Wynne Lawrence

Climate change: A City lawyer’s perspective

Ahead of Thursday’s event, ‘Climate change and the law’, senior associate Wynne Lawrence explains how Clyde & Co is helping its clients prepare for a greener future

“Corporate clients are increasingly aware of the risks climate change poses to the way their businesses operate, as well as the opportunities for whole new areas of business to open up, as we move towards a more climate-resilient and low-carbon economy,” says Wynne Lawrence, a senior associate in Clyde & Co’s London office. “A growing body of international regulations and national laws, fuelled, in part, by changing attitudes toward climate science and policy, is presenting new opportunities for lawyers in assisting clients navigate the rapidly changing risk landscape.”

In response to this shift in focus, Clyde & Co launched a cross-practice area climate change resilience initiative to help advise clients on the new challenges they face. The group, headed up by Clyde & Co partner Nigel Brook, spans sectors including insurance & reinsurance, shipping, aviation, tech, energy & natural resources and global trade.

“I got involved in 2016 following a speech by the Governor of the Bank of England, Mark Carney, to the insurance market Lloyd’s of London”, insurance & reinsurance specialist Lawrence explains. “Carney highlighted, among other things, the severe threats posed by climate change to the financial sector. So, with this in mind, we started working to build our knowledge around the potential issues, particularity with regards to the insurance sector. Clyde & Co’s climate risk and resilience group has grown and expanded internationally and across practice areas.”

The group’s focus over the past two years or so has been to provide guidance on climate-related risk management and regulatory issues, including through the firm’s online ‘Resilience’ hub, which hosts firm reports, articles, explainers and even a podcast featuring Lawrence and Brook.

Lawrence, who will be speaking at Thursday’s panel event, ‘Climate change and the law — with Clyde & Co’, continues:

“Through our climate risk consultancy, we assist clients in identifying risks posed by climate change to their businesses, supply chains, assets and infrastructure. This includes risks and opportunities associated with the shift towards a low carbon economy, as well as liability risks, the prospect of legal claims by those suffering losses due to climate change.”

The heightened awareness, which stems, in part, from a societal shift to combat the growing threat of climate change, will likely result in other big legal players launching similar initiatives, predicts Lawrence. “It’s inevitable that others will follow. Climate change, unfortunately, isn’t a problem which is going to go away — so there will continue to be a need for legal guidance,” she says.

There’s also been an upturn in climate-related litigation, notes Canadian-born Lawrence, who studied International Relations at the University of Toronto before relocating to London to complete a masters at the London School of Economics.

Find out more about training at Clyde & Co

A recent Clyde & Co report, ‘Climate change: Liability risks, a rising tide of litigation’, describes how over 1,200 climate change cases have been filed in more than 30 jurisdictions to date. The first wave of legal action, Lawrence explains, is targeted predominantly at governments and municipalities over their alleged failure to comply with their international environmental commitments.

One such example of this can be found in Pakistan, where a Karachi farmer challenged the government’s alleged failure to control air pollution. The High Court later ruled that the government must disclose details of what it was doing to address the problem in the country, which in turn led to Pakistan’s environmental protection agency installing air quality monitors and warning factories to add air cleaning filters to smoke-emitting chimneys.

This upturn in action is also partly in response to the way the courts, particularly in the US, are now looking at environmental issues as a legal problem as opposed to a political one, according to Lawrence. “This coupled with a greater understanding of climate risk through advancements in science has seen more and more cases come before the courts,” she explains.

Climate work aside, Lawrence was first attracted to Clyde & Co due to its strong international presence. Since joining as a trainee in 2012, she’s had the opportunity to spend time in the firm’s offices in Johannesburg, Cape Town as part of Clyde & Co’s Global Associate Programme — an international secondment initiative for its associates, and Toronto, as well as a six-month stint in Hong Kong as a trainee.

Away from the cut and thrust of corporate law, Lawrence likes to indulge in a spot of martial arts. “I did Kung Fu at school and Judo during my time at college. I am in the process of training towards my black belt in Aikido — it’s a great way to unwind at the end of the day,” she tells Legal Cheek Careers.

