London litigation has important lessons to learn

Ben Rigby discusses the key takeaways from Portland's 2023 litigation report
Outside The Rolls Building in London

UK claimants using the Commercial Courts have fallen again as Russian claims surge Shutterstock

The headline findings from Portland’s latest litigation report shows that Russian claims are at their highest on record (as my recent article highlighted), with Russian litigants climbing to 59, up from 49 in last year’s report.

Many of these were oligarch claims, such as those from the Mints family and Igor Antoshin; others were well-known antagonists such as Vladimir Chernukhin and Oleg Deripaska, no strangers to the Commercial Court.

Many corporate claims such as VTB Capital v Mozambique (the ‘tuna bonds’ litigation) are currently stayed due to sanctions and VTB’s subsequent administration, alongside other cases such as the currently adjourned Antipinsky and Maroil litigations, which remain to be resolved by the Commercial Court.

Others are headed for the Court of Appeal, like the National Bank Trust litigation against the Mints family, which is being sued by a body essentially owned by the Central Bank of Russia. Appellate guidance, as the report noted, may then be forthcoming.

The Portland report may represent a temporary glut of Russian claims, given many US and UK firms withdrew from such claims last year, owing to sanctions, and subsequent delays due to licensing for representation from independent firms like PCB Byrne, Quillon Law and Rosenblatt, among others.

That may be why the Master of the Rolls, speaking to Lincoln’s Inn recently, said sanctions “have had a dramatic effect on the Russian oligarchs that used to litigate so intensively in London.” Time will tell.

While some oligarch cases will end – with the latest round of the long-running Chernukhin v Deripaska litigation being resolved in the defendant’s favour in April – Russian-related claims, such as the mammoth AerCap aviation insurance dispute, in which Russia provides the backdrop, are very far from over.  

The need to resolve cases on the Commercial Court dockets, alluded to by Mr Justice Foxton in the court’s annual report, may see a Russian hangover for some time. That will create opportunities for those law firms willing to act – but who can expect to face greater scrutiny, as can commercial barristers, to whom scrutiny is unwelcome.

Having endured a fierce debate on the cab-rank rule’s application in environmental cases, provoked by a speech at Temple Church in April, Bar Council chair Nick Vineall KC’s recent restatement of the rule (following what he called ‘media misreporting’) will only heighten scrutiny of the Bar’s most fundamental professional principle.

It is a debate Vineall, who spoke about the cab-rank rule and Russia in 2022, appears unwilling to shy away from – although notably, neither the Law Society or the SRA has sought similar strictures, as Kingsley Napley’s Julie Norris and Imogen Roberts noted in a recent blog post.  

The report also found no Ukrainian litigants have appeared at first instance in the Commercial Court since July 2021. Appeals such as the Law Debenture litigation – the latest round of which was won by Ukraine in the Supreme Court in March – suggest Ukrainian litigants may feature in future years if the case returns to the High Court, with appellate proceedings having predominated this year, such as the Quadra Communities appeal (over Ukrainian grain fraud) having been handed down in April.

One finding that should concern both Vineall, a commercial silk, and his opposite number Lubna Shuja, is the drop in UK claimants using the Commercial Courts. Judgments between lead UK litigants appearing as the first defendant or claimant decreased by 6%, the second year in a row where cases between UK litigants have decreased.

In welcoming the report, both will be wary of accusations of bolstering a two-tier justice system, despite both having campaigned for greater funding and access to justice in the civil courts.

The image of one system for domestic consumers and small business that is beset by delays and crumbling infrastructure and struggling to recruit judges, and another for wealthy international clients, is not one which will appeal ahead of this year’s London International Disputes Week.

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