SJ Interview: Chris Benson
Chris Benson is managing partner of Leigh Day. He talks to Solicitors Journal about building the firm, negative stories in the press and the firm's collective action against UK water companies.
Tell us about yourself and your role at Leigh Day.
I've been managing partner for two years. My predecessor, Frances Swaine, was managing partner for about 12 years. When she became managing partner, the firm had about 100 people and when she left, it was probably about 250. She formalised it, created the management board, set up the separate departments and the head of each department.
For me, it felt a bit like taking over at Manchester United after Alex Ferguson retired. It was in such good shape. We’d been growing organically at about 10 per cent per year. When I was submitting my manifesto to become managing partner, I remember thinking: keep going at that rate and in two four-year terms we’ll be approaching 500 people, which will be quite big.
And then, just as Fran was stopping and I was starting, the pandemic happened. I was hoping that when I took over, we'd be in our new offices, but everyone was still working at home and the new office wasn't built.
It was quite tricky. Just before the pandemic, we’d settled quite a lot of international cases and, as Martin [Day – the firm’s founder] said to me as I was taking over and the pandemic was hitting, the cupboard was bare. There was a real worry about what we were going to do. We can’t travel. NGOs are in lockdown. We won’t be aware of any new cases out there. We won't be able to sign up clients.
But we’d been doing some work at the time on Volkswagen emissions. We got into that partly because of product liability, but also because of the environmental work we do. And so we said, let's investigate that while lockdown is happening. We've got nine partners in the International Department that can't travel and all our cases are settled. So each partner in that department took on one of those cases: BMW, Mercedes, Volkswagen, Volvo, Nissan and so on.
Those cases exploded. Because we funded VW ourselves, funders came into the market. We had two or three thousand original VW clients. Each of the cases now, I suspect, has 50,000 clients. And then as soon as we came out of lockdown the world revitalised, and the international cases picked up as well. So we've got a whole new stream of UK-based group claims and we've got increasing international claims as well – for example, in Thailand against Dyson for modern slavery and claims about the behaviour of the English army and its Kenyan training camps.
Generally, each of the five departments had about 80 people. But now International and Group Claims between them have 350 people, so they've doubled in size. All the other departments have grown as well. And just last Monday we touched 800 people.
Leigh Day is quite unlike most law firms in many ways. How does that uniqueness affect the way that you run the business and take on cases?
I think there's a recognition from the partners that, to fund growth, some cases need doing because they need doing, even though they won't necessarily be profitable or even attract good publicity. Coupled with that is an acceptance that if you're going to take a purposive approach to the law, sometimes the cases that you take will not look easy. It's not necessarily boundary-pushing for the sake of it, but it’s asking, ‘will the law apply to this particular situation?’ Or ‘could it work in this way to get justice for this group of people?’
That gives the lawyers a feeling of flexibility in the cases they do – that it's not all about money. Nobody is asking what the return will be, or how it’s going to work financially. We do have a risk assessment committee so that if you’re going to do a big piece of litigation, and you're not going to get funding for it, and you're possibly not going to get paid unless you win, then we at least have an idea.
We rarely say no to a case, but if we do say yes, we always expect the same level of care and attention to be given to a case. If it needs to be done, we've got to do a proper job. Because it's so easy to lose your reputation. That's probably one of my biggest worries as a managing partner. We’re band one in every area we do and to maintain that requires a lot of effort. You can't cut corners anywhere because it's so easy to drop down. What I expect and hope is that if a defendant gets a Leigh Day case, they know it will be well prepared, well researched. It should be a strong case if it comes in front of a judge, and they will think: ‘oh, this is a Leigh Day case. It will be well-prepared and the law will be accurate. It will be well resourced.’
In terms of how that works internally: whatever department you're in and whatever case you work on, staff get paid the same. It's all as valuable to us. The law that we do is worthwhile doing and so we value the staff to do it. Our staff hold us to account as well. They say that when it comes to Leigh Day, you do these good cases, you only act for people, you fight for social justice. They wouldn't let us be a poor employer.
What is the biggest single challenge facing the firm at the moment? And what are you doing to overcome that?
The challenge is being a claimant-only law firm. When you think back to the early 2000s, before the Tory government came in and before George Osborne was clamping down on public finances, there were quite a few claimant law firms and a thriving legal aid community. But now there's the pressure, perhaps from the Conservative government, that if people need lawyers, it's to buy a house, to get married, or when they die, or when they get divorced. That's all the legal services you need. You don't need legal services to do all these other claims, because they're probably a pain for business and a pain for government.
Trying to carve out a place where you can just advise claimants, and do it profitably, is probably the challenge. The decrease in claimant law firms, I think, is a recognition of that. Generally, it feels as a claimant firm that the number of our fellow travellers is decreasing.
Does that not benefit Leigh Day, because of the reduced competition?
No, because it's the squeeze on being able to do the work. There’s space in the world for Leigh Day, Hodge Jones & Allen, DPG, and all the others. But my worry is that they're getting squeezed – and not due to competition. It’s the financial climate and the pressure on costs will determine difficulties with insurance. Certainly, looking at personal injury and clinical negligence, where there's fixed costs coming in, some of the cases won’t be covered. You could be quite seriously injured, but with the costs that will be allocated to a lawyer to do your claim, it's going to be really tricky to ensure that the injured person can be properly compensated for what may not be their fault.