So what advice does Lawrence have for readers looking to follow in her footsteps and work for an international law firm? She tells us:

“Think carefully about the firms you’re applying to. Taking a focused, tailored approach to your training contract applications will be far more effective than a scattergun one. Ask yourself, ‘why do I want to work for this firm?’ and be sure you know the answer. It will be easy to spot — even at the application stage — if you’re not genuinely interested in or serious about the firm.”

Wynne Lawrence will be speaking alongside other Clyde & Co lawyers at Thursday’s ‘Climate change and the law’ event. The event is fully booked, however you can still apply to the waiting list.

Counsel fee not fixed for claim which left protocol

Counsel fees for a case which dropped out of the pre-action protocol do not need to be fixed, a senior costs judge has ruled.

Master Brown, sitting in the High Court (Senior Courts Costs Office), rejected an appeal from the defendant in Dover v Finsbury Food Group Plc to restrict costs to the fixed £150, instead upholding a decision of a costs officer to award £500. He held that the relevant provisions permitted recovery of counsel’s fee for advising in conference as a disbursement.

The personal injury claim was started under the pre-action protocol for low-value personal injury, but settled for £70,000 after leaving the portal.

In their points of dispute, the defendant disputed any entitlement to payment of counsel’s fee, contending that no such fee was payable under the relevant provisions in a claim which exited the protocol. It was submitted the costs were deemed to be included within the fixed fees.

Master Brown cited Qader, where Lord Justice Briggs (as he then was) described the protocol as providing an efficient modern framework for resolving modest PI claims, but not designed for resolving large claims or complex disputes. The judge in Qader ruled that PI cases that leave the portal and continue on the multi-track were not subject to fixed costs.

The defendants argued in Dover that the detail of Civil Procedure Rules did not permit recovery of specialist or counsel advice if incurred after a claim has exited the protocol. Master Brown said this reading of the provisions was ‘strained’ and there was no such restriction.

The judge said it was clear the government, when it adopted the rules, was concerned that without the provision of such costs, claims would be under-settled. Hence, specialist and independent advice (if reasonably required) would be payable by, in effect, a ring-fenced payment in the form of a disbursement.

He added: ‘In cases which exit the protocols on the grounds that the value exceeds £25,000, it is difficult to see, given the likely added complexity associated with them that it must have been intended that costs of any independent advice required would be so limited.’ The defendant’s appeal was dismissed.

How Will Plans to End Free Movement Affect EU Workforce?

The Home Office has recently issued a factsheet indicating that freedom of movement as it currently stands will end on 31 October 2019 and that arrangements for people coming to the UK for longer periods for work or study will change. What does this mean in practice and how should employers prepare?

A draft Immigration Bill drafted published by Theresa May’s government had already envisaged an end to free movement following a no-deal exit. However, to avoid a “cliff-edge” until a new immigration system could be put in place, the Home Office planned to introduce transitional arrangements for EU, EEA and Swiss citizens and their family members arriving in the UK between exit date and 31 December 2020. Those coming to the UK for short visits for any reason would be able to enter as they can now and stay for up to three months for each entry. Those wishing to stay in the UK for longer would need to apply to the Home Office for EU temporary leave to remain within three months of arrival (giving 36 months’ permission to live, work and study) after which they would need to apply under the UK’s future immigration system (expected to be introduced from January 2021).

The Home Office announcement and further reports now indicate the shelving of these transitional arrangements to be replaced by a new immigration system immediately applicable to new arrivals following a no-deal exit. There is very unlikely to be the time and resource to put in place such a system or the legislation which will underpin it. The Home Office is already stretched and the UK’s current Points Based System took nearly four years to design and implement. We may, therefore, still end up with some form of transitional registration system but the Government’s current direction of travel suggests this is likely to be more onerous than the EU temporary leave envisaged under Theresa May. Employers who had good reason to believe that they would be able to continue to recruit from the EU with relative ease until the end of 2020 (even in a no-deal scenario), should prepare for the possibility of new hires arriving the EU from 31 October 2019 needing some form of immigration permission prior to starting work. Exactly what this will entail, including the qualifying criteria, cost and application process, remains to be seen and we will providing updates as matters develop.

