What urgent contractual issues might arise?
Your business may have contractual liabilities to third parties, or claims against third parties in connection with the IT systems failure. Knowing the possible scope of your firm’s contractual liabilities, and any possible claims that your firm may have will help inform your decision-making.
In much the same way, the incident management team should consider the contractual relationships between any relevant group company and the persons responsible for the IT systems failure.
Some potential claims and liabilities may require urgent action to preserve legal rights, in particular notice requirements and administrative or other matters.
Even if litigation is unlikely, all rights should be preserved, as termination or other contractual rights may later be used as bargaining tools in any contractual renegotiations.
Any documents created and any communications entered into may be subject to disclosure in any future claims. For more information see Controlling document creation and securing privilege.
To assess the contractual issues you will need to establish the underlying facts and causes of the IT systems failure and identify the relevant contracts.
The contractual causes of action that may arise will vary from jurisdiction to jurisdiction. There may also be potential claims based upon rights set out in statute and, in common law jurisdictions, in tort and potential civil liability arising out of breach of data protection legislation.
