In the latest edition of our spotlight series, we speak to commercial litigation department head Nicola Bridge about the latest trends and predictions for the future.
Nicola is a Partner in the Dispute Resolution department and head of Mishcon de Reya's commercial litigation team. She is an experienced litigator, having advised clients on a variety of high profile, complex commercial disputes, often involving allegations of fraud, deceit and misappropriation.
Starting out in commercial litigation
I always wanted to be a lawyer, although I studied history at university and then converted to law. I trained at SJ Berwin and enjoyed my seat in commercial litigation, but when it came to qualification, I initially liked the idea of media law – it all seemed quite glamorous (particularly invitations to film premieres!). As it happened, however, the media team wasn't recruiting. In commercial litigation, I'd worked on certain aspects of a variety of large interesting matters but it was one very small claim – a dispute relating to an office party venue – that really made up my mind. As it was a small claim, I got lots of good experience: making oral applications for a time extension and specific disclosure, reviewing documents, interviewing witnesses, drafting witness statements and eventually seeing a trial in action. That gave me a fantastic insight into life as a litigation lawyer.
Ultimately, I'm glad that media wasn't recruiting – commercial litigation is dynamic, challenging and there's always something new to learn. Every piece of commercial litigation is different – there is no "typical" commercial litigation claim. Every case requires a bespoke approach, depending on the subject matter of the dispute, the client and their objectives. That's where your skill as a commercial litigator really shows.
From cage fighting to fighting fires
I've worked on lots of interesting cases over the years, as well as advisory work. I advised in relation to rights regarding the production of a cage fighting programme and worked on the dispute between the World Wrestling Federation and the World Wide Fund for Nature. I also advised on a dispute concerning the European distribution of a Hollywood film in which a number of sex scenes had been deleted for release in the US market. People might think that commercial litigation sounds dry, but you encounter all sorts of weird and wonderful things.
For me, though, the most interesting cases are the ones where you are working under pressure on a brand new matter, for example, acting on the defendant side in relation to an urgent freezing injunction. In those cases, you really are in the trenches with the client, fighting fires and trying to turn the tide and go back on the offensive.
The most important lesson I've learned is to listen carefully to your client. You really need to understand what their goals are to help them find an effective solution and that often requires a bit of creativity and thinking around the problem. You need all the facts at your fingertips. Sometimes clients and witnesses don't realise that they hold information which is relevant or important, so it's vital to ask the right questions and be wary of assuming anything.
Of course, no business wants to be faced with either having to bring or defend a claim, but sometimes it is unavoidable and there are steps that you can take to put yourself in the best shape possible to deal with that dispute. First, you should work out as quickly as possible what evidence will be relevant. Speak to the key personnel to try and capture their recollection of events. It's imperative that you don't delete or destroy any documents. You should also take care not to create anything unnecessary and avoid generating huge amounts of internal correspondence. Sort out your communication protocols and identify the team that will deal with the dispute. You should also think about the consequences of any litigation, both in terms of reputational concerns and the effects that litigation may have on any ongoing relationships. Always consider whether there are any alternatives to litigation.
Technology is playing an increasingly important role in commercial litigation. I recently acted in a large multiparty claim which culminated in an eleven week trial in the Chancery Division. We used technology assisted review during the disclosure exercise. The case management conference and a Court of Appeal hearing were entirely virtual and the trial was hybrid, with some participants in court and others attending remotely. Bundles were built and accessed via e-bundling software, and the lawyers communicated with each other via an instant messaging service. The technology worked well and certainly contributed to costs savings and other efficiencies. Parties from overseas didn't have to travel to London, but still had access to the hearing and could see what was going on. And when various participants unfortunately contracted Covid, the trial was still able to continue. In fact, the third defendant's counsel delivered their opening remotely and one expert remotely hot tubbed!
This is only the start – machine learning and automation has the potential to completely replace some standard legal activities. Meanwhile data scientists are hard at work analysing case law and building tools to predict possible outcomes and legal tech companies are coming up with solutions to make the process and practice of law more seamless. Mishcon is working closely with a number of those companies via MDR Lab, which means we have the opportunity to shape this brave new world and ensure our clients benefit from the resulting costs savings and other efficiencies as quickly as possible.
The future for commercial litigation
Recent statistics indicate that although 2020-2021 was a record year for the London Commercial Courts, the number of judgments has slightly dipped in the last year (to March 2022). I think that is an anomaly that can probably be attributed to COVID-19. During the pandemic, businesses were more willing to give their counterparty some flexibility, granting extensions to pay, or looking to alternative dispute resolution rather than immediately commencing proceedings. But as we emerge from the pandemic, businesses will need to try and maximise recovery of losses. I imagine we will see an uptick in claims. One thing is certain, London remains a competitive venue for commercial litigation. We are known in this jurisdiction for being able to handle the most complex of claims and that reputation still stands.
Indeed, as we head into recession, the counter-cyclical nature of litigation means claims are likely to increase. We will probably see more insolvency-related cases. ESG continues to be a hot topic and there are plenty of contract and insurance disputes following the pandemic. Businesses are increasingly thinking of litigation as an asset and the availability of litigation funding means that pursuing potential claims is less of a risk to a balance sheet. I don't think we'll be twiddling our thumbs any time soon!