Freshfields partner Paul Bowden talks to Eduardo Reyes about the changing face of global disputes, teaching a lost generation of nuclear lawyers and maintaining access to justice
Times of rapid, far-reaching change invite talk of ‘burning platforms’, ‘perfect storms’ and ‘shifting tectonic plates’. The landscape of commercial litigation, and the contentious and regulatory risks faced by corporate clients, have certainly altered rapidly in the past decade – with an exponential increase in their complexity.
But conversations with Freshfields Bruckhaus Deringer’s Paul Bowden can leave one feeling that, with a bit of careful thought, all these challenges can be safely navigated.
Bowden’s calm, good-humoured courtesy may be a pre-requisite in his areas of expertise, which include nuclear energy and product litigation – high-risk sectors where those prone to panic need not apply. But he is also every inch the teacher. For 12 years he combined partnership at Freshfields with his commitments as chair of Nottingham Law School, and recently became programme leader of the Nuclear Energy Agency’s International School of Nuclear Law at the University of Montpellier in France.
Pyramids and diamonds
Bowden caused a mini-controversy a decade ago in comments that challenged the traditional view of the corporate law firm practice as a ‘pyramid’ – predicting that, in disputes at least, the future was ‘diamond-shaped’. This was not about culling the trainee intake and focusing on experienced lateral hires, he now insists, but about improving retention rates.
In his view, the holistic learning process must not come to a halt at the end of tertiary education: ‘In my practice I have always encouraged people joining to treat their careers as associates as a continuation of university – as a place where you are constantly learning, where you are challenged and stretched, but in a supportive environment, and you are actually enjoying it.’ One reason why law firms large and small ‘tend to end up as pyramid structures’, he adds, is because ‘in an individual’s career there are, quite rightly, moments of reflection when they decide if this still is the right place to be learning’. That used to occur at four or five years’ PQE – he thinks it is a bit earlier now, at around three years. The question that needed to be answered, Bowden says, was: ‘What can we do to try and persuade our associates that this is still the best place to be for the purpose of their own careers?’
The answer, he says, is partners who are ‘constantly mentoring on files’ while giving assistants as much responsibility as possible. This must be combined with appraisals that are based on practice development. ‘We don’t talk about success, because that is all very subjective, but we are constantly looking for places where the associate feels there are gaps where they need to develop.’
That progression is more important than ever, he argues, because the complexity of what lawyers are required to do for clients is greater than ever. Gone, he says, are the days when dispute lawyers’ bread-and-butter work comprised large setpiece litigation. For, as Bowden notes: ‘There is now much more activity in the regulatory space – financial services, food, environment, consumer – and the degree of regulatory interest, intervention and enforcement activity has increased exponentially. This is a global phenomenon.’
The nature of litigation has also changed, he notes, often requiring litigators to take on the role of ‘global co-ordinating counsel’. In part, the role refers to the logistical challenge of managing the growing number of cross-border cases. An even greater challenge, Bowden adds, is ‘serial global litigation’. This is where clients ‘face a particular type of claim in a particular jurisdiction and instruct a litigator of choice, and no sooner is it over than, in effect, a dispute on the same facts, referring to the same documents and witnesses, springs up in not one but two, three or four jurisdictions’. In such instances, the co-ordinating counsel role is one not just of project management, but also that of knowledge manager, and even ‘teacher’.
BORN Bolton, Lancashire
UNIVERSITY Bristol University
JOBS Solicitor, Freshfields Bruckhaus Deringer (England and Wales, Hong Kong)
OTHER ROLES Programme leader of the OECD Nuclear Energy Agency International School of Nuclear Law at the University of Montpellier, board member of the World Nuclear Association, ex-member of the English Joint Bar/Law Society Working Party on Civil Justice and member of the Multi-Party Action Working Group in Lord Woolf’s Review of Civil Justice in England and Wales, past chair of Nottingham Law School
LANGUAGES English, French
That global view, he notes, matches new ways in which claimant lawyers are behaving. ‘Experienced plaintiff counsel’s communication in the age of the internet is extraordinary,’ he explains. ‘So one can’t take a modified but convenient position in jurisdiction A, because you have to assume it will be picked up in jurisdiction B – from pleadings, trial report, and chatter on the internet.’
