Following the collapse of the Equitable Life and BCCI/Bank of England cases there have been the predictable cries about the cost of civil litigation. Having once sat as the nominated judge in another action brought by the liquidators of BCCI and seen the costs reach stupendous levels, it all seemed very familiar to me. Recent public hand-wringing about the expense was accompanied by finger-pointing. After all, surely someone had to be at fault.
Accusations have been directed at all the usual suspects. Up front are the lawyers. It is assumed that they must have advised their clients that they had a sufficiently arguable case to merit bringing the proceedings. With 20/20 hindsight it can be seen that this advice must have been wrong. It is surprising that this sort of suggestion is advanced at all. In the Equitable case the highest court in the land agreed that the claim was arguable. The same happened in my BCCI case. A large part of the case having been struck out at first instance, the Court of Appeal reinstated it as arguable. In each case a senior court supported the claimant’s argument. Is it seriously to be suggested that the lawyers were at fault in telling their clients the same thing?
