Why winning in court is no longer enough: A Conversation with Hugh Evans

In this episode of A Matter of Reputation, Gus Sellitto speaks to Hugh Evans, former disputes partner at DLA Piper and now a senior adviser to Byfield’s Disputes and Investigations team, about how reputation has moved from the margins to the centre of litigation strategy.

Thank you for listening!

Transcript

SPEAKER_00 0:12

Welcome to A Matter of Reputation, our podcast focused on delving into the business of litigation and the intersection of disputes, investigations, communications, and policy in the UK and internationally. I'm your host today, Gus Vito, founder of Byfield Consultancy, and today we are really pleased to have Hugh Evans, a former disputes partner at international law firm DLA Piper, and now a senior advisor to our specialist disputes and investigations team at Byfield. Hugh, welcome. It's great to have you on the show. It's great to be here. Tell us a little bit about your background in disputes, Hugh.

SPEAKER_01 0:53

Well, I retired from full-time practice two years ago, having spent just under 44 years full-time in the law, one way or another. Started out on the 1st of September 1980 as an article clerk, as we were called then, at a firm called Edge and Ellison, which is now the Birmingham office of Squire Patton Box. Spent most of the 1980s there, did quite a bit of insolvency litigation and some work for a client bank of the firm. Joined DLA Piper in April 1989, spent most of the 1990s slowly doing less insolvency work and doing more banking recoveries. By the 2000s, I was doing claimant and defendant work for a range of banks and other lenders. Obviously, the 2008 crash threw up a lot of litigation. By the 2010s, I was doing more professional negligence work. And there was also a shift into defendant work for financial services clients, including cases where there was scope for mass claims with common issues, did a lot of derivatives miss selling for clients during that decade. And then in the 2020s, in the four years up to retirement, high value, mainly defendant work, culminating in a three-month trial in the Chancery Division at the end of 2023, which was a massive exercise.

SPEAKER_00 2:24

You mentioned two things there that are really interesting, Hugh. Mass claims, which we're seeing a lot more under the collective redress regime and the sort of class action mushrooming across Europe. So that's a real area of focus, but also banking disputes and banks uh have had reputational issues and continue to have reputational issues uh over the years. So, how how do you see the reputational landscape having changed during your career? It's evolved massively.

SPEAKER_01 2:58

You have to bear in mind, I was admitted as a solicitor in October 1982. And you may not be surprised to learn that I had a very traditional conservative view of PR and litigation. Disputes were to be settled in courts, not in the newspapers, not on the television. And I think that my view on that really started to change after 2008, which not only was it the immediate aftermath of the financial crash, but also you've got social media in its infancy, and the weight of media criticism that there was on the banks in those immediate years after 2008 filtered them from the boardroom to the legal teams to the litigation teams. And all of a sudden, we all became very much more aware of the concept of reputational risk, which in turn was something that really again came to the fore in the 2000s. A slowly evolving emergence of reputational risk, and then the sort of Big Bang of 2008, the arrival of social media drives it all forwards. Now, in 2026, it's an essential component if you've got a big high-profile case.

SPEAKER_00 4:21

Yeah, that really chimes with our own experience of being part of the conversation earlier on. I think it's still very much the case that there's a lot of work to do in terms of really demonstrating why litigation communications is a really important part of the overall litigation strategy. And I think we are getting called in earlier. There's still work to do in terms of getting that kind of coordination between the external legal teams, the client's in-house team, and an external PR specialist advisor like us potentially coming in to help. So you talked about sort of having your view changing over the years. How how does it work best then when you've worked with litigation PR teams?

SPEAKER_01 5:10

Litigation is a team game. That's obvious. You're working with barristers, and it's no longer a hierarchical structure and litigation. Everybody's all part of the same team. Litigation PR advisors, they're just part, they're just part of the team as well. And I think they need, perhaps selectively, but nevertheless, need to be a big part of the team. They need to be aware of obviously what the issues in the case are about and where the pitfalls might be, knowing where the problems are going to come, knowing perhaps where the witnesses uh who maybe not that reliable are going to be giving evidence where the difficult documents are going to come out, because you can only do your job to the best of your ability if you know what's keeping the lawyers awake at night and the client.

SPEAKER_00 6:10

Absolutely. We're seeing a lot more information around litigation here. It's become much, much more available. So, how does that change both the visibility of litigation and the reputational aspects of the protagonists involved in litigation?

