“The stand-out cases that stick in the memory are probably the ones that I can’t talk about,” reflects Katie Bradford, Linklaters’ long-standing head of property and finance litigation, who has recently stepped down to become a consultant partner with the firm.
Yet despite the constraints imposed by client confidentiality, Bradford has much to say as she reflects on a 35-year career in the law – one that evolved during a period of significant industry and market change.
“Back in 1982, I was working for a small high street firm with six partners and a degree of specialisation, but not within litigation. Property litigation was seen as a fairly straightforward area: landlord and tenant lease renewals and so on and largely in the county court.”
Evolving specialisation
During the mid to late 1980s, as real estate became more valuable, its financing more sophisticated and the volume of associated work invariably increased, lawyers such as Bradford began to specialise in property litigation.
However, she quickly realised that she wasn’t the only woman pursuing property litigation as a specialism and that many of the leading property litigators in the large City and West End firms during that period were female – a gender dominance that she identifies as rare in commercial litigation in the early 1980s.
“I remember consulting some leading counsel I worked with when I said I wanted to specialise in 1983 and they were a little surprised. It wasn’t something that many women did.”
Aware of the growing momentum, she organised a meeting of her female contemporaries. The initial group of around 14 women, which included Jenny Rickard (of the then Nabarro Nathanson) and Carole Peet (of what was then Denton Hall), became a forum for peer review and discussion and an opportunity to socialise with surveyors and judges at formal dinners.
As word of these meetings spread, Bradford recalls that she and the other members of the women’s group began to receive requests from male property litigators (who she suspects are now much more equal in number to female property litigators), keen to join. Her response, however, was always: “‘No. This is a small group and it’s a particular group and it’s a female group.’ We were proud of that.”
Formation of the PLA
Her approach gradually softened and conversations with her male counterparts eventually led to the creation of the Property Litigation Association (PLA) in 1995. Bradford and six others (“men as it happened”) came together to discuss forming an industry group that would represent those who had committed to the new specialisation.
“We were very tough in ensuring that it was truly specialised property litigators who were joining… If we didn’t know the applicant (ie had a case against them)… we would ask them to produce a reference of some sort – a case they had done. We got references referred to us from people like David Neuberger.”
The PLA has since grown to become a recognised body with a range of committees, which lobbies for law reform and responds to formal consultation. Its work has led to the creation of established industry practice such as the Dilapidations Protocol (formally adopted under the Civil Procedure Rules in 2012), work that Bradford – chair from 1997 to 1998 – is “greatly admiring of”.
Mediation
If specialisation was one area that she championed, mediation was another. Having trained as a mediator in the mid to late 1990s, Bradford has undertaken mediations on an occasional basis ever since and believes that they serve as a good reminder to litigators as to “why you’re stuck and can’t settle a case”.
She can’t help but think that mediation’s role within property litigation is different from in general commercial litigation, owing to the specialised nature of the property litigation industry and the inevitable familiarity that breeds with other practitioners – either socially or through lectures and cases. “That immediately gives you an opportunity to talk to the other side… and explore, in an appropriate way, negotiating settlement.”
Yet she wonders whether the rise in e-mail has eroded that personal approach and, as a result, there is far less personal contact with the other side than there used to be in the 1980s when “we had to meet our opposition, write letters or telephone”.
That decline, she thinks, is giving mediation added momentum as a way of finding a path to settlement.
Day in court
Despite the rise in mediation and alternative forms of dispute resolution in recent decades, Bradford has conducted an impressive amount of court work. Chalking up more than 70 trials – plus appeals to the Court of Appeal and House of Lords/Supreme Court – she has been involved in some notable reported cases. Of particular note was Silven Properties v Royal Bank of Scotland plc [2003] EWCA Civ 1409; [2003] 3 EGLR 49, which dealt with the duties of fixed-charge receivers – a decision that she considers gave “the common sense answer, but it was important that it was said”.
What Bradford vividly remembers from throughout the 1990s though were the rent review cases. She recalls a “fascinating time both in terms of the cases and the legal points that were decided” and one which she “really enjoyed”. It was a period that “clarified the ground rules for rent reviews and the drafting that followed” and she thinks it unlikely that we will see another flurry of cases in that area. Primarily, she says, because the valuers are now “such experts”. She adds: “I have great admiration for those valuation experts and they usually find an acceptable compromise.”
If the 1990s was synonymous with the rent review dispute, the period since, has, Bradford feels, been characterised by the joint venture dispute, particularly since 2006 when “finance became tight”. In bad times, “people fight about the remaining money”.
Predicting what will happen in the coming years is not straightforward and Bradford suggests that it has not been since 2007-08. “It is difficult to see where the next wave of litigation will come. But there will be one-off cases because somewhere, something has happened. Maybe somebody wants to question a large valuation. The figures get bigger and bigger.”
Remaining pieces of the jigsaw
It seems that much has evolved over Bradford’s 35 years in practice, but there are two areas where she would still like to see some judicial clarity. The first is a generalist area – relating to what documents judges are entitled to look at and can take into account on a construction dispute. The second is property-specific and relates to the insolvency litigation for Game (Jervis and others v Pillar Denton Ltd and others [2014] EWCA Civ 180; [2014] 2 EGLR 9) – a case in which Bradford acted for the administrators.
The decision by the Court of Appeal “did not resolve (it was not a question for the Court of Appeal) whether, say in a large building/site, the administrators have to pay for the whole of the site come what may or whether in certain facts, it might be appropriate just to pay for part. That, I would like to know the answer to”.
There is no doubt that Bradford will be keeping an eye out for the answers to these questions as she hands over the reigns to her successor, Frances Richardson. After so many years at the forefront of progressive industry change and despite her intention to spend more time enjoying her passion for cricket and theatre, it is easy to why she is not stepping back completely.
As she says simply when concluding her top five tips for those starting out in the industry today, “Enjoy it.” One thing that it seems Bradford undoubtedly has.