That's the challenge. How do you represent the people you want to represent as costs get squeezed? The view is that the claimant market should not be as expansive as it currently is. And it's trying to marry up that business-driven view with being a claimant lawyer, where the focus of lots of your staff is access to justice and rights for individuals – with the business. That's my job, and our director of finance and Martin Day's job, to try to find a way through that maze.
Are you optimistic that if there's a change in government next year, things might improve?
Yes. I'm not sure it will improve immediately, but I think generally there's probably a better understanding. We can take a few recent examples: the criticism of judges during Brexit, and the recent criticism of immigration lawyers. (And I’m not talking about fraudulent ones. If you're a fraudulent practitioner, you should be hauled in front of the regulator. I'm talking about people that are doing their job and then receiving vitriol, either for doing it or for being linked to the Labour Party.) I can't see either criticism of judges or lawyers for doing their job emanating from a Labour government. For the current government I suspect that it’s just another tool to try and win votes.
Leigh Day has been in the news quite a lot recently. Broadly speaking, what impact does media attention have on the firm and is it, on balance, a positive thing or a negative thing?
It's a good thing. We have been looking at our brand and at our media coverage quite a lot as a big-ish business. My feeling is that people resonate with the cases, though not necessarily Leigh Day. As a managing partner, I see cases and I think, well, I wish we'd done that case. That's a really interesting case or that's a novel piece of access to justice. So the media coverage is good, because hopefully people who wouldn't think that they would have access to lawyers, or have a claim, see that there is a possible challenge.
For example, there was coverage of the sewage and water pollution cases a couple of weeks ago. You would hope that people who live near a stream that’s now polluted, or who see sewage on their beach will see that case and say, ‘oh, I could bring a case’. They may come to Leigh Day, they may not. But it's more about using the cases and the coverage to help other people think ‘this is not right’, and that actually the law may be a vehicle for change.
Your partner, Jacqueline McKenzie, has been the target of negative stories in the press recently – as well as some positive ones. How has she and the firm handled that?
It's sad. I mean, she's just the most recent target. A few years ago, when the SRA was investigating Martyn Day, he was the target. Now it's Jackie McKenzie. Others too, such as Merry Varney, who was doing the Molly Russell inquiry. It was all positive, but the pressures on her for being involved in that are so difficult. So we recognise that occasionally lawyers may need to take extended periods of leave. They may need to speak to a counsellor. We may need to beef up our security at work. We're acting for Chris Packham and Natural Justice. He's had threats. Sometimes we've had post and emails that have contained not very nice messages.
It's a constant risk, but every so often it just bubbles to the surface. As a practice, we have in the past sought advice – and we may need to do again – from local police. They say, don't put your name in big letters on your door. Don't wear your lanyards when you're in the street. We've just got to be careful, but it is a shame that in the current climate, we actually have to think like that and we have to say to our lawyers, we'll offer you support just for doing your job. It's criticism for just doing your job and doing it professionally. Our regulator isn't unhappy with what we're doing. It's just the divisiveness in the message that comes across in some of the media.
You're bringing a collective action against Severn Trent Water. How did that case arise and why was the case brought on competition grounds?
We’ve done quite a lot of environmental work and various NGOs were coming to us about sewage, in rivers and the sea, but in particular the rainwater dumping. I suspect lots of people didn't know that water companies can, if it rains a lot, just open the sluice gates and let it out into rivers. We’ve had a lot of bad weather. There have been a lot of health complaints made to the water companies. And there's a cost-of-living crisis. So you get to the point where a lot of people are probably wanting action to be taken.
Why a competition claim? It's quite hard to find a cohesive group of claimants. You have to get the message to them, sign them up, make them a client, issue their claim, work it through the core process – whereas the opt-out process [in competition law claims] is the other way around. You can say, ‘if you find on behalf of this individual, we have a history of being able to get the message out to people’. It seems to me to be quite a sensible process to do it at the end, rather than go to all of the effort with lawyers and court time as well.
On the emissions claims, there are hundreds of thousands of claimants and claim forms. Doing the group litigation order process, and managing that large cohort litigation through, is really difficult. The same in the employment tribunal with equal pay. They struggle with thousands and thousands of claimants. The opt-out mechanism seems to work.
Finding the link between what water companies charge for a standard of service that they're not necessarily then delivering, seems to me to be a competition issue. And so that allows you to do the opt-out. I think the opt-out system allows access to justice. The Competition Appeal Tribunal and the UK courts are still getting to grips with the idea, because it’s new, but this claim seems ideal because the amount of compensation for each consumer is not necessarily a huge amount. So this is a way to do it that is proportionate and affordable.
Why did you bring a first claim against Severn Trent, rather than bringing multiple cases in parallel against all six companies mentioned in the press?
I suspect that had we done all six, the court would have picked one anyway. As to why we chose Severn Trent above all the others – I suspect we had most information on it and it was further ahead of the others.
Finally, if you could immediately change one thing about the country's justice system, what would it be?
I would make it quicker. Justice delayed is justice denied. I don't think it's recovered from the pandemic and I don't think it's recovered from years of underfunding. Everything just takes so long. For victims of crime, as well for areas we don't practise, it’s just too slow. The government and lawyers need to find a way to speed up system.
A lot of it is funding – for courts infrastructure, court staff, court buildings, court processes, but some of it is the rules and the management of the process. But generally, the courts need proper funding.