SPEAKER_01 6:29

Well, I think you always need to have half an eye on how anything you write, and it is largely about documents, how anything you write is going to be perceived by the media and the general public. There will be public access to skeleton arguments, witness statements, written opening and closing submissions. And the pilot scheme is about seeing how the current rules around two clear days after the hearing starts work, um, how perhaps the media, the mainstream media, the the you know, the the broadsheet journalists, as it were, respond to that, whether they feel it's it's working for them. And it'll be interesting to see what compliance levels are like. I was looking at some cases where there were interim hearings like case management conferences in the early weeks of January, and skeleton arguments weren't appearing on the system, but the system doesn't tell you whether the hearing settled, whether the hearing was adjourned, in which case probably the documents didn't need to be filed, or whether the hearing went ahead and the documents should have been filed but weren't. So when the interim review comes forward, it'll be interesting to see what compliance levels look like. But it can only be a step in in the right direction.

SPEAKER_00 8:04

And does that that step in the right direction, does that apply to the parties as well to litigation? Does it does it turn the volume up on the reputational risk, the reputational threat? Do they need to be more aware of of some of the risks that they face with having more transparency around documents?

SPEAKER_01 8:22

I think if you're a party who is not used to the litigation process, especially if you're a party, perhaps if they've got something to hide, yes, that's going to be a big issue. For the institutional clients for whom litigation is just part of the price of doing business, then I think it's less of an issue because they're already tuned into the fact that because they're an institution, as it were, or a major corporate, any misstep by them is probably going to be picked up and reported. So I suspect that some parties, some law firms, and yeah, some members of the bar will find this less of a challenge because they've been used to writing skeletons that are probably going to be read by the media at some point anyway, compared to others who are less familiar with the process and perhaps less familiar to the scrutiny that you get in the 20th century.

SPEAKER_00 9:25

We're talking more and more about how AI is being applied to the legal sector, uh, from a positive perspective, all the way through to you know, it's going to replace lawyers eventually. What are your thoughts on this license consultation and tell us a little bit more about it?

SPEAKER_01 9:41

Yes, it's a reflection, I think, of the fact that AI is now with us, whether we like it or not. And there have been some high-profile instances of uh litigants putting in skeleton arguments that have been put pulled together with the use of artificial intelligence, which has hallucinated cases and other citations, and they've been caught out, and stern warnings have been issued by senior members of the judiciary, and rightly so. But you can't fight against it. So, drawing on experiences around the world in other common law jurisdictions like Singapore and some of the district courts in the United States, the Civil Justice Council has produced a paper which is consulting on the use of AI by lawyers, and by that I mean litigants in person are out of scope here, by professional lawyers in the production of statements of case, skeleton arguments, witness statements, and expert reports and written opening and closing submissions. And the core issue in the consultation is whether it should be left to the regulators to set regulatory standards around the use of AI in documents used in court, or whether they should go further and require a certificate from the relevant lawyer certifying whether or not artificial intelligence has been used in the production of the document. A bit more transparency, if you like. There's then a further question about whether you go even further and say that the certificate has to state which AI model or machine has been used, whether it's co-pilot or chat GPT or something else. It's also very clear that it's not really worried about what they call administrative AI, which is using AI for, say, translation or spell checking or the more administrative tasks. It's about substantive issues. And I think for myself that there should be a certificate. If you, as the lawyer in charge of the case, the solicitor involved in the witness statement or the barrister involved in the skeleton, have to sign a certificate, put pen to paper. You think a bit more about the process by which you've got to where you are. And it introduces a rigour and discipline, which I think at this stage in the evolution of AI is quite important.

SPEAKER_00 12:46

And just to clarify, this consultation makes it very, very clear that this is for a consultation about drafting of documents in legal cases, uh, but AI is not to be used in the drafting of witness statements. Is that possible?

SPEAKER_01 13:02

Definitely not in the drafting of witness statements. The rules on witness statements were overhauled about four years ago, four or five years ago. And actually, certificates are now required to be signed uh by the relevant solicitor in that particular case, certifying compliance with best practice over the production of the witness statement. But no, witness statements is witness statements are supposed to be in the witness's own words, and AI is not the witness's own words. So that's out that's out to start with. I think the consultation does perhaps hint at permissible use of AI, maybe to summarize documents that may be discussed in a witness statement. So sort of secondary use of AI like that, but certainly not for the direct evidence.

SPEAKER_00 13:54

Yeah, I mean that that sort of for me starts to ring a bit of alarm bells when you start thinking about witness statements and AI. Where do you think AI is really going to help in the litigation process? What do you think is currently working well, and where do you see AI evolving in litigation?

