The recent case of Motorola Solutions, Inc and another v Hytera Communications Corporation Ltd and others is a helpful reminder to all parties of the care that needs to be taken in relation to the rules of service of proceedings within the jurisdiction on a defendant’s solicitor, and in particular on the scope of acceptance of service.
Lord Justice Birss is a man with a lot of influence over the world of costs right now. Not only is he the Deputy Head of Civil Justice, but he also chairs the Civil Procedure Rule Committee and the Civil Justice Council’s (CJC) current costs review.
So he had a lot to talk about when addressing the Association of Costs Lawyers’ annual conference in London at the beginning of November. He did not disappoint. He talked about the choices the CJC working group is facing – he listed some of the many, many reform suggestions received in relation to costs budgeting – without indicating which way it is going. But it was when he went on to talk about three “bugbears” with the current costs system that he gave more of an idea of his thinking.
A multi-national, well-resourced corporate approaches your firm about a large, cross-border dispute which seems to have strong merits and will keep a litigation team busy for the next few years. That all sounds like a good day in the office until the client starts to ask about managing the costs and risks of running the case. They have the cash to pay legal bills, but they face internal pressures from management to constrain legal spend; there is concern over how to justify to shareholders the drain on the company’s financial resources over the next few years and the inherent risk of that spend not being recovered if the case loses.
The obvious suggestion is to advise the client to move the case “off balance sheet” by seeking funding: a third party will pay the legal bills, leaving the client’s cash available for investing in the business itself, and the financial risk of loss is taken on by the funder. However, lawyers should be actively helping clients to consider other approaches to managing their objectives and internal pressures.