In any event, the Government has made clear that an immediate end to free movement following a no-deal exit will not affect the ability of EU, EEA and Swiss citizens and their families already resident in the UK by 31 October 2019 to continue living and working here, as long as they apply for status under the EU Settlement Scheme before 31 December 2020. Nonetheless, as a precaution, employers should support their affected employees to obtain (or apply for) pre-settled or settled status under the Scheme before 31 October 2019 (or at least prior to their next trip outside the UK) to reduce difficulties on re-entry by having to prove their prior UK residence by some other means. Current average processing times under the Scheme are reasonably quick – between one and four days. Those travelling outside the UK after 31 October and before they have been granted status would be well-advised to take with them some proof that they are already resident in the UK (ideally in line with the documentary evidence recommended by the Home Office when applying under the Scheme such as recent UK payslips, an employer letter or utility bill).

Penn Law Launch New Project on the Future of the Legal Profession

The University of Pennsylvania Law School’s new Future of the Profession Initiative aims to position students and alumni for the legal profession of the future, while also helping improve access to justice.

Can a law school, with the help of alumni attorneys and entrepreneurs, figure out how best to train the next generation of lawyers and improve the profession as a whole?

The University of Pennsylvania Law School is banking that it can. The Philadelphia school has launched what it calls the Future of the Profession Initiative, which aims to pursue innovations not only in how new lawyers are produced, but how law is practiced and who it helps. Unveiled Tuesday, the initiative is debuting with a slate of programs that include an executive education academy for alumni who are five years out of school, a podcast centered on the changing profession, an innovation competition and a symposium in February that will bring leaders from across the profession together to discuss the future of law.

“Change in the legal field is accelerating as technology evolves, new entrants join the industry, the practice of law becomes more globalized, regulatory frameworks governing lawyers shift, and attorneys approach their careers differently,” said Penn Law Dean Ted Ruger in an announcement of the initiative. “As a result, law school applicants, students and graduates are thinking in new ways about how they imagine their careers, underscoring the need for a solution that promotes innovation, thought leadership, and enhanced interdisciplinary education and engagement.”

Defining the mission and scope of the initiative is an ongoing challenge for its founders, which includes Jennifer Leonard, the law school’s chief innovation officer and the initiative’s executive director. That’s due in part to the fact that the initiative is a work in progress and its focus and programming will change over time. Some of its projects will prove successful, while some will fail—a reality that its leaders say they are comfortable with. But at its core, the initiative is intended to bring all of the law school’s innovation efforts under one umbrella, tap into the university’s larger innovation resources, and identify ways to help Penn Law students and alumni develop professionally throughout their entire career.

But the initiative has larger, profession-wide goals as well, namely improving access to justice through innovation. The focus isn’t solely on technology, which helps differentiate Penn’s program from some existing innovation centers at other law schools.

“This is designed to set us up for the next 50 years of the changes that we’ll see in the future,” Leonard said in an interview Monday. “That’s why we named it what we did: We want it to be broad enough to be nimble and adapt because certainly the changes we see today will be different from the changes we’ll see five, 10, and 15 years from now. This initiative will be structured in a way that allows us to adapt to those changing conditions.”

The initiative will kick off with a number of defined projects, which will be added to and subtracted from depending on their levels of success, Leonard said. Among them is the Five-Year-Out-Academy, in which Penn alumni who graduated five years ago can return to campus for a free week of executive education, including instruction on legal project management, negotiation skills, well-being for lawyers, law firm finance, cross-cultural competency, leading teams, strategic decision-making and client-centered design.

The school will also host a symposium in February with a broad range of legal thought leaders to discuss the future of the legal profession and create an upper-level interdisciplinary seminar course called “Innovation in Legal Services: Design Thinking to Optimize Client Service.” And the new Dean’s Innovation Competition will offer awards to entrants who identify new ways to deliver client services and close the access to justice gap.

The initiative and the first wave of projects were conceived with the help of an advisory board drawn from Penn Law alumni with a broad array of legal experience. They include Legal Services Corp. president Jim Sandman; Pro Bono Net’s Claudia Johnson; and Burford Capital managing director David Perla.

Perla said he wanted to be involved immediately, in part because the school’s reputation for fostering entrepreneurship for the greater good means the initiative already has many campus resources to draw upon. And the makeup of the advisory board ensures that many different perspectives are represented, he said.