The web has, Bowden adds, ‘any number of "claims in a box", often class or group actions. These lawyers are publicising how they’ve structured the claim. Why? Because if lawyers elsewhere picked up this line of litigation, that can only serve to reinforce the litigation. It’s a very powerful aspect of plaintiff lawyers’ collaboration.’
‘Full monty’ approach
Closer to home, the Jackson reforms and the rise of litigation funding are changing the landscape radically. An authority on Woolf – in 1998 he authored Butterworths’ The Woolf Reforms in Practice – Bowden describes the Woolf reforms as ‘structural’, and Jackson as ‘economic’.
Jackson, he says, will change litigation for all sides. While the degree to which the judiciary really will become more ‘activist’ in costs management is difficult to predict, he says, Bowden sees an immediate impact on the use of expert witnesses. ‘Will plaintiffs or defendants no longer take the "full monty" approach with regard to expert witnesses, using two instead of five? It will be a key strategic view to take, and to warn clients about.’
Litigators instructed by corporate counsel have shown that disputes can be properly costed: ‘Commercial litigators have absolutely blown away the myth that you can’t cost litigation. For their commercial clients, there can be no surprises.’ Corporate clients are much more active partners in litigation planning, Bowden observes, and the days of the ‘annual budget’ for a large case ‘are gone’.
A bigger concern, he thinks, relates to the impact of the reforms on access to justice: ‘I wonder whether certain types of claim where access to justice is a key issue will be economically viable any more in a DBA [damages-based agreement] environment. Especially large-scale consumer claims, where each member’s claim value may actually be very small.’ He adds: ‘Wherever there are structural reforms, there has to be quite careful reflection on their impact on the ability of people generally to [exercise] their rights.’
In a different part of the market, for a growing number of foreign parties London has become a destination of choice for disputes – assisted, Bowden says, by the right-turn he now makes out of Freshfields, towards the Rolls Building, instead of left to the Royal Courts of Justice.
The vast majority of cases heard in the Rolls Building have at least one foreign party. As one would expect, Bowden recognises: ‘There are certain remedies in the English courts not available in other jurisdictions, and an extraordinary sophistication available to anyone with a high-value dispute.’ But he seems to caution against taking this relative boom for granted: ‘One also has to recognise – if you litigate here, you litigate in a system that has a "doors open to the public policy" in a country with a robustly free press.’
Further, he adds: ‘I have no evidence, but I’ve picked up on some suggestions that the expatriation [of disputes to London] that has taken place is causing a certain level of concern [abroad]. I do wonder if there will at some point be some jurisdictions – be it through judicial or political reactions – where money judgments in the High Court here become more difficult to enforce in the home state.’
Such uncertainties do not seem to undermine Bowden’s conviction that all parts of the legal profession should be closely focused on ‘capacity building’. Some of that capacity, he argues, relates to very specific areas. The law around nuclear energy is an example; it is one of the ‘important areas of law’ that ‘doesn’t sit in conventional syllabuses’. ‘In international nuclear law, there is, for economic and political reasons, almost a lost generation of lawyers, who lack the knowledge to ensure the critical legal infrastructure that allows the safe use of nuclear power.’
Hence support for the Nuclear Energy Agency’s programme at Montpellier University. Of course, Bowden is one of ‘relatively few people available to teach it’. He adds: ‘It’s a significant gap in capacity and someone has to help fill it.’ Reflecting on his time at Nottingham, Bowden says that, in general terms, capacity building is also about the breadth of experience that very different lawyers gain from working and studying with one another. ‘Nottingham was – and is – a place where very talented lawyers who are going to become specialists in social security law in the north-west of England study alongside equally talented young people who become asset finance lawyers down in the City of London.’
He concludes: ‘If you can’t bring together those different perspectives at that stage in people’s training, one is losing a great deal.’
Eduardo Reyes is Gazette features editor