London learns to play by the law of the West: John Willcock and Roger Trapp report on the City's mania for litigation from which even the big law firms cannot escape

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The Independent Online
A FUNDAMENTAL shift is occurring in the way the City does its business, away from the traditional gentleman's agreement and towards the American defensive system dominated by lawyers.

Behind this change is the huge rise in litigation against professional advisers in the City. This, in turn, has been caused by the recession, which has produced unprecedented numbers of company collapses. The more money that has been lost, the keener investors have proved to find somebody else to bear the cost.

This means that the old City way of making deals over a lunch or phone call is now in danger of being replaced by the American system which has made deal-making in the US such an expensive and risky business.

Increasingly, every step in a deal has to be attended and supervised by teams of highly paid lawyers.

Attitudes to risk-taking are also changing. Gone are the days when an investor in a bust company would write off the loss as bad luck. Now everything is somebody's fault.

When people look around for somebody to sue, they obviously prefer somebody with money. This means that professional advisers with professional indemnity insurance have been first in the firing line in the wave of recession-related litigation.

This has sent professional indemnity rates soaring, so that law and accountancy firms in the City are having problems affording adequate cover.

Some firms may even go bust because of this, according to Graham Ward, chairman of the Institute of Chartered Accountants' steering group on professional liability.

The scale of litigation is illustrated by the BCCI saga. The liquidators of BCCI, accountants Touche Ross, are suing fellow accountants Price Waterhouse and Ernst & Young for dollars 8bn, over the audit of the bank in the year 1986/87. Further writs may be served for subsequent years.

The property slump, the biggest since the 1970s, has been one of the biggest generators of litigation. Surveyors are frequent targets as valuations have fallen so drastically since the boom years of the 1980s.

Solicitors have also been sued for failing to gain proper legal title for properties companies have bought, or for failing to carry out searches correctly.

One particularly complicated property claim has been launched by Banque Bruxelles Lambert against Simmons & Simmons, the City lawyers, for pounds 50m.

Alleged bad advice on takeovers has also produced a large number of actions. Yeoman, the Irish leasing company, recently claimed pounds 115m from SG Warburg and Linklaters & Paines over advice it received on a takeover that went sour. Warburg agreed to settle out of court for pounds 35m, while Linklaters ended up paying nothing.

This illustrates a tendency among plaintiffs to sue as many people in the advisory team as possible in case one party tries to shift the blame to another.

The latest twist is advisers who are now prepared to sue each other. BZW recently launched a writ against Clifford Chance, the City's biggest law firm, over advice it gave to British & Commonwealth's banking syndicate in 1987.

Legal action is also getting nastier. Lawyers act in a more aggressive way than even five years ago.

Alan Langleben, a partner in Brecher & Co, the London solicitors, explains: 'Solicitors defending very big claims are under pressure to delay, be unco-operative, until they are absolutely forced to the courtroom door.'

In some cases this might be the result of pressure from insurance companies who are under cash-flow pressures and want to spread out their payments against professional indemnity claims.

'Plaintiffs are inspired by our US cousins,' says Mr Langleben. 'Many are taking cases against professional counterparts that they wouldn't have done a few years ago. The atmosphere has changed.'

As long as the defendant has professional indemnity cover, the plaintiff knows he will get paid if he wins, says Mr Langleben. 'It's the best kind of litigation to have.'

But just as the worst excesses have travelled across the Atlantic, so too could the solution.

The US accountancy profession, battered by a succession of multi- million-dollar claims, has taken a lead in fighting back against what it sees as an injustice and abuse of the judicial system.

Figures are not available in the UK, but in the US payouts by the Big Six are heading for dollars 1bn a year. Net litigation costs take up more than a tenth of auditing and accounting revenue, they say.

In the US the lobbying effort is part of a wider campaign being waged under the umbrella of the Coalition to Eliminate Abusive Securities Suits.

The coalition, which describes itself as 'a broad-based group of corporations, firms and associations', is backing a package of reforms. These include amending the principle of joint and several liability, requiring unsuccessful litigants to pay lawyers' costs to discourage litigation, and curbing abusive litigation practices so as to bar lawyers from paying stockbrokers to refer plaintiffs.

They would also establish a 'clear and convincing' standard of proof for allegations of fraud to discourage suits based on statements that turned out to be inaccurate but were not meant to be misleading.

In the UK, the Institute of Chartered Accountants in England and Wales has formed a steering group on professional liability, which will present a draft paper to the organisation's council next month. The group, which is working in parallel with the big eight firms, is calling for broadly the same reforms.

But as such moves have so far received little more than sympathy, there is a growing reluctance among auditors to embrace the reforms contained in the Cadbury Report and other documents published in response to the spate of collapses that followed the end of the 1980s boom.

In particular, they suggest they will be unwilling to comment on internal controls and whether a company is a 'going concern' without some form of protection from unlimited liability.

In the meantime, the professional indemnity market continues to deteriorate. 'It is increasingly difficult to get cover at all, and the amount of deductibles is shooting up,' says Mr Ward.

Firms are therefore resorting to self-insurance. But with the insurance market believing that the position is untenable, this is not a long- term solution.

Without the reforms being proposed, there is a real danger of firms collapsing like their clients, says Mr Ward. 'If a firm goes bust, there is a reduction in competition, which is not in the public interest.'

In addition, there is the danger of creating a vicious circle. The risk of firms collapsing is likely to put off recruits with the result that firms will select staff who are not top-rate - and, accordingly, risk not being able to do work of the highest quality.

(Photograph omitted)

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