Senior legal professionals met at the Commercial Litigation Forum to discuss key dispute trends. Claire Ruckin reports

If one theme stood out at this year's Commercial Litigation Forum, it was the encroachment of criminal law on the working lives of commercial lawyers. This issue was highlighted many times at the fifth forum, where Lord Grabiner QC headed up a senior line-up of judges, barristers and solicitors discussing the key dispute trends at the Jumeirah Carlton Tower in London on 15 September.

During the morning panel discussion, The Creeping Criminalisation of Corporate Misconduct, the growing pressure on commercial law firms to recruit in areas such as white-collar crime, despite a previous reluctance, became apparent as clients become increasingly concerned over aggressive regulation and anti-corruption legislation.

The shift in landscape comes against a backdrop of the imminent Bribery Act, which is substantially extending the criminal liability of senior company officers. In addition, the panel noted a fundamental change of approach among regulators and policy-makers that has seen many new criminal offences, which in the past would have been dealt with as civil matters.

Panel member and Berwin Leighton Paisner head of corporate and commercial disputes Nathan Willmott told delegates that criminal law has taken a more regulatory approach and regulation a more criminal approach. He cited the example of the Serious Fraud Office pushing for self reporting and civil consequences whereas the Financial Services Authority (FSA) is increasingly pursuing criminal sanctions.

Willmott noted: "If a client has a significant problem, rather than look at civil law consequences the more important element is how criminal law views the client's conduct."

Gerallt Owen, panel member and head of international regulatory and corporate crime at Crowell & Moring, warned against the assumption that English law is less expansive than that in the US, stating: "Many current market practices are falling foul of the Bribery Act despite being compliant with US law."

The panel argued that the fact the Bribery Act does not require corrupt actions is likely to come as a surprise to corporates and could see the FSA coming after them as well.

In particular, in relation to law firms Owen warned: "If a law firm is a primary adviser in a panel for a big organisation and has provided advise on adequate procedures it could be the number one witness against its biggest client if those procedures are not correct and the systems introduced are not compliant with the Act. If the advice it gave was not spot on they might view it as part of a company's or directors' defence."

Ultimately, the panel agreed that commercial law firms need a criminal law presence within their disputes department in order to meet growing client demands.

Masters of disaster

In the afternoon panel discussion, entitled Disaster Litigation – Dealing with a Large-Scale Crisis in the Current Market, panel members discussed the tensions between PR advisers and lawyers.

The panel, chaired by Eversheds head of international litigation John Heaps, looked at the multi-party issues faced by litigators in cases of both accidental damage and force majeure in light of recent large-scale 'disasters'.

Alex Woolfall, panel member and head of issues and crisis management at Bell Pottinger, said that once disaster strikes, rushing out and describing liability is counter-productive, while 'sorry' does not have to be the hardest word. He described the conflicting positions of lawyers and PRs over the use of the word sorry: "Lawyers tell companies not to say sorry, whereas our argument is that your client might not have a company left."

Using BP as an example, Woolfall argued that public opinion hardened against the company thanks to its initial focus on liability and assigning blame outwards in the first press conference after the oil spill in the Gulf of Mexico. The Compensations Act 2006 deals with the topic and states that an apology can not be regarded as an admission of liability. Heaps said that apologising can go a long way to deflecting potential litigation, as a lack of an apology can lead to resentful claims against a company. However, despite this, Heaps warned that it is unsafe to assume the Act gives a carte blanche and provides some kind of safeguard. When making an apology companies should still take into account the risks including any impact on insurance policies and future claims that can arise.

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Lord Woolf of Barnes – A post-election analysis

- With the Government currently conducting a fundamental public spending review, the outcome of which is expected to be announced next month (October 21), Woolf expressed concern over cuts to the Supreme Court.

- Despite having already budgeted for 20% cuts in its second year, the Supreme Court is facing cuts of up to 40%, which Woolf said "cannot be done without affecting the quality of service that we provide. It is how those cuts are applied which will be most important".

- With cuts in his budget, Justice Secretary Kenneth Clarke will reduce his spending but this will not come from criminal justice because "one of the advantages of us being subject to the European Court of Humans Rights is that you can't reduce the standards of criminal trials". Therefore there will be imminent cuts to the civil justice system instead.

- Methods such as alternative dispute resolution and mediation reduce costs, but Woolf said these should be used as an option that the courts encourage but do not force upon people.

- The UK legal system brings in a significant amount of capital to the country but Woolf reminded delegates that it is easy for people to conduct litigation where they want to and England may not remain the forum of choice if quality standards are impeded as a result of the spending cuts.

- Woolf said there was little political support for libel reform, arguing that a current Bill on the matter will not receive an easy passage. He said it was welcomed by the Government as it was popular with the media but followed this by asking, "is the media popular with MPs and will MPs encourage freedom of speech with regards to recent events?"

- He noted that regulatory law is one thing that the Government is keen to keep strengthening and cited it as a growth area.

- Ending on an upbeat but cautionary note, Woolf said: "To some extent it is business as usual. There are threats out there that are going to have to be coped with but the legal professional has shown great ability to identify new areas of work to see through difficulties that the Government creates for them. The legal profession will go from strength to strength as long as the profession applies itself to ensure that happens."

• Click here for the latest Bribery Act briefings from Legal Week Law