SPEAKER_01 14:11

I think where AI has great potential, it's particularly around the disclosure process, and the consultation document actually acknowledges that AI is being used to a yeah degree already in the disclosure process, and it very clearly parks that out to one side and disclosures out of scope of that consultation. So there's there's that. And I think in summarizing large numbers of documents, I mean, any size of case these days has a lot of documents in the electronic age. Um, there's been at least one upper tribunal case I'm aware of where the tribunal judge says in their judgment, I have used AI to summarize the documents for the purposes of this judgment. They do go on to say, I read the documents and I therefore have a good feel for what the documents say, and therefore I know AI has got it right. So there was that sense check already there. But something like that, if it shaves off one, two, three, four hours in the writing of a long judgment, that's a good use of time and that's a good use of technology. And yes, it does have the potential, I think, to reduce numbers in the profession, which is uh a diplomatic way of saying yes, it's going to reduce the number of lawyers. But judgment, particularly around when advising clients, is a big part of what we do. And obviously, judgment in the litigation process is central to it, it's a judge, and that's a human activity which is driven by a human brain, which doesn't always get it right. That's why there are appeal processes. But certainly, from my perspective, my personal jury is still out on whether AI will ever be able to achieve the level of nuance and subtlety where it can seriously replace an experienced human brain.

SPEAKER_00 16:33

I completely agree, Hugh, and that brings us neatly on to uh looking at some really topical issues in the news, uh, litigation in the news, disputes in the news, and one that's really grabbing the headlines is Chris Binoli, who uh has taken on the FCA over his decision to impose a lifetime ban on him. What do you make of this challenge that he's bringing to you?

SPEAKER_01 17:02

I think it's very interesting because he's obviously a very wealthy and well-resourced individual. And his appeal should properly test the boundaries of the FCA's jurisdiction in what it calls non-financial misconduct. And to put that into a broader setting, professional regulators generally over the last five or more years have started to do more around non-professional misconduct, so maybe misconduct outside of the office, but misconduct that has the potential to affect your integrity as a regulated individual and the work you do and the public confidence in your profession. And five or so years ago, we saw a magic circle partner taken to the disciplinary tribunal by the SRA over conduct outside the office. In that case, it was it was consensual conduct. Um, and he was found guilty, as it were, by the disciplinary tribunal, but succeeded on appeal with the High Court, as it were, pegging back the SRA's perception or the tribunal's perception of what amounted to professional misconduct in that sense. The FCA has been doing similar things in its in its jurisdiction. It has new rules coming in at the end of this year, and obviously Crispin Odi's case gets tested under the old rules. And it's also interesting because it directly concerns questions of uh governance and integrity, because what happened, for any of your listeners who who may not be aware, is that he faced allegations of sexual harassment and the executive committee at his hedge fund, which had the disciplinary remit, was going to consider them. He didn't like that, so he used his power as the owner of the hedge fund to remove them all. And he installed a different executive team. And when the new executive team decided to grapple with the issue, he got rid of them too. And the FCA's case is around integrity and governance as to what he did within his own regulated business. But of course, none of that would have happened if there hadn't been allegations of sexual harassment to start with. And this is just act one of a two-act play or drama, if you like, because the act two will come when he faces claims, as I understand it, from some of the women involved, and in turn he is suing the Financial Times over its coverage of all of this. So this is Act One. It started yesterday in the Upper Tribunal, which hears appeals from FCA uh disciplinary decisions. I spent half an hour or so in court 15 of the Rolls Building earlier this afternoon, uh, as uh Chris Binode's counsel um works his way through a very lengthy chronology, and we're now it was the afternoon of day two, and he's still opening his case. So this clearly uh has a way to run, but it will test the boundaries under the current regime, and there will be cases under the current regime for some time uh to come, and it will be an important test of all of that, I think. This is only the start, there will be more to come, and yes, the next three weeks in the upper tribunal is going to see some interesting reporting.

SPEAKER_00 21:05

Yeah, we will keep a very close eye on that, Hugh. And then finally, just we talked a lot about technology and a lot about cases and trends. The Solomonic report for 2025 and uh Solomonic is uh, as we know, uh provides lots and lots of data on court filings, uh produces a really interesting summary at the end of the year and beginning of the new year, looking at the previous year's trends. What did you make of that report? What what what stood out for you?

