A response to Nick Cohen: Legal highs and lows
Nick Cohen may be right on a lot of things, but the English legal industry is not one of them. It's a sector we should have pride in
In a recent edition, The Spectator ran an article by Nick Cohen on the English legal industry. It is an apparent rehash of a Guardian piece he ran in September. The comments under both are well worth reading for their criticisms of many of his contentions within.
Emblazoned on The Speccie’s front cover was a robed and gowned counsel, clinging to St Stephen’s Tower (aka Big Ben) like King Kong, under the headline, ‘Lawyers gone wild. Public service is being sacrificed in the pursuit of oligarchs’ billions’. The gist of Cohen’s article was that, by focusing on dispute resolution for wealthy Russians and their companies who come to London to litigate their grievances, the British public interest is suffering.
Cohen accuses the legal system of “focusing on the world’s most lucrative disputes” to the detriment of British citizens: “its best lawyers no longer want to work for them, because they cannot afford the fees. Its judges cannot hear their disputes for months because they are tied up hearing the disputes of oligarchs.”
There are lots of ripostes to Cohen’s points: because commercial litigation is a demand-driven service that the state provides according to need, all the Ministry for Justice has to do is increase the numbers of judges -- there are plenty of court buildings -- and scale court fees to the value and complexity of the litigation and the means of the parties, for instance. Although justice is means-blind as far as possible, amidst debates about litigation funding of the parties, it has been suggested that richer claimants subsidise courts' costs whether or not they win.
Cohen is wrong to slate the costs parties pay to the courts for the privilege of using them. Because of the adversarial nature of law in this country, both parties are usually trying to strike out or otherwise dismiss their opponents’ cases from the beginning. We have a system whereby the winner has their legal costs paid by the loser, but the amount paid is rarely the full amount the victor has in fact expended.
Law firms are not charities and have to pass no ‘public benefit’ test; unlike Starbucks and Jimmy Carr, as partnerships they pay their fair share of taxation. Yet the pro bono units of most law firms supply good advice to charities and community organisations, and through law clinics to the general public. Pro bono is a strong cultural aspect of the legal profession, sending judicial trainers to Africa, for instance, and hardened criminal hacks to defend, for free, those on death row in the Caribbean.
And there are plenty of other benefits of the legal industry: the ancillary services like expert witness consultants and forensic accounting, head-hunters and recruiters, translators, support for company secretaries, legal researchers and paralegals. Most law firms sponsor university departments and chairs in law, building up a culture of good research and development that keeps English law abreast of social and technological change. And law firms, being power and transport-hungry enterprises, push for improved infrastructure that benefits everyone.
None of this was mentioned by Cohen. He seizes instead on the fortunes (and fortune) of Jonathan Sumption. Sumption was formerly a top-rated Queen’s Counsel who specialised in heavyweight commercial litigation -- meaning complex and valuable banking and finance, industrial and shipping disputes – and who now sits, ennobled, on our highest court, the Supreme Court of the United Kingdom.
There was some fuss when he was elevated; normally judges rise up through the High Court and Court of Appeal before being appointed to the Supreme bench. Sumption, in effect, jumped from being a part-timer on the first rung, directly to the top of the judicial ladder. This caused a lot of resentment and anger in the legal industry, and Cohen is wrong to use Sumption as an emblem of any trend or faction. He is an outlier: incredibly few lawyers command the hourly rates, brief fees, and ‘refreshers’ that Sumption and a select few have garnered for the oligarch cases.
Cohen’s ire is directed at the private wealth lawyers have made by acting for foreigners who chose London as their preferred place for slugging it out. He aims at a narrow target when attacking the form of dispute resolution that Messers Berezovsky and Abramovich were involved in: civil litigation. Litigation refers to fighting in court, using solicitors and counsel before a judge. It is the most formal form of dispute resolution, relatively inflexible as the court’s procedural powers are established by the civil procedure rules (CPR), but with the might of the British state to compel procedural and substantive decisions and drive the process along.
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