“They picked people who did all sorts of different things with their degrees, most of whom no longer practice law,” he said. ““In some ways, we’re asking, ‘Can we make law better?’ And that’s really exciting to everyone.”

Legal aid as important for economy as hospitals and school

Increasing access to justice can be a ‘win-win’ for businesses, IBA-World Bank report claims

Improving legal aid services is as important for economic growth as providing functioning hospitals, schools and roads, the International Bar Association (IBA) and World Bank claim.

The jointly produced report, A Tool for Justice: A Cost Benefit Analysis of Legal Aid, looked at more than 50 cost and benefit studies of legal aid programmes and found that increased access to justice can be a “win-win” for businesses, the economy and society at large.

The report, launched this week at the IBA conference in Seoul, South Korea, argues that failing to provide adequate legal aid does not save money, but simply shifts the financial burden to other areas of government spending such as healthcare, housing, child protection and imprisonment.

For example, the report cites a study in Canada which estimated the costs of unequal access to justice on public spending in other areas (employment insurance, social assistance and healthcare) to be roughly 2.35 times more than the annual direct service expenditures on legal aid.

The latest comments from across Legal Cheek

“Unaddressed legal needs affect individuals, their families, the justice system, the economy and society as a whole,” commented Lucy Scott-Moncrieff, a member of the IBA Access to Justice and Legal Aid Committee. “As a profession we must continue to champion legal aid programmes and ensure that everyone has the opportunity to access justice.”

The report further claims that around 5.1 billion people — roughly two-thirds of the world’s population — lack “meaningful” access to justice, the result of which can lead to people becoming trapped in “vicious cycles of poverty, inequality and marginalisation”.

Georgia Harley, senior governance specialist at the World Bank, added: “Legal aid is undeniably good economics. Strengthening legal aid and related services increases access to justice and ensures that the rule of law is upheld. Most importantly, improving legal aid programmes saves government money and strengthens the economy in the long term.”

The report’s release follows the Labour Party’s pledge to provide free legal training for 200 lawyers specialising in areas such as benefits, debt, housing, employment and immigration.

By on

Unusual to hire “junior junior” barristers to help with big cases?

Rookie Richard Howell once worked for Dominic Cummings on the Vote Leave campaign

One of the lawyers defending Boris Johnson in last month’s landmark Supreme Court case on the prorogation of parliament was only just finishing off his barrister qualifications at the time.

Richard Howell, who officially joined Brick Court Chambers last month after completing pupillage, was part of the government’s legal team alongside Sir Eadie QC and two heavy-hitting juniors. He had previously played a key role in the successful Vote Leave campaign to leave the EU, working closely with Johnson’s top advisor Dominic Cummings.

Former government lawyer Carl Gardner said that instructing a newly qualified barrister in such a high profile case was “surprising” and raised questions for the Attorney General’s office.

But the Attorney General’s spokesperson said that it was not unusual to hire “junior junior” barristers to help with big cases.

Howell, who was called to the bar in 2018, is listed in both the High Court and Supreme Court judgments in the prorogation case as one of four government counsel. The others were Sir James Eadie QC, David Blundell and Christopher Knight.

Eadie is First Treasury Counsel and handles the government’s most complex and sensitive cases, while Blundell and Knight are both on the Attorney General’s panel of preferred lawyers for government work.

The government can instruct “junior juniors” to do low-grade work without needing to recruit from the preferred panel. The Attorney General’s office told Legal Cheek that there was nothing particularly unusual about retaining a junior junior, but confirmed that the Attorney General had personally signed off the legal team.

Although new to the bar, Howell (pictured below) boasts an impressive CV. He graduated from Oxford with a first in history in 2014, took a distinction in the GDL in 2015 and an outstanding BPTC grade in 2018. In between, he worked as a researcher for the Vote Leave campaign and was said by insiders to be the brains of its research operation.

Patrick O’Connor QC had told The Lawyer “on what I have been told, the process of this appointment to the Prime Minister’s counsel team, in such a sensitive case, is surprising, and calls for explanation”.

Gardner told Legal Cheek “I think people are right to be asking questions about this, and that the Attorney’s office should answer them”.

