In May 2020, the Cabinet Office released a somewhat optimistically entitled “Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency”.
The upshot of this guidance was that responsible and fair behaviour in dealing with potential disputes was necessary as bad behaviour would be bad for jobs and impair our economic recovery. The most obvious example of the Government’s implementation of this guidance is the moratorium on creditor winding up petitions that has recently been extended to 31 June 2021.
Over a year on and I read with interest the results of two recent surveys looking at how lockdown has affected attitudes and approaches to litigation and what the future has in store.
The first survey of 100 FTS350 companies found that 63% had adopted a more conciliatory approach to disputes with the majority (59%) expecting the level of claims to catch-up this year. The most surprising statistic for me was that whilst 56% of the companies said that they anticipated disputes and claims will have a material financial impact on their business, only 14% were concerned that such an increase in litigation could affect their ability to continue trading.
My surprise may be due to the fact that the survey was limited to FTS350 companies and I would expect the results to be less optimistic when surveying the SME world that I would respectfully suggest is a more accurate barometer of the challenges on the horizon as it is this world that is likely to be the first to feel the impact when the litigation gloves are removed.
The second survey of more than 100 commercial litigation and international arbitration lawyers found that 66% expected an increase in claims. In my experience, there has not been a noticeable drop off in the number of claims being pursued but I am seeing a more conciliatory approach to disputes. At the end of the day the old adage 'cash is king' has never been more relevant.