Research: environmental, social and governance disputes will dominate future litigation landscape

Research from Byfield Consultancy published today (11 February 2022) has indicated environmental, social and governance (ESG) disputes are set to dominate to the future litigation landscape. The report also highlighted the growing importance of litigation public relations (PR).

Researchers interviewed general counsel, litigation funders, law firm partners, QCs and PR advisors across multiple jurisdictions. 50 respondents in London, New York, Singapore, Paris and Dubai also completed a survey on their attitudes to litigation PR.

The report identified the top five areas predicted to dominate future high-profile disputes. ESG disputes came out top, with almost a third (30 per cent) of respondents citing ESG litigation as a likely dominator. This was followed by collective actions, cited by 14 per cent of respondents; 10 per cent of respondents thought data privacy would dominate, closely followed by medical/pharmaceutical (nine per cent) and Brexit/international trade disputes (seven per cent).

Nick West, partner and strategy officer at Mishcon de Reya, said: “There’s no doubt that we’re going to see large number of ESG claims. It’s going to be a fertile ground for a whole range of disputes. We’ve already seen this trend happening in other jurisdictions, where groups of members of the public bringing actions against governments’ decisions in the world of climate change, or shareholder cases being brought against companies in the world of greenwashing".

The report also analysed the impact a litigation PR strategy can have on the outcome of a dispute. The potential reputational fallout from ESG-related infringements, which the public may perceive as unethical, could greatly affect a business’s value and ability to acquire investment and talent. As such, Byfield suggested there is more need than ever for reputational management, which allows companies “to be fully in charge of the narrative”.

Researchers interviewed key stakeholders in various jurisdictions, and analysed the use of PR in disputes, alongside the more traditional use of press and social media. In more litigious jurisdictions, such as New York, it found the litigation PR sector is well established. However, in areas newer to dispute resolution, such as Dubai, the desire to settle out of court, alongside the more conservative nature of both clients and the press, has resulted in less use to date of litigation PR tactics.

The research found the majority of survey respondents (61 per cent) considered reputational impact when advising clients on a dispute. Over three quarters (76 per cent) of respondents agreed it is necessary to consider litigation PR in a client’s legal strategy in a dispute. However, it was revealed PR consultants’ involvement in litigation strategies remains low, with only eight per cent of respondents always involving external PR consultants.

Head of Linklaters’ dispute resolution practice (London office), Satindar Dogra, commented: “If it is a dispute which goes to the way in which you behave or treated people, whether you have been open and honest, if it goes to your reputation and your integrity, then the PR element becomes much more important”.

Gus Sellitto, managing director and co-founder of Byfield Consultancy, commented: “With the rise of group-actions, alongside increased media interest in disputes, the need for litigation PR has never been clearer”.

He added: “With the increase of media interest, particularly in areas of conduct and ESG, companies and others who are involved in disputes will need to manage the narrative around these ‘clickbait’ issues. Litigation PR will be more important than ever as these issues begin to take centre stage”.