EY: Businesses shun litigation for conciliation as rise in legal claims expected

EY: Businesses shun litigation for conciliation as rise in legal claims expected

David Lister

UK businesses have avoided using litigation to resolve commercial disputes during the Covid-19 pandemic, instead turning to negotiation and mediation, according to new research by EY.

The research suggests that UK companies have heeded official guidance, released by the Cabinet Office in May 2020, which called on corporates to steer clear of litigation throughout the pandemic. Almost two-thirds (63 per cent) of the more-than 100 FTSE350 and private companies surveyed by YouGov for EY said they had adopted a more conciliatory approach to business disputes since the pandemic began.

Four-fifths (81 per cent) of the companies surveyed said they had applied reliefs to contract terms since the pandemic’s onset, with 69 per cent granting or receiving time extensions, 59 per cent renegotiating other contract terms, and 25 per cent granting or receiving payments for additional costs.

A huge 77 per cent of companies surveyed had used alternative dispute resolution (ADR) to resolve an issue during the pandemic.

David Lister, a Scottish claims & disputes partner at EY, commented: “Economic disruption and contractual performance issues on the scale we’ve seen in the last year would ordinarily be accompanied by a rise in claims as companies look to protect shareholder value. However, the exceptional circumstances presented by the Covid-19 pandemic have not led to the rise in litigation you’d expect – so far.

“Almost two-thirds of those surveyed reported that they have taken a more conciliatory approach while the business community grapples with an unprecedented crisis, and this appears to have contributed to a short term move away from companies embarking on litigation.”

Mr Lister added: “While we think some of this is driven by a genuine desire to ‘do the right thing’ during the pandemic, a further and perhaps more important factor is that businesses with claims to bring have spent the last 12 months focused on simply navigating the operational impact of Covid-19.

“Many businesses haven’t had the time or resources to bring potential claims. As vaccine rollouts continue, government support ends and attention turns to recovery, that balance is shifting, and a need to protect shareholder value will prompt businesses to become more active in pursuing claims as a potential avenue for recovery in the near future.

“It also seems that those that have used ADR have seen the benefits of doing so and may be more likely to use this option in future.”

Almost one-third of corporate respondents (32 per cent) said that, during the pandemic, they had deferred or stopped investigations which they would have pursued beforehand.

Looking ahead, while 48 per cent of corporate respondents said that a ‘continued desire to take a more conciliatory approach to counterparties’ would influence their decision on whether or not to pursue a claim in the next year, 62 per cent said their decision-making would be influenced by a need to ‘maximise the recovery of losses and protect shareholder value’.

Both corporates and law firms expect litigation to increase over 2021 compared to ‘normal’ pre-pandemic volumes. As well as 59 per cent of corporate respondents expecting claim volumes to rise, a parallel EY survey of over 100 commercial litigation and international arbitration lawyers found that 66 per cent of respondents also expected Covid-19 to prompt an increase in claims.

Almost half (47 per cent) of corporate respondents have raised or anticipate raising a claim as a result of Covid-19, while 31 per cent anticipate receiving or have received a claim.

EY’s research also found that companies do not feel prepared for a rise in litigation and that some are concerned about the potential financial impact of claims and disputes on their business.

Over half of corporate respondents (56 per cent) said that they anticipate legal claims and disputes will have a ‘material financial impact’ on their business, including one-in-seven companies (14 per cent) who believe the pandemic-related claims they may face are a risk to their going concern status.

Despite the financial implications of claims, a significant minority (43 per cent) of corporate respondents say they feel unprepared for a rise in activity. While 62 per cent of lawyer respondents recommended that businesses should undertake an assessment of their contract risk and evaluate potential legal remedies, only 45 per cent of corporate respondents had undertaken such an exercise.

Maggie Stilwell, UK&I claims & disputes leader at EY, said: “It is of concern that corporate respondents said that they felt under-prepared for any increased claims activity given the pressure on available resources, the potential scale of claims, wider operational and financial pressures and uncertainty over the long-term impact of Covid-19.

“That said, in recent months we have noticed an increase in clients wanting to understand contract risk and performance and evaluate financial and commercial remedies open to them, so they can focus actions and limited resources in the right areas. Independent and impartial advice can play an important role in this process.”

The research also revealed discrepancies in where corporates and the legal world expect claims to arise.

Both corporate (59 per cent) and legal (68 per cent) respondents were most likely to say that ‘breach of contract’ claims would arise from the pandemic, but the two groups differed on the next most common types of Covid-19 claim.

Corporate respondents were likely to expect ‘investment treaty disputes’ (31 per cent) and ‘insurance’ and ‘fraud’ claims (both 29 per cent); legal respondents, by contrast, were much more likely to expect ‘insurance’ (42 per cent) and ‘fraud’ (36 per cent) claims.

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