Legal Briefing

Not such a dark art

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Crisis Management | 02 May 2019

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How do you define a corporate crisis? According to Dan Tench, dispute resolution partner at CMS, this is where a business finds itself at the centre of a media storm in a way that overwhelms its management and its operations. ‘The defining characteristic of a crisis of this type is that the legal and operational strategic responses must be multi-faceted. A crisis may give rise to litigation, regulatory, employment and criminal issues as well as serious reputational issues. Prioritising between these facets, which can be in tension, and advancing in a coherent and sure-footed way is key.’

Ajay Malhotra, senior associate at Herbert Smith Freehills, adds that social media and the growth of fake news means that it is increasingly difficult to keep control of the external message when a crisis is unfolding. This presents legal risks as well as PR risks for the client. ‘An effective cybersecurity strategy is now a crucial part of any organisation’s crisis planning – both from a customer and a regulatory perspective. This just wasn’t as high on firms’ radars 10-15 years ago.’

Beyond legal considerations, specialist companies such as Black Dog Crisis Management help organisations to become more resilient across a broad spectrum. ‘We specialise in strategic crisis management, enabling senior decision makers in an organisation to create the environment in which they can respond to whatever is thrown at them,’ says Black Dog’s chief executive, Rob Doran. ‘That can be anything from reputational or PR risks, natural disasters, or the impacts of malicious attacks, such as cyber attacks or terrorism.’

Doran knows a thing or two about handling crises. Before setting up Black Dog in 2016, he was head of public order and civil contingencies (COBR) at the Home Office. He attended meetings helping to co-ordinate the UK government’s response to national crises. ‘What we do is give the organisation, no matter what its size or sector, the competence and confidence to understand what disruptions could mean for their business,’ he says. ‘We help them plan and implement procedures to manage crises, and make sure that everyone at board level knows what to do and how to adjust their leadership skills in emergencies.’

Many organisations spend time and money on managing risk in the business sense, according to Doran. ‘Project or implementation delays, legal, contractual risks – absolutely as they should. But they don’t then put enough effort or time into what could disrupt the business. The disaster end of things is where we provide support.’

Malhotra says that companies should have a practical, up-to-date, flexible and outcome-focused crisis plan in place at all times. All members of staff should understand their roles: this extends from how the executive directors should set up crisis sub-committees to how the company’s receptionists deal with dawn raids.

Doran describes it as his personal mission to get senior leaders to realise that it is worth putting the time and effort in and making sure that the entire organisation is able to respond.

‘Can those senior leaders look to a trusted group of people: in-house counsel, senior technical experts, operations managers? Can they trust them to know what to do, know how to take decisions and what the impact will be? Among many of our clients there is a general acceptance that things might go wrong. And until something goes wrong, the senior team doesn’t really know enough about what the risks are and what they can do about their impacts.’

So what makes Black Dog different? ‘We’ve got world-leading experience, from our team’s government exposure,’ says Doran. ‘We use a tried and tested approach which we adapt and work with our clients to put in place. We do this in a human way, in a plain English way.’

He says many organisations make out that crisis management is a dark art. But for him it has to be simple, developing meaningful, practical and easily adaptable changes to the way in which a business works to help improve its resilience. ‘We try our best to come across as open and understanding: help us understand your business, what’s important to you, the capabilities you already have. Most organisations already have some capabilities to deal with disruptions, they just might not realise it. And then we adapt our processes, our good practice and knowledge to a way which works for that organisation.’