Helping Businesses With the Fallout From COVID-19: Q&A with Andrew Bullion and John McElroy
The Danish-UK Association (DKUK) chats to new corporate members Andrew Bullion and John McElroy from Hausfeld London. Hausfeld is a specialist disputes-only law firm with offices on both sides of the Atlantic.
Andrew is a partner and leads the firm’s activity in the Nordic region dividing his time between London and Scandinavia and John is a partner in the commercial disputes team. We talk about developments in Denmark, but also about the Commitment they made to assist businesses adversely impacted by COVID-19.
DKUK: Welcome to you both. Perhaps not many of our members may know you are active in Denmark.
Andrew: That may be because we have no office in Denmark but we have been active in the Nordics since 2006. For example, we have worked with some of the largest Danish companies, pursuing their claims in relation to the Air Cargo, Trucks, and Marine Hose cartels, among others. Thanks to the Damages Directive whose rule changes were adopted in Denmark (and other EU member states) beginning 2016, it has become much easier for businesses to claim for losses suffered as the result of anti-competitive behaviour. If the European Commission, a national competition authority – for example, the Danish Competition & Consumer Authority – or a national regulator issues fines against businesses for their participation in price fixing cartels or for abuse of their dominant position, it is possible for those affected by that behaviour to claim compensation. Corporates do not always have the time to monitor these decisions and investigations. We can help with that, and we pursue these claims on behalf of our clients usually in such a way that means that we remove all the upfront cost and risk.
DKUK: And what about commercial disputes?
John: Danish law firms often have satellite offices in European countries with a team dealing with transactional or advisory matters. When their Danish clients have a dispute that needs resolving which is subject to English law or requires some English law input, we can help out. Such requests come via the law firm or the corporate directly.
DKUK: Would you agree that COVID-19 still seems to be the topic that plays most on people’s mind?
John: Indeed. As the pandemic fall out continues across countries globally, the impact on businesses grows – as does the severity. We have already dealt with a number of disputes arising out of COVID-19. The most obvious ones are breaches of contract arising out of business interruption, events or order cancellation, supply chain issues, non-performance, partial performance or disrupted performance of contracts. We have also seen a lot of contractual arguments relating to force majeure, frustration and material adverse change clauses. Not to mention insurance disputes. Depending on the circumstances, parties may have claims for losses suffered as a result of any of the above or may need to defend claims being brought against them arising from such issues.
DKUK: Could you name an example?
John: Force majeure arguments are a good example. To avoid complying with contractual obligations, some parties may seek to rely on force majeure arguments, with COVID-19 being an unforeseeable event. In those circumstances, the impacted party may well have claims against its counterparty for wrongfully seeking to rely on force majeure and may be able to recover its losses from the counterparty. Remember how the prices of hand sanitiser increased, especially at the beginning of the crisis? If a dominant player in the market uses the COVID-19 situation to unreasonably increase its prices, such potentially unlawful abuse of its position may have an adverse effect on a business operating in that sector and/or reliant on its products.¨
DKUK: When we spoke first, you mentioned the Hausfeld COVID-19 Commitment? What does this entail?
Andrew: A big part of what we do – and which is not always known as people see us as commercial lawyers – is our pro-bono work or how we use flexible fee structures. Improving access to justice for individuals and businesses lies at the heart of what we do. The impact of the pandemic will be felt for a long time after the health threat has passed. We wanted to acknowledge that COVID-19 will have a devastating impact and that the road to recovery for many businesses will be long.
John: Hausfeld London has agreed to commit up to £1 million of lawyer time to enable businesses impacted by COVID-19 to investigate claims they may have arising as a result of the ensuing business disruption. This is what we call the Commitment. Offering up lawyer time and expertise is the firm’s way to play its part in that recovery. The investigation will be done on a non-recourse basis, i.e. the claimant will not have to pay for that time spent. We were looking for a practical and thoughtful way of helping affected businesses. Something that is of real benefit to them in these challenging times.
DKUK: What do you mean by ‘impacted by COVID-19’?
Andrew: As explained in some of the examples we discussed, businesses may have incurred losses as a consequence of the actions of a contractual counterparty that may have failed to comply with contractual obligations in the wake of the COVID-19 pandemic. The aim of the Commitment is to assist claimants in that situation.
DKUK: Do you need to be an existing Hausfeld client?
John: No, any business could be eligible – but it is limited to businesses only and the contracts need to be subject to English law. We have set a maximum time we invest per claim at £50,000. The cap has been set because we believe that this offers sufficient time for us to provide clients with a preliminary assessment; and we want to make sure that a significant number of businesses will be able to make use of the £1 million Hausfeld COVID-19 Commitment.
DKUK: What if the fees surpass £50,000?
Andrew: The Commitment is for the investigation costs. We will then discuss with the client how they want to take the dispute forward – if at all. It is ultimately their decision and in almost all circumstances, those investigation costs will not need to be repaid.
DKUK: So, I think I may have a claim. What do I do?
John: You can contact us through the specific Commitment telephone number + 44 20 7936 0949 – or you can email us on [email protected]. We will consider each claim in its own right and gauge the level of investigation time needed which we will discuss upfront. Some claims may be smaller and may be swiftly resolved even.