Former judges call for "breathing space" to avoid litigation rush

International courts and arbitral tribunals need a "breathing space" to avoid being overwhelmed by commercial cases following the COVID-19 pandemic, according to a group of senior retired judges. 

Former Supreme Court Presidents Lord Neuberger and Lord Phillips of Worth Matravers are among those supporting the "breathing space" project, set up by the British Institute of International and Comparative Law to encourage contracting parties to negotiate or mediate any disputes rather than "rush into litigation" over their contractual rights under the coronavirus situation, which in any event are going to be uncertain. 

The Institute notes that, while most contracts have provisions dealing with unexpected events, and the law has principles to cover this, no one anticipated the disruptive effect of COVID-19.

Also backing the project are former Court of Session judge and EU Court of Justice President Sir David, who called for a "rational and equitable solution" beyond insisting on contractual performance, or attempting to rely on the doctrine of frustration; and Sir William Blair, a former judge of the London Commercial Court, who said new thinking would be required if the law was to play its part in "getting international commerce back on its feet".

However Jonathan Compton, a litigation partner at London solicitors DMH Stallard, described the "breathing space" concept as "both a misconception, and a honeyed trap".

The misconception arose because of the rules and protocols in place to avoid litigation being pursued prematurely, and because any general moratorium on new claims "would run the risk of commercial contracts and payments simply stopping". 

More fundamentally, "his Lordship’s argument will tend to be taken advantage of by companies who will pray in aid the article written by him to justify late payment when they in fact have the means to pay. The result may be to encourage litigation rather than to discourage it".

He concluded: "Let the solicitors do the job they have been doing, which is one of triage of cases, clients and defendants, and let the Supreme Court do its job of deciding fine points of legal precedent and authority."