Commercial lawyers and the complexity of commercial law in UK.

Almost half of the total UK population is in receipt of one or more welfare benefits, giving rise to the largest single area of government expenditure. The law and structures of social security are highly complex, made more so by constant adjustments as government pursues its often conflicting economic, political and social policy objectives. This complexity is highly problematic.

It causes errors in decision-making and to augmented administrative costs and is seen as disempowering for citizens, thereby weakening enjoyment of a key social right. Current and previous administrations have committed to simplifying the benefits system. It is a specific objective of the Welfare Reform Act 2012, which provides for the introduction of Universal Credit in place of diverse benefits. However, it is unclear whether the reformed system will be either less complex legally or more accessible for citizens.

There are many commercial lawyers in London who strive to tame the complexity associated with UK commercial law.

The leading commercial law firms in the City of London are referred to as some of the best legal practices in the world, and are some of the most expensive providers of legal services. However, they are also some of the least transparent, specifically in terms of pricing: while they do publish yearly statistics on the performance of their firm, from turnover to profit per partners, they do not publish information on the hourly rates charged to their clients.

In the context of jurisdiction clauses, the recent English decision in Wright v Lewis Silkin [2016] EWCA Civ 1308 is also particularly instructive. In that case, Mr Wright’s solicitors failed to include a jurisdiction clause in a contract with an Indian employer. When a dispute ensued, jurisdiction was contested and by the time it had been resolved and judgment rendered, the counterparties appeared to be insolvent. Mr Wright then sought to sue his solicitors. In the High Court, the solicitors’ firm was held liable for the costs of various motions contesting jurisdiction and also for the loss of chance of recovery of damages due to the consequent delay in obtaining a judgment. On appeal, the first instance finding in respect of loss of chance was reversed on remoteness grounds but the liability for the costs of the jurisdictional challenges was upheld.

So it is clear that one of the commercial lawyers in London can be held liable for not drawing a known risk to a client’s attention and it is also clear that such a risk can relate to a failure to properly advise regarding jurisdiction clauses in contracts.

Absent a political solution, what are the potential enforcement options? It is reasonably clear that the Brussels Recast Regulation will not apply once the United Kingdom leaves the European Union. There is a state able argument that the Brussels Convention, which has not been formally abrogated and is an international instrument independent of the EU, could then be used to enforce UK judgments in some of the remaining Member States (but not all because not all of the current Member States are parties to the Brussels Convention).