Julian Acratopulo, partner at Clifford Chance, and the new president of the London Solicitors’ Litigation Association (LSLA), warns that competition for international dispute resolution is ‘fierce’ and there is no room for complacency.
What is your background in litigation?
I joined the litigation team at Clifford Chance on qualification in 1996, becoming a partner in 2006. I do a real mix of mainstream commercial contract disputes, joint venture and IT disputes, banking disputes and some product liability work, across a broad spectrum of industries, which include:
- financial services
- consumer and retail
- aerospace and defence
As head of the international commercial litigation group, I have an eye to both the international and domestic landscape.
I joined the LSLA eight years ago, encouraged by a fellow partner who stressed the importance of contributing more broadly than just doing the day job. It is also fun—I have met a broader range of colleagues that I would have done otherwise. During my two years as president, I will be making sure we engage in all the current issues and help shape the outcomes of consultations as part of that triangle of stakeholders—judges, lawyers and the ‘end users’, the businesses who turn to the courts to resolve disputes.
Competition is growing from other jurisdictions. What impact is Brexit having on that and how can the courts in England and Wales retain their leading role in dispute resolution?
We were seeing competition grow in other jurisdictions even before Brexit—Dubai International Financial Centre (DIFC), Qatar International Court, Abu Dhabi Global Markets Court and Singapore International Commercial Court. They are ambitious, well-funded organisations which are targeting, in the first instance, regional business that historically chose the English courts as the obvious neutral forum. They have also actively recruited retiring English judges to sit on their panels.
More recently, we have had the concept of English-speaking courts in Europe, for example in France, Germany, the Netherlands and Belgium, which have emerged in the shadow of Brexit. And that is before you even get into the question of international arbitration as an alternative to dispute resolution before the English courts.
The competition is fierce. The fact that these rivals have emerged shows that this is a prize to be fought over as our court system remains the envy of the legal world with its combination of common law and highly regarded judges.
The Portland Communications’ 2018 Commercial Courts Report reviewed the 158 cases heard in the commercial courts between March 2017 and April 2018, which is an increase of 7% on the previous year. Non-UK parties, who came from 69 different countries, accounted for 60% of litigants. Does this suggest the English courts remain the destination of choice for international litigants?
Business remains strong, but one needs to be careful with statistics. It would be a mistake to see them as a reason to ignore the competition.
There is no room for complacency as the challenge is very real, especially against the spectre of Brexit. The uncertainty it is creating is viewed as an opportunity by other jurisdictions. There is some anecdotal evidence of alternatives to English law and/or jurisdiction already being written into contracts. The current level of court activity is dealing with commercial contracts written before Brexit emerged—what is its impact going to be in four or five years?
With such strong competition, are the English courts listening to those using the courts about areas needing reform?
Disclosure is a prime example of feedback from those using the courts. It remains a very attractive feature, particularly for international parties, because it promotes a rigorous and robust judicial process, where the cards are face up on the table in terms of the underlying documentation. But there are also calls for a more streamlined process that ensures the appropriate level and scale of disclosure is applied to individual cases, given the costs involved.
The LSLA has been at the forefront of the dialogue between solicitors, the judiciary and court users to improve the current framework and expects the new rules to provide the court with a broad toolkit of options—but to encourage parties to consider disclosure and its implications at an earlier stage in their dispute. But when it comes to the full details of the final rules, it is a case of ‘watch this space’.
You have also mentioned the need for reform of witness statements, which is being considered by the Commercial Court Users Group. What is needed and why?
Witness statements were introduced to reduce the need for oral evidence at trial. They were designed to promote efficiency and reduce the length and cost of trials.
But there are concerns that this is not working in the way that it should. Does it get the best evidence from witnesses who are not given the opportunity to tell their story and are thrown cold into the cross examination? The statements are intended to stand as a record of the individual’s recollection of the key events. But, in practice, they are often far more expansive than that, involving a lengthy commentary on the underlying documents.
There is a menu of options for reform. There needs to be a greater focus on how to develop and enhance the current rules so there is more flexibility, while retaining the benefits of the statements in terms of transparency at an early stage in the case.
What role is technology starting to play in civil litigation?
From an LSLA perspective, there are interesting issues around the use of technology in the courtroom. The judiciary has hired Accenture UK Ltd to draw up a document called Judicial Ways of Working: 2022 to promote online courts and other ways of digital working and encourage judges to buy into the increasing use of technology.
While one might make the obvious comment that lawyers in general find change difficult, I do not think there is any unwillingness to embrace it in the courtroom where technology can help create an efficient environment and make the courts attractive.
The big issue is not the appetite for change but ensuring there is the appropriate infrastructure and judicial training—and that requires investment. Without it, the process will be more difficult.
At the same time, the process of preparing a case for trial also has to be more cost efficient and technology will become an ever more important part of delivering services to clients.
Senior judges have called on solicitors to consider becoming judges to help increase diversity. Should litigators be considering taking on a part time judicial role, in the same way barristers do?
There is an absolute appetite to diversify the judicial pool and to encourage solicitors to take up judicial posts. In practice, there have there been more judicial appointments from the solicitor ranks and more solicitors are applying.
But there are still issues with the system that perhaps act as a handbrake. What is the selection process testing? The system is used to the traditional route of barristers going to the bench. But it needs to be equally fair to solicitor applicants in what is obviously a very competitive process.
There are question marks whether there is enough flexibility in the system for those taking part time judicial roles to deal with the competing demands of the day job. Also, if the intention is to encourage more junior solicitors into part time roles, it begs the question how many solicitors at that level want to take that step when they have chosen to embark on a career as a solicitor and are still in the midst of that journey.
But this is about pace of change and it will take time because, while everyone is very supportive, the practicalities are very difficult.
At 47 and a partner for 12 years, would you consider a judicial role?
I haven’t actively explored it yet, but it is something I would give consideration to at an appropriate point in my career. At the moment, I am very happy doing what I am doing, including being president of the LSLA.
Interviewed by Grania Langdon-Down. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.