There was a telling line in the aftermath of a transatlantic IP dispute settlement last week.
One person with knowledge of the matter argued Sullivan & Cromwell’s team advising British retailer Ocado had secured a victory over “a much larger IP litigation team from Kirkland & Ellis”, which acted for Norwegian robotics company AutoStore.
That this point about size even needed to be made suggests that the system has its challenges; the bigger party typically has the advantage.
Don’t agree? Consider some recent examples in the U.K.
Clifford Chance helped Rupert Murdoch’s News Group Newspapers to throw out claims of phone hacking by Prince Harry in London’s High Court last week. The Duke was represented by Clintons Solicitors.
Clyde & Co helped Credit Suisse win its legal action against a Saudi prince, over a loan granted by the bank for the purchase of a yacht in April. The defendants were advised by TLT.
And earlier this year, Freshfields Bruckhaus Deringer helped Deutsche Bank convince a High Court judge that billionaire financier Alexander Vik lied to the court in a $340 million case. Vik was advised by Brechers.
This is not to say that the merits of any of these cases have been distorted, just that the theme is the same: those with access to the biggest and best law firms often prevail.
And so we come to the role of litigation funding in society. These funders believe they are the ones that balance the scales of justice. If the case is strong enough they can pay for the necessary top-tier legal advice. Others disagree.
There is, and perhaps always will be, a debate about whether these financiers are helpful in allowing consumers to stand up to corporates, or unhelpful in thinking up claims that damage business and benefit few beyond themselves.
It is an argument that is raging in parliaments and supreme courts across the world. And it shows no sign of slowing down...