A spokesperson for the Attorney General’s Office said: “As with any case of this magnitude, the Attorney General agreed the composition of the counsel team for Miller v The Prime Minister. As a junior junior, Richard Howell was supervised by First Treasury Counsel Sir James Eadie QC and other more senior members of the counsel team, David Blundell and Chris Knight”.

The Brick Court website says that “before coming to the bar, Richard worked for a year in politics, providing policy advice and assistance to cabinet ministers, MPs and peers”.

This is a modest description of what many say was a key role in the Vote Leave campaign.

Howell is described in the book All Out War, a well-reviewed account of the EU referendum campaign, as a “whizzkid” researcher nicknamed “Ricardo” by Dominic Cummings and other Vote Leave figures.

According to the book, Howell drafted part of Vote Leave’s application to be designated as the official Leave campaign by the Electoral Commission. Howell reportedly spotted a glaring error in the application form the night before submission — which might otherwise have allowed the Nigel Farage-backed Leave.EU group to become the official face of Leave.

Last year, Dominic Cummings mentioned Howell on his blog as one of Vote Leave’s key figures.

Howell officially joined Brick Court in “September 2019”, and was reportedly still completing his pupillage when instructed in the prorogation case. His practising certificate dates from 23 September 2019, according to the barristers’ regulator — one day before the Supreme Court handed down its judgment.

Brick Court Chambers has been approached for comment.

Breach-of-Contract Lawsuit Against Global Payments

Global Payments Inc. may be on the hook for more than $135 million following a jury verdict in a breach-of-contract lawsuit filed by an independent sales organization against the Atlanta-based processor.

A jury in the Superior Court of DeKalb County in Georgia found that Global Payments breached parts of its merchant-service agreement with Frontline Processing Corp., a Bozeman, Mont.-based ISO. The jury on Sept. 23 awarded the ISO more than $24 million in direct damages and $109.8 million in consequential damages. It also awarded Frontline more than $1 million to cover its costs and attorney fees. Judge Linda W. Hunter signed the judgment Sept. 30.

Global Payments intends to appeal the decision. “We believe this case is completely without merit and will appeal it immediately,” says a statement from the processor to Digital Transactions News. “The outcome is inconsistent with the facts and well-settled law, and we fully expect to prevail on appeal. We will not stop until this gross miscarriage of justice is reversed.”

Frontline filed the suit in 2015 after Global Payments withheld funds to cover its legal costs in a lawsuit the Consumer Financial Protection Bureau brought against the processor and two ISOs, Frontline and Pathfinder Payment Solutions Inc., for allegedly providing payment services to malicious merchants. That case was dismissed in 2017.

Pathfinder was dismissed by the DeKalb County court as a plaintiff in 2018 when it could not provide an attorney to represent it, says Joe Gleason, Frontline co-counsel and partner at Atlanta-based Gleason Law LLC.

The dispute between Frontline and Global Payments actually preceded the CFPB action, Gleason tells Digital Transactions News. In 2013, Frontline and Global Payments were negotiating to extend their contract, but Global Payments wanted to add terms that Frontline was not willing to agree to, Gleason says.

In 2014, after shopping around, Frontline agreed to a similar deal with First Data Corp. and told Global Payments it would stay if it could match First Data’s pricing. “Global did not match the pricing,” Gleason says.

Under Frontline’s agreement with Global Payments, merchants that Frontline refers to the processor are portable. Global Payments would not allow that, Gleason says, making it one of the breach claims.

“Then the CFPB case comes along and becomes a convenient excuse to destroy Frontline by withholding Frontline’s funds, by withholding merchant-reserve funds, by locking Frontline out of Global’s computer systems,” Gleason says. That effectively cut Frontline out of the picture, he says, placing Global in direct dealings with the referred merchants, another breach allegation.

“In our view, the breach-of-contract cases did not start with the CFPB lawsuit,” Gleason says. “Instead, it was just one more step.”

Frontline contended that neither the merchant-services agreement nor referral agreement the ISOs had with Global Payments allowed the processor to “deduct as expense or withhold from compensation owed to Pathfinder or Frontline Global’s legal fees incurred in defending itself in the CFPB action.”

