Managing contract disputes during a pandemic

What should I be doing?

• Review key contracts to determine whether they contain “force majeure” or material adverse change (MAC) clauses
• Get advice about whether any force majeure / MAC clauses may be triggered, or whether any contracts may have been frustrated
• Consider whether any contract disputes need to be served
• Check what contractual / statutory time limits apply to any claims
• Reach out to counterparties and be pro-active about seeking to agree commercial resolutions
• Consider doing so on a “without prejudice” basis, if there is a risk of a dispute
• Take steps to mitigate your losses
• Consider whether any notifications to your insurers may be prudent
• Write to your counterparty to reserve your rights and preserve  / protect your position
• Issue a “document hold” notice to preserve any documents that may be relevant to a dispute
• Get advice about how best to maximise claims to legal professional privilege over any sensitive communications or documents relating to the dispute
• Consider your legal options as well as commercial solutions – the two often work best in parallel
• Consider which employees could be needed as witnesses in a dispute, and whether that needs to be factored into any planned redundancies

What shouldn’t I be doing?

Don’t:

• Allow documents that may be relevant to a potential dispute to be destroyed or deleted, whether by routine document retention policies or otherwise
• Assume you can ignore a contract merely because it contains a force majeure or MAC clause
• Rely on any force majeure / MAC clauses or terminate any contracts without taking advice first
• Lose members of staff who may be key witnesses and/or integral to the handling of a dispute without consideration​

Further information

If you would like to find out more about this topic or you if need legal advice, please contact our litigation and contract disputes lawyers.