What drew you to financial services litigation, and was there a moment early in your career that confirmed it was the right path?
It was really a function of the firms I started at. At Cravath and Milbank there was a lot of work for banks, both disputes and investigations, and the training was very much: if it has a litigation angle, run with it, regardless of sector. So there wasn't a huge amount of specialisation, but over time, simply by virtue of the clients those firms act for, large institutional financial services firms, that's where you end up. I was fortunate, because in a lot of those cases you see the full cycle of a piece of litigation and the issues within it, particularly around financial products and selling, which can be quite tricky. That keeps things interesting.
A good example, very early on, was the residential mortgage-backed securities litigation, where we represented Credit Suisse. There were a number of cases running at all different stages across the US, to use US terminology, from pre-motion to dismiss, through discovery, or disclosure as we'd say here, and on to trial. Seeing all of that play out at such an early stage of my career gave me a real insight into how litigation works, and into how interesting and how different each case is. That's what keeps you on your toes.
Having practised in both London and New York, how do you find the two legal markets differ when it comes to financial services litigation and regulatory investigations?
I'd say New York has a more developed securities litigation and class action environment, including shareholder and derivative suits. A lot of that derivative litigation actually happens in the Delaware Court of Chancery. I worked fairly junior with the partner Sandra Goldstein on some of those matters; she was very kind to me early on, when I was still finding my feet.
In terms of the substance, a lot of the underlying causes of action are similar, breach of duty, misrepresentation, negligence, fraud, but the statutory regimes and the rules under them can be quite different, so you can reach different results. There's also a different dynamic on the regulatory side. There's a broader culture in the US of lawyers moving from a regulator into private practice and back again; I don't think that's as prevalent in the UK, so it's a different process and a different style. But the core regulatory objectives are obviously similar: candour, transparency, fairness, and making sure there are appropriate enforcement mechanisms in place.
Whistleblowing is one of your core specialisms. How has the regulatory and legal landscape around whistleblower protections shifted in recent years, and where do you see it heading?
I think the UK's direction of travel is similar to the US, even if there's been some reluctance to head that way. In the US you have more developed processes around compensating whistleblowers, namely award schemes from regulators like the SEC, where a whistleblower might receive 10 to 30% of recoveries. That can be hugely significant: if you identify an issue and see the matter through to the end, and you're dealing with recoveries or losses in the hundreds of millions, firms that specialise in that area can generate significant returns for their clients.
The UK doesn't have a direct equivalent, but the direction of travel is similar, including newer developments like the HMRC tax informant programme. It's important that corporates and banks have rules in place to protect whistleblowers, including from retaliation. You often need to demonstrate good governance and robust compliance processes to regulators, and that's especially true when it comes to giving whistleblowers a clear channel to report issues and ensuring there's no explicit or implicit retaliation for raising them.
Class actions and securities disputes have grown dramatically in the UK. Do you think England and Wales is becoming a more attractive forum for these cases, and what's driving that?
Yes, I think England is becoming a more attractive forum. The Competition Appeal Tribunal seems to be busy with competition claims, and mass torts are increasingly being brought through Group Litigation Orders and High Court multi-party actions, you see that in the Dieselgate cases, and in the Mariana BHP case, where the latter involved over 600,000 claimants. These are huge cases. The UK is now the second largest litigation funding market globally, which is a major driver, alongside increasing claimant sophistication and US firms expanding here.
In the US there's long been an established platform of plaintiff-side firms specialising in big class actions, particularly under the securities laws — some very large, alongside boutiques. With more of that US presence in the UK, you're seeing it come into play here too. I will say the US still has some procedural advantages for defendants, motion to dismiss, stricter class certification, than is currently on offer here through GLOs and multi-party actions, so it's something to be aware of on the defence side. But it certainly hasn't prevented large claims being brought here in increasing numbers, particularly around ESG, where there's quite a lot of emphasis on how companies report and communicate to the market. The class action infrastructure has been around in the US for a long time; here it's certainly more nascent.
ESG is one of the big trends. You have issues like greenwashing and misleading disclosures, and parties like ClientEarth wanting to hold firms to account on climate change, human rights and governance. These are really important issues for companies to consider early, particularly cross-jurisdictional ones operating in different territories. The Mariana case, for instance, concerned a dam that collapsed in Brazil and ended up in an English High Court, so jurisdictional questions and questions of nexus matter a great deal. And, as I said, the funding aspect is central, litigation funders provide capital to claimants who wouldn't otherwise have access to it.
Financial services regulation has become increasingly cross-border. How do you manage a matter that's being investigated simultaneously by, say, the FCA and a US regulator?