City lawyers need to embrace their inner entrepreneur

Ahead of tomorrow’s event, ‘Life on the frontline of the global economy’, White & Case counsel Catherine Andrews looks back on her career in capital markets

Despite fears that global economic growth is slowing, investment into emerging infrastructure markets remains buoyant. According to White & Case counsel Catherine Andrews, the demand for increased spending on roads, ports and energy facilities often follows a so-called “infrastructure funding gap”, where governments look to institutional investors to enable them to realise their extensive energy and infrastructure requirements. Bridging this funding gap, however, is costly and requires external advice and structuring, as Catherine explains:

“There’s only so much funding a government can give for an energy or infrastructure project. So, there’s always a need for private investment and financing — regardless of the state of the global economy.”

As a capital markets lawyer specialising in infrastructure, Catherine advises government entities and corporations on accessing the international capital markets to raise the required funds by way of a bond issuance (effectively a form of debt security). This type of transaction gives investors a steady return of interest and principal over a prescribed period of time, and provides government entities and corporations with a viable and cost effective way of funding large projects as an alternative or complementary source of funding to traditional bank loans. Catherine, along with her team, help prepare the underlying legal documentation, including a bond prospectus which “drills down into the detail” of the project and explains the transaction to investors.

In the past year, London-based Catherine has represented a number of high-profile oil and gas and infrastructure clients from the Middle East issue bonds worth billions of dollars. Africa’s capital markets, too, are seeing heightened activity. “Africa is a key area of focus for White & Case — huge infrastructure is on the agenda,” says Catherine, who’s currently advising a Nigerian oil and gas company on its debut capital markets issuance.

But this buoyant practice area remains “extremely sensitive” to shifting geopolitics and market confidence Catherine explains. “The difficulty is that when you’re having to access the markets at a time where there is underlying turbulence or uncertainty, a number of uncontrollable external factors can have an immediate negative impact on market conditions on any given day. This means that ultimately, issuers can be forced to agree to a higher rate of interest on the bonds to be issued in order to successfully close a deal with investors, or risk waiting for market conditions to improve before closing that can cause an unlimited amount of delay.”

Amid ongoing US-China trade tensions, and an increasing use of economic sanctions by governments worldwide, capital markets lawyers must remain aware of what is going on in the world and where the introduction or expansion of sanctions legislation could impact a transaction. “Sanctions were hardly mentioned when I qualified but are now a big part of every transaction we do,” says Catherine, who studied modern history at the University of Oxford.

Being proactive in advising clients aligns with the entrepreneurial mindset typical of lawyers at leading US law firms, such as White & Case. Catherine explains: “It’s about being able to pre-empt challenges and offer advice before market developments hit news headlines, so you can immediately ring up your client and say, ‘I don’t know if you’ve seen this, but it may impact you. Would you like me to prepare some advice for you on this?’”

This readiness to act stems in part from Catherine’s experience of the 2008 financial crash. “I qualified in September 2008 — Lehman Brothers collapsed two months later. The international credit markets were effectively frozen. For us lawyers, it was an extremely difficult time,” recalls Catherine.

The crash signalled an end to the economic boom and the seemingly endless supply of work for City lawyers. “When I entered law, I saw it as a job for life. You could go in, train at a big firm and then you’re set up with a ‘guaranteed’ job. But the economic crisis was a big wake up call to everybody. Work is not guaranteed; you can’t take it for granted.”

Fortunately, Catherine qualified at a magic circle law firm in Dubai, whose economy remained relatively robust during the crisis. “In the fall-out from Lehman, the Middle East, which was traditionally seen as a risky commercial environment, was now regarded as a safe haven for bond investors, and was somewhat shielded from the financial crisis. So, while my colleagues were twiddling their thumbs back in London, I was extremely busy and cutting my teeth on some really interesting and novel deals,” she tells us.

In 2012 Catherine joined White & Case’s Abu Dhabi office, which offered greater opportunities to specialise in government-led project financing. Three years later, she transferred to the firm’s London office.

Despite the long hours and the challenge of overseeing several deals at once, Catherine enjoys the “thrill” of building new client relationships. “When you represent a client on a bond transaction, you have the ability to become their trusted legal advisor. Walking them through the steps of issuing a bond also means you get a real insight into their business, which offers up plenty of opportunities to cross-sell other legal services to them.”

