Litigation Forecast 2021

What will New Zealand’s regulatory and litigation scene look like in 2021? MinterEllisonRuddWatts’ Dispute Resolution team discuss trends and makes predictions for the year ahead.

It wasn’t that long ago that a surge of commercial litigation flowing from COVID-19 was anticipated. Contractual disputes relating to the performance or termination of contracts were expected to be litigated and there was a real risk for directors who failed to consider and respond to the risks arising from COVID-19.

But the surge in Covid-related litigation never (or has not yet) arrived. While there were certainly disputes between commercial parties, what played out last year was businesses getting on with doing business and taking a pragmatic approach to resolving disputes.

Of course this is not universal, with a number of industries continuing to struggle because of New Zealand’s closed borders, supply chain issues and slowing global growth. We expect business casualties and litigation to flow as a result, but not at the scale anticipated in the first half of 2020 – unless of course there are further lockdowns.

Aside from litigation stemming from Covid-related issues, we anticipate increased regulatory actions against companies and directors in 2021:

  • the Financial Market Authority will continue to focus on governance and culture while also taking an active enforcement role around anti-money laundering breaches, where regulatory tolerance for non-compliance is decreasing;
  • the progression of WorkSafe’s prosecution of three directors of a person conducting a business or undertaking associated with the ownership of Whakaari/White Island will bring a renewed focus on officer compliance with their due diligence duty;
  • the Privacy Commissioner will work with other regulators to ensure that agencies meet their privacy obligations and are both cyber-secure and resilient;
  • the Commerce Commission will be particularly active, including around environmental claims, pricing representations and enforcing limits on the fees and interest that can be charged on high-cost consumer credit contracts. It will also continue to increase awareness of cartel conduct ahead of criminal sanctions from April this year; and
  • regulators will continue the increasing trend of investigating and enforcing corporate misconduct.

Read MinterEllisonRuddWatts' Litigation Forecast

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