I worked on a matter involving 1MDB, which had a number of firms and jurisdictions involved, including the UK and the US, so the DOJ and the FCA, for example. There can be differences in style and approach: US regulators, depending on the agency and the individual, can be a little more aggressive on timing and scope. A major challenge to be aware of is that information shared with one regulator can effectively be shared with others, given the degree of cooperation between them. So it's really important to be clear on coordination, which regulator is taking the lead, what that relationship looks like, and how best to present information in a way that protects your client's interests while showing you're being forthcoming and cooperative.
Data and privilege are another challenge in particular. Different rules apply in different jurisdictions, and you can run into regimes like GDPR or other local laws that differ from US expectations. So you really need a joined-up strategy across the whole matter.
Shareholder and securities disputes often involve massive document volumes and years of litigation. How is technology, AI in particular, changing the way you run those cases?
AI is the big one, and it's changing everything, but it's certainly changing how large, document-heavy disputes are run, allowing them to be run far more quickly and efficiently. It's not perfect, so it's important to exercise judgment and verify the output. Two things stand out. First, there are real risks around confidentiality and privilege with non-enterprise tools in particular. You see individual litigants using public tools with no lawyer involved, where they're not preserving confidentiality and aren't getting the benefits of privilege. On the flip side, it gives far more people the ability to draft, to improve their drafting, and to feed in documents and have a tool ingest them and help form a case strategy at the outset, so it lets people present their case more strongly than they might have in the past.
I'm really positive on it. People who talk about blocking or banning it in their organisation are taking the wrong approach, given how widely it's used, particularly at junior level, and that use is only going to grow over the next five to ten years. At DWF there's recent training and articles by my partner Richard Toomey that are really helpful in educating people on both the risks and the benefits.
Every firm has its own strategy, and it's a bit scattered at the moment, you hear of firms building their own tools, or using the likes of Copilot, which is in most of the bigger firms, alongside Harvey or Legora, which seem to be taking up a huge amount of market share, plus more disputes-focused tools. There's a real spread of offering, which I appreciate as a consumer, even if it can be a little overwhelming. But it's all heading one way, so you have to get on board.
The key is to check things carefully. It only takes one or two big mistakes for your credibility as a lawyer and a firm to be significantly undermined, so that's a huge part of the training at DWF. Virtually all the juniors I work with are using some form of it, to varying degrees. It's ubiquitous, so the focus needs to be on training, using it appropriately, and being alert to what's out there, whether there are better or more cost-effective tools. Ultimately it all has to be for the benefit of providing a better, more cost-effective service to clients; you should be approaching this from the client's perspective and what makes most sense for them. It's a different kind of technology to confront, there are real questions about how far you trust these models and how your actions will be judged in ten or twenty years' time, but the opportunities are huge, and it's genuinely exciting.
You've spent your career in some of the most high-pressure legal environments in the world. What's the best piece of advice you'd give to a junior lawyer who wants to build a career in disputes and investigations?
I'd say, honestly, I was a fairly poor junior and often didn't know what I was doing. I thought I was ready to take on anything, but it takes time, loads of time, and I'm still learning in a new role as a partner at a new firm. I'm fortunate that the firm is incredibly collegiate and helpful, and they've been really patient and kind. So my first point is simply: give yourself some time, and try not to put too much pressure on yourself.
The second is that if the environment isn't right, sometimes it's just not the right fit, and it's okay to move.
The most important thing is to find the right people, people you enjoy working with and respect. Culture matters hugely for anyone in any career, but especially for younger lawyers still finding their feet. The right environment lets you grow and feel more confident in yourself and your abilities, and that's a key part of being a good lawyer: being confident enough to trust your own judgment.
Looking ahead, which area of financial services litigation do you think is going to generate the most significant disputes over the next three to five years?
The first thing to say is that financial services remains the most litigated sector in the English High Court, and fraud is a major feature of that. Authorised push payment fraud in particular has become very prevalent and is driving claims, as are so-called Quincecare claims. Banks and financial services firms are encountering these on an increasing basis; it may differ year to year, but the broad trend is upwards.
As there are more and more financial services offerings from fintechs, you're seeing growth across those areas too, including the ESG and greenwashing disputes we discussed. And I think there'll be more claims involving AI in due course. There are some genuinely disturbing personal cases you hear of where AI use has gone wrong, and my suspicion, though I can't say for certain, is that we'll start to see increasing AI-related risk for banks and corporates in future. We'll see what that looks like; right now it's all very early stage.
Copyright & permissions
