27th April 2020 ❘

Avalanche of Litigation expected

Lord Neuberger, former President of the Supreme Court, told the BBC Today Programme this morning that the courts needed to be ready for “an avalanche of litigation” of commercial and business related claims arising from the disruption of contracts during the crisis. He is part of a panel who are planning to produce suggestions about how the country may deal with this when the crisis recedes and when the courts are already going to be suffering backlogs of existing cases slowed down by the current situation. He recommended parties consider mediation and said other proposals may include the Government acting to change the law or Judges developing the law through their judgments to reflect the unusual times we are in.

His panel have yet to report, but are clearly concerned about the courts’ capacity to manage new cases with any speed. Even before the pandemic, cases were taking on average over a year to take to trial. The institutions who offer arbitration are likely to be just as clogged up as the courts.

For genuinely exceptional and urgent matters it is always possible to jump the queue and obtain temporary relief with an injunction, but the courts are likely to be stringent about what genuinely is essential to prioritise, when everyone will be experiencing hardship and looking for the earliest possible resolution.

Mediation has the benefit of being much more flexible, quicker and cheaper than litigation, and able to call on a large pool of mediators, although it will still be worth thinking ahead because mediators are likely to also start to get booked up.

There is also likely to be a demand for other forms of structured dispute resolution, including co-ordination of claims through common interest groups and compensation schemes. We may see an increase in the use of partly or wholly automated online dispute resolution offered by consumer-facing businesses.

Burnetts Dispute Resolution Team are experienced in a wide variety of dispute resolution mechanisms. The team includes two accredited mediators. Please do not hesitate to contact our Dispute Resolution Team on 01228 552222.