So, what does it take to make it at a big US law firm? Well, according to Catherine, it’s showing that you’re a team player:

“It doesn’t matter how much you know about a practice area; always remember that you are a vital part of a team. Regardless how mundane the work you are set, a whole team of partners and associates deeply rely on you carrying out those tasks extremely well. We can teach you how documents can be drafted, but what we can’t teach is good work ethic.”

Demonstrating such diligence from the get-go is vital. “Trainees should view each seat on a training contract as a six month job interview. By the end of your seat, you should be regarded as someone that’s indispensable in the team and ultimately a safe pair of hands who can be relied on to execute at the highest level,” Catherine advises.

Catherine Andrews will be speaking alongside other White & Case lawyers at ‘Life on the frontline of the global economy’ tomorrow, Wednesday 2 October, at the firm’s London office. This event is now fully booked, however you can still apply for the waiting list.

Changes to family law must come from practitioners, not politicians

Lawyers can sit around waiting for parliament to make its recommendations and legislative updates, but it is more important for family lawyers to change the culture around divorce and related disputes.

Practitioners across the spectrum have been quick to criticise the newly announced parliamentary inquiry into the family law system, but change has to come from within the profession and those who deal with clients going through separation and divorce, argues one divorce coach and mediator.

Why mediation is needed

In conversation with Lawyers Weekly, Anne-Marie Cade, who is the founder of mediation coaching firm Divorce Right, said that one of the biggest issues is that there are many cases caught up in the court system that should not be there to begin with.

Most lawyers you speak to will tell you, she noted, that around 85 per cent of cases settle before going to trial.

“Most of those cases need not have been filed to begin with if clients were educated on their options at the preliminary stages of their matter and a different approach was adopted by the lawyers. There needs to be a bigger focus on early intervention strategies,” she posited.

“Processes like mediation are very effective if done early in the process. Clients need to be educated on the process of mediation and coached and prepared, so they are in the correct mindset before they attend mediation.”

However, this does not happen, Ms Cade said.

“In most cases, they are referred on to mediation at the early stages with little or no guidance and most mediations then fail as the parties go in ill-prepared. Papers then get filed in court and mediation is used in the later stages of the process as a last-ditch effort after all the nasty allegations have been made and the matter has become so acrimonious that parties are entrenched in their positions,” she said.

“An evaluative form of mediation is then used wherein they are forced into an agreement to avoid going off to court. Most often neither party is happy with the agreement and it is a recipe for disaster because they come out of the system with no skills on how to manage their co-parenting relationship which only leads to more conflict which in turn damages the kids.”

The onus is on the profession to act

“We can all sit around waiting for the politicians to make changes. None of the changes made will be ideal,” she continued.

“We are all quick to criticise but I think change has to come from within the legal profession as well as from other professionals who deal with clients going through separation and divorce. We need to change the culture around divorce and how it is done.”

Legal professionals in family law need a better understanding of conflict, how it can be resolved and better client management, Ms Cade surmised.

“There is no single method. It is necessary to create enduring solutions to conflicts, not just adopt a bandaid approach. It is necessary to think in non-traditional ways about possible solutions,” she explained.

“This involves an understanding of human behaviour and neuroscience, it involves shifting mindsets of both lawyers and clients and for this to be effective some of these changes have to come from within the legal profession.”

There is a social urgency, she espoused, to incorporate and develop transformative peacemaking practices into the work lawyers do in the family law space.

“We also need to work on ourselves as lawyers, so we see things differently. We can’t be that effective adviser beyond our own level of personal development,” she said.

“We are helping people who are embroiled in conflict and as lawyers we need a certain awareness of our own biases and engage in skill building, so we are equipped with the tools to deal with these issues so we can help our clients better.

“We can then integrate these learnings into how we deal with our clients. It may involve simple interventions at the very early stages. It’s important that we incorporate 21st century learnings into our work. Everything about the Australian family is changing but the way we approach divorce is still hopelessly outdated.”

Better understanding trauma

The trauma of divorce is not understood well enough, monitored or managed, Ms Cade added.

“There is a plethora of new service offerings available now to help clients manage even the toughest issues and make them more bearable and workable so they can reach resolution with minimal conflict,” she reflected.

