The future eminence of our legal sector rests on more than Brexit
Ever since the referendum, we have seen dire warnings that London risks losing its place as a global business hub.
We have read countless stories of other European cities pitching for our international financial services sector, and there are now concerns that the continental courts are gearing up for an assault on its preeminent status for global commercial litigation too.
These were stoked in January when the European Commission circulated a notice warning of the impact of Brexit on cross-border disputes – implying that litigation could move away from the UK.
Other jurisdictions have already taken steps by setting up and promoting English-speaking international commercial courts. The day after Article 50 was invoked, the minister of justice in Hesse, Germany announced an initiative encouraging Frankfurt to become the hub for EU litigation.
Amsterdam, Brussels, Dublin and Paris have also established or are establishing English-language courts to hear commercial disputes.
So could London be overtaken by one of the EU27?
The short answer is no, or rather not yet. There is a long way to go for our European neighbours to close the gap.
Figures show London commercial courts becoming ever stronger. Last year, there were 258 cases heard – up 63 per cent from 2017 – and of over 1,000 litigants, the majority were from Europe.
The number of EU litigants in UK courts has actually doubled since the referendum, and the preeminence of English law in cross-border contracts and the regard in which the UK judiciary is held are key to this competitive advantage.
So while other European courts would love to steal London’s crown, there are no signs of this ambition being realised at present.
Of course, a critical component in how attractive our courts are to foreign litigants is the reciprocal enforcement of judgments in the EU. And the future of that is a major uncertainty thanks to Brexit.
But the sector should be careful not to let Brexit distract from the other ways that the landscape is changing.
Critically, the nature of disputes is evolving at breakneck pace. Cases already involve handling huge amounts of data, and this is only set to increase.
This means that courts and law firms need both technology capable of processing huge amounts of data, and the right procedures and practices to ensure that this is done efficiently and effectively. It will also demand suitably skilled people.
European courts enviously eyeing London’s status could invest heavily in making themselves a viable alternative. UK law firms are already leading the way in investing in artificial intelligence and other technology, but new, innovative solutions will be required to ensure that the litigation process can control the data, and not the other way round.
Then there is the issue of how litigation is now funded. The boom in litigation finance has been game-changing, both offering access to justice for those who might otherwise not afford it, and offering larger companies the ability to pursue litigation while keeping the risk off the balance sheet.
It is precisely these innovations that will enable London to remain the preeminent international commercial court.
But there are balances to be struck. Defendants must continue to be protected from unmeritorious claims, nuisance litigation, and irrecoverable costs as the growing body of law in this area develops. There must be due scrutiny on the influence of funders, with proper support for those setting high standards and redress against those who don’t.
It is vital to get this balance right in order to maintain London’s position in this market.
Brexit presents serious challenges, but London’s prestige is, for the moment, affirmed. However, the status of London’s courts has been built on its reputation for quality, fairness and justice. Maintaining it will mean looking to the future, not the past.