Are UK courts ready for rise in M&A litigation?

Litigation arising out of M&A is on the increase, although nearly a quarter of in-house lawyers believe UK courts and judges are not equipped to deal with it

According to a survey commissioned by Herbert Smith, almost half of key individuals from 100 leading companies detect an increase in litigation in the UK and Continental Europe.
The survey found that 46 per cent believe that in the next five years, there will be a greater number of takeover transactions with a possibility of UK litigation. Half of respondents say they will consider invoking litigation or the threat of litigation in the next 12 months, and 65 per cent in the forthcoming three to five years.
Worryingly, 24 per cent believe UK courts are not equipped to handle M&A litigation because they do not have the necessary commercial understanding.
Poor due diligence, competition and regulatory issues, negligent advice, illegal defensive tactics, and fraudulent documentation or financial statements were cited as the main reasons for M&A litigation, according to the survey carried out by researchers Gabriel Ashworth of 100 people in key positions in 86 FTSE 250 companies, including 46 FTSE 100 companies.
One person surveyed said: “When we acquire a company, we never pay up front. We pay an initial amount then the balance, subject to satisfactory business [income], and it is going to get more stringent with current cases. There will be a spotlight on auditing.”
Of the respondents, 40 per cent believe M&A litigation in the UK is only a little less common than in the US, while 7 per cent believe it is a little more frequent in the UK.
When handling takeovers, 36 per cent use in-house or law firm litigators. One respondent said: “It's going to get increasingly dirty. You need to be prepared.” However, 28 per cent say the threat of litigation will not stop them from entering into an M&A or takeover transaction, against only 15 per cent who believe it will have a large effect.