked as a commercial litigator in both the United Kingdom and the United States. Looking more widely at litigation generally, what would you say are the key differences between litigating today and litigating when you first qualified?
It is funny to think back to your young self. I think that the relationship between client and solicitor has got better in that it is more engaged, as opposed to, “Oh you know all the answers.” I think there is a more robust exchange that takes place. Likewise, between solicitors and counsel, there is less deference that goes on. That is only a good thing, in my view.
I think that the hierarchy that exists in law firms is still there. When I go to present to law firms I look at the way everybody is positioned, what they’re wearing and how they’re behaving. It is not that different from 1992, frankly (except that we weren’t allowed to wear trousers in 1992 – I once got sent home for wearing culottes, which were too much like trousers apparently!).
The same is true in the US, where they have the interaction of State and Federal Court to deal with, the density of pleadings, the regularity of interlocutory motion practice (which can slow cases down terribly) and the almost automatic right of appeal. It makes it very difficult for us to properly assess how long a case will take to reach a conclusion there.
They could probably do with something like the Woolf reforms (and, dare I say, the introduction of the adverse costs rule). I still believe that the Woolf reforms were transformative in many ways, in our system, as were the Jackson reforms, but we still need to find ways to make litigation in this jurisdiction less costly, or we risk other jurisdictions stealing a march on us.
So it is still the issue of costs…
I think, sometimes, we get too caught up in costly procedure, and lose sight of trying to determine the outcome of the case. Dealing with the administration of that process is expensive. That is why people like aspects of arbitration – because of the ability to cut to the chase and not get bogged down in procedure – though that doesn’t seem ultimately to have led to a lower cost for running arbitrations.
Well perhaps it is encouraging that a couple of initiatives have recently started for shorter and flexible trial procedures: giving the parties much more control over the procedure, limiting disclosure, controlling witness and expert evidence, and streamlining the process.
Absolutely – this is excellent news. We spend too much money on process and not enough on dealing with the merits of the case, which is all that clients want. I am sure clients are often quite bemused by the process and its accompanying expense.
What do you see as the key challenges facing civil litigation over the next five years or so?
I think getting lawyers to be truly proficient in budgeting and project management is the key and will thereby help drive down the cost of litigating.
We have got to start at law school. We have got to see reforms to that part of our education.
I think the expectations from the clients for better value service delivery are only going to increase. There will be more and more people in the technology sector, I think, who will want to find ways to make this process more efficient. This should allow lawyers to focus on the aspect of the case that they should enjoy the most – the strategy. The heart of the legal issues is the most enjoyable part after all, not the admin of the case (which can, and should, be done far more efficiently than it is currently).
So, I think, if our profession doesn’t figure out how to achieve that aim, then non-lawyers are going to find ways to commoditise aspects of litigation and offer those services to clients who, particularly in large corporates, are increasingly used to having to purchase services entirely based on fixed fees.
For example, if you look to Southeast Asia, more and more of their cases there are run on fixed fees, and competition for cases is high. We have been in a very privileged position here for so long. Can England maintain that? With the competitive threat from the Singapore International Commercial Court, for example, I don’t know.
…I suppose one question is whether there will be more cases…The issue fee has increased significantly, which, some have suggested, might lead to a significant reduction in the number of claims issued…although there are still some very big cases – including those involving Russian oligarchs…
Those apparently are all diminishing. I am told they are going to Cyprus and Singapore to conduct their litigation.
A leading barristers chambers said that 80%, now, of the work that they do is outside England and Wales. 80%. That is extraordinary. We have certainly seen the international reach of the enquiries we receive – it is the nature of commercial activity nowadays and also the fact that many arbitration clauses are now being relied on for adjudicating disputes, so we see an increase in enquiries in that area too. What we do has become truly a global business.
So we’ve talked about some of the changes since you started in practice and some of the key challenges facing litigators now. Finally, in your view, what are the key skills required to be a really effective litigator, post-Jackson?
I don’t think it is about post-Jackson. I think that what I’m about to say should always have been true.
It is very interesting to see the varied way in which legal services are delivered, and this ranges from how one is greeted when first arriving at a new firm all the way through to the communications about the case, thereafter. That experience is still so varied.
It has always been about really good communication. We still see too much poor management of expectations, whether about the litigation process or costs. Still not enough project planning and scoping at the outset is done to agree objectives about how the case is to be run, with the client. We would certainly like to see much more of that.
So, if you’re a really good communicator, you can manage your budget and you can manage the expectations of your client, you are going to have no shortage of clients. People say to me, “Oh it can’t be as easy as that”. But it really is – most lawyers we deal with are highly capable legally but there is a greater need for that project management skill base than we currently see.
As I said earlier, Australian lawyers do appear to use a higher degree of project management in what they do. Consistently thinking about the clients, the funder and what their objectives are for the litigation.
There is more a culture of funding in Australia, so perhaps they have got used to presenting their cases to funders. But you know, a funder only wants to see the same things that a client wants to see, in terms of a good plan and realistic budget for conducting the case.
They are, I am told, taught much more about project management at an earlier stage in their careers.
The judges also seem very “no nonsense”. They are prepared to “own” the case and not be afraid of interlocutory decisions being appealed, as their objective is to keep the case on track to being concluded. They also make even more extensive use of mediation there than we do.
That robustness filters down to lawyers not thinking that they have to take every point, and just being more streamlined in the way they conduct cases, which has to be a good thing.
When I spoke with Colin Passmore of Simmons & Simmons, he ended very positively in terms of recommending dispute resolution as a career choice…Would you agree with that?
Actually, you know, I would.
I look at my job and, amongst all my friends, I have the best job. That is a fantastic thing to be able to say. Because it is so varied, what we do. That is true of being a litigator. It can keep me awake at night, worrying about the likely outcomes of the cases we invest in, but the sheer variety of what we do gives us the most incredible window on the world, and that is a great privilege – I feel very fortunate to have this role.