Litigation will rebound, new LSLA president predicts

Bushell: Remote hearings working

The lockdown has led to a short-term lull in litigation, but an increase is likely later this year or next year, the new president of the London Solicitors Litigation Association (LSLA) has predicted.

Chris Bushell, partner at Herbert Smith Freehills, said the crisis had also shown that many court hearings could be handled by video link, saving money and reducing the need for environmentally damaging air travel.

Mr Bushell said people trying to gauge the impact of the coronavirus pandemic “inevitably looked back” to the financial crisis.

He said the collapse of Lehman Brothers in September 2008 led to a “flurry” of advisory activity with clients.

“We are seeing a similar thing this time. A lot of people are ringing about clauses in contracts, and whether they can extricate themselves.

“Not much Covid-19 litigation has started yet – most of it is at the advisory stage. People are expecting an uptick in litigation later in the year or next year.

“That is what happened in the financial crisis. Things did not really get started until 2009.”

Mr Bushell said the lockdown had shown that many court proceedings, particularly procedural hearings, could be handled by video link.

“It will be interesting to see to what extent we embrace technology the other side of the lockdown. It has not really happened in previous years.

“Pre-trial reviews strike me as the kind of hearing that could be done by video link, which saves money and is more efficient.”

Mr Bushell said there was also benefits in terms of climate change if clients and lawyers no longer needed to fly to court hearings.

He said the courts deserved “quite a lot of credit” for how, inspired by the Lord Chief Justice and a series of practice directions, they had “kept things moving” in the lockdown.

Mr Bushell said he had recently been involved in a two-day multi-jurisdictional arbitration of a banking dispute, handled by video conference.

A total of 18 people were involved, in England and Russia, and a number of witnesses were examined.

Mr Bushell said the technology, supplied by BlueJeans video conferencing, worked well, and everyone could see and hear each other when they needed to.

He said he had a High Court hearing coming up later this month, again involving banking, which would be dealt with by video link.

Mr Bushell said the hearing had been adjourned from last year, and involved parties in the US, UK and Hong Kong, with three sets of law firms and counsel.

“It is not an injunction or urgent business, so it is the kind of thing that might have been bumped.”

Instead a protocol was agreed between the parties in a few days, which the court adjusted and accepted.

Mr Bushell said some lawyers had been “opportunistic” and tried to use the lockdown to adjourn cases, particularly where there were live witnesses, arguing that remote hearings were not the same and there was a lack of safeguards, for example preventing witnesses from looking at their phones off-screen.

“I don’t think that is right. We have to be more cautious about video hearings, but the technology exists, so we need to be pragmatic and keep things moving.

“The number of significant matters that are put off because of the coronavirus should be in the minority.”

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