SPEAKER_01 21:33

Well, fascinating, um, especially the page where you provided your thoughts on uh reputation in the course of litigation. But um it's apparent the volumes remain high in the courts it's covering, the business, you know, the business and property courts. There are ups and downs in different different sectors there, as you would expect, sort of from year to year. Uh financial services is. Is still strong in terms of the number of claims issued, but outside the two big areas of motor finance, where there's an overlap with what the FCA is doing, and advanced push payment frauds, and the uh Philip and Barclays case of a few years ago, there's there's no real new trends emerging in a in a wider context. Another area though, which is really quite striking, um, is probate claims, and they have seen uh quite a significant increase incrementally over the last sort of four or five years, and you also we also all read a lot about them in the press these days, and I think that may be a reflection of modern families, more partnerships, fewer marriages, insufficient planning. In some cases, uh you can get your will written very cheaply and very easily these days, by firms that are not regulated solicitors, and other products are cross-sold by those firms as well around financial planning on death and so forth. And you've also got a lot of, if you like, new wealth out there and old legislation, because a lot of the legislation around wills and what happens on death is really very, very old. You've also got the now 50-year-old inheritance act, which permits claims by family members who are dependent on somebody who's died but for whom insufficient provision has been made in the will. So I think a combination of those things is see is driving an increase in the number of claims, which means I think that private client firms and their litigation departments are probably going to be quite busy. And the traditional chancery bar, for which this is their meat and drink every day, is also going to be busy as well. We'll also read more about them in the press because actually it's a good story for a journalist on a quiet day.

SPEAKER_00 24:18

Yeah, I think the probate once stood out for me as well, Q, and that that increase. And of course, it will be interesting to see where where those cases are coming from the badly written will right through to much more complex family office type disputes, uh, which often have an international element. And as we know, they make really, really good media copy. So I think how some of those trends correlate to the headlines we then read about those cases is going to be really interesting. And I think looking at that data and then sort of attaching it to media coverage around those areas. So, are we going to see a lot more coverage of probate disputes? What we already already are in the media, as you say, it makes a good story, it makes a good Daily Mail story, and I think we're likely to see uh more of those. So, Hugh, we're coming to the end of our time together today on the podcast. I wanted to ask you, it's been a fascinating discussion. Thanks again. I wanted to ask you, what did you most enjoy about being a litigator? And what advice would you give to an aspiring litigator today in the context of all the things we've discussed? And you needing to have sort of more of a horizon scanning view of the both the legal uh and reputational risk environment as a modern practitioner.

SPEAKER_01 25:47

What did I enjoy? Well, I think it appeals to my competitive nature. If you go into a courtroom, there's going to be a winner and a loser. Yes, I did a lot of settlements, an awful, an awful lot of settlements, but it appeals to my competitive nature. And it may come as no surprise that outside of work team sports like rugby and football are what I like watching. So competitive teams. If I was talking to somebody starting out today, I'd probably say, I think, a couple of things. The first thing is you've got to know the law. You cannot be a good litigator without having a good grasp of the law. There's a story from when I was at DLA Piper and a senior corporate partner who had headed the GAL corporate group, and he had been interim head of the restructuring group, and he'd been interim head of the litigation group. And he used to tell people that having done those three roles across a broad cross-section of the firm, in his view, the litigation group did more hardcore law than the rest of the firm put together. And I just think that's right. You can't do your job unless you really know the law. So that's the first thing I would I would say. The other thing I would say, and my former colleague uh Adam Ibrahim was absolutely relentless at this. Um, step back, look at the big picture. How does what you're doing play out for the client in two or three years' time? Winning the case that you're so heads down in may not be a great victory if, because of the way you win it, the client ends up with a regulatory investigation or a media campaign against it. And you've got to be looking at the bigger picture, the wider implications outside the four boundaries of the case all the time. And that's especially important if you're a solicitor. Arristers are fantastic at winning the case for you, and that is what they are paid often very, very well, to achieve. But they will be focused exclusively on getting that win. Your job as a solicitor is to see what that win means in the broader context for the client, and essentially, success in that in that way means you get a second or third and fourth instruction from the client. So that would be my advice to a much cleverer, much harder working 20-something starting out in the profession today from this creaking old 67-year-old.

SPEAKER_00 28:52

Hugh, uh that is very sage advice, and uh we have that was a really interesting conversation. Thanks for your insights, thanks for coming on, and you've been listening to a matter of reputation. Thanks, Hugh.

SPEAKER_01 29:06

Thank you, Gus.