“It’s necessary to embrace these new and different approaches to lead to better outcomes for our clients. Clients may be resistant to spending their money at the initial stages of the process to get this kind of help so it’s incumbent on lawyers to educate clients about the benefits of adopting these approaches so clients get the help they need and are able to sort their issues out in an amicable and peaceful manner instead of having to resort to litigation.”

It’s necessary for lawyers to look for big picture solutions and be peacemaking problem solvers, she concluded.

“Clients expect a gladiator approach when they see a lawyer so it’s up to us to show our clients that there are more constructive ways in which to resolve their matters. There is a collective responsibility on us as legal professionals to lead the change and make the difference.

“If we adopt this approach it will help clear the decks for the more complex cases that do belong in the court system and hopefully those cases will get resolved in a timelier manner.”

Common Legal Finance Questions & Answers

The research is clear: The decision to use legal finance is most often one that law firms and clients make collaboratively. This, however, requires that law firms know how to answer questions about the tool. It is in that spirit that we’ve put together a brief guide to address these questions.

#1. How does legal finance work alongside existing client-lawyer relationships?

  • Client confidentiality and privilege: Burford enters strict confidentiality agreements with clients, and a strong body of law has developed that protects communications between legal finance providers, lawyers and clients as attorney work product.
  • Control of the litigation and settlement: Burford is a passive investor and does not control litigation strategy or settlement. Our transaction documents explicitly state that we do not control and we do not seek to exert indirect control by negotiating a right to abandon our investment commitment.
  • Transaction structure: Legal finance can be provided either to a client (the commercial litigant) or to a law firm.

#2. Why should companies use legal finance—even if they have plenty of liquidity?

Legal finance means companies need not leave money on the table

Clients often fail to pursue recoveries due to cost concerns. Legal finance means clients need not leave money on the table: The finance provider assumes the cost and downside risk of pursuing claims, so that clients can maximize recoveries without risking the company’s capital.

Legal finance helps clients manage legal cost and risk with certainty

Even if clients have ample budget for pursuing recoveries, they may choose not to do so, given the uncertainty inherent in litigation and arbitration. Legal finance removes that unpredictability: It allows legal departments to reduce or cap legal spend and better control the timing of spend even though it’s nearly impossible to control the timing of the underlying litigation.

Clients are monetizing legal assets

Clients can also choose to monetize outstanding matters on a non-recourse basis in order to realize the cash from an anticipated recovery on an accelerated timetable, rather than trying to predict the timing and outcome of the litigation. Monetization allows companies to use the value of a litigation asset to unlock third-party capital that can be put to work by the company for a broad business purpose.

Companies can use legal finance to drive innovation across the legal department

Clients can use legal finance on a portfolio basis to offset the cost of defense-side litigation by bundling plaintiff and defense matters together, using the value of affirmative claims to finance to cost of litigating claims across the portfolio. Litigation often represents the largest portion of legal departments’ expense lines, so the potential to drive innovation is significant.

#3. Why does finding the right legal finance provider matter?

Given the high stakes and potentially years-long duration of commercial disputes, clients need to know that choosing the right legal finance provider is about much more than discussing the economic terms—and law firms should be extremely careful about assessing all factors when recommending a finance provider. Specific factors to consider include:

  • Proof that the finance provider can meet the client’s financial needs: Because capital is often invested over time, clients must undertake financial due diligence on the funder to ensure it will have capital available when needed to meet its investment commitments— and that the fund’s structure will not drive a funder to seek an early exit from an investment to meet investor demands.
  • Portfolio size and diversification: The size and diversification of the finance provider’s other investments should be considered. A small portfolio with only a handful of investments or over-concentration of capital in any one area makes the finance provider an inherently riskier partner.
  • Ability to conduct investment diligence in-house: Law firms and clients should be cautious about finance providers that outsource their diligence process. First, outside lawyers looking at matters on a one-off basis cannot match the expertise of lawyers who review litigations for investment every day. Second, outside counsel review slows down the diligence process—and exposes clients’ matters to potential law firm competitors.
  • Value-add: Although Burford is a passive investor, we provide feedback on investment throughout the underwriting process and as we monitor the matters in our investment portfolio. Some finance providers treat this as merely perfunctory and transactional. Burford’s team offers a value-add that many of our clients and law firms actively seek.

To learn more about Burford Capital, please contact:

Christine Azar