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We have collated a brief round-up of important recent cases, procedural developments and hot topics for businesses to help in-house counsel stay up to date, particularly those who are involved in managing disputes. You can access more detailed briefings using the links. Please contact us if you would like further information on a topic.

Part 1 – Contract and tort law
Part 2 – Procedural updates (privilege; representative actions; ADR)
Part 3 – Hot topics for businesses (Arbitration Act 2025)

1. Contract and tort law 

Our pick of the recent cases for commercial lawyers:

EE Ltd v Virgin Mobile Telecoms Ltd [2025] EWCA Civ 70 

This case is a reminder to take care when drafting exclusions and limitations of liability. Previous judgments will be of little assistance to a court in interpreting phrases such as “loss of profit” or “anticipated profit” as each case will depend on the wording of the particular contract and the commercial context. In this case, EE alleged that, in breach of the exclusivity provision in a telecoms supply contract, Virgin had diverted customers to other mobile networks meaning that charges that would otherwise have been paid to EE never became due. Virgin argued that the claim was caught by an exclusion clause that prevented claims for "anticipated profits".  EE argued that its claim was a claim for diminution in price and not a claim for anticipated profits. 

By a majority, the Court of Appeal upheld the High Court’s decision that the claim should be characterised as a claim for loss of profits and was caught by the exclusion clause as the claim was essentially one for damages arising out of a breach of the exclusivity agreement and so the legal basis for the claim was lost profits. Previous cases do not establish an overarching principle of law that limits an exclusion of liability for loss of anticipated profits to losses outside the contract rather than sums payable if it were performed – those cases concerned different clauses used in a different commercial context. The wording of the clause supported Virgin’s construction of it, the clause formed part of a lengthy, sophisticated contract that allocated risk carefully between the parties, and it was not possible to construe the clause in the way EE contended without contradicting the express language of the clause. Further, the consequences of Virgin’s interpretation of the exclusion clause were commercially reasonable, and no less so than the alternative reading. Dissenting, Phillips J did not think it was so clear that an exclusion of “anticipated profits” applied to claims for loss of revenue – he considered that the term captured hoped for profits that would arise outside of the contract, not sums that were payable according to its terms. He did not think the parties would have intended that Virgin could breach the exclusivity agreement without being liable to EE for its resulting loss of revenue.

Limbu & Ors v Dyson Technology Ltd & Ors [2024] EWCA Civ 1564 

The Court of Appeal overturned the High Court’s decision and unanimously held that England was the appropriate forum to determine tort claims against Dyson related to alleged forced labour practices of a Malaysian supplier. The claimants were migrant workers who alleged that they were subject to forced labour and exploitative and abusive working and living conditions whilst working at Malaysian factories which manufactured components for the Dyson group. The claimants alleged that the Dyson companies owed them a duty of care, including because the companies were responsible for promulgating and implementing certain mandatory policies and standards concerning the working and living conditions of workers in the Dyson group’s supply chain, and for implementing these policies and standards.

This case forms part of a growing number of claims brought against UK companies for alleged human rights harms caused by third parties in the corporate group or value chain, such as subsidiaries or suppliers. It further highlights the risk of litigation in the English courts against UK domiciled companies in relation to liability arising out of their international supply chains. See further details here.

H&P Advisory Ltd v Barrick Gold (Holdings) Ltd [2025] EWHC 562 (Ch) 
This case, which arose out of the merger of two mining companies, concerned an alleged oral agreement for investment banking services. The judgment provides important insights into the evidentiary requirements for oral contract claims, including the difficulties that a claimant may face where there are deficiencies in the “electronic footprint” of key interactions on the documentary record. The judgment also contains detailed analysis of restitutionary principles in connection with the claimant’s alternative claim based on quantum meruit. This will be of considerable interest to those working in the investment banking industry and other professional services in terms of the approach to the agreement and quantification of advisory fees. Where a company does not intend to provide payment for services that are ostensibly being provided for free and has no intention of formally retaining that party, those intentions (or lack of) must be made clear to preclude a subsequent claim for restitutionary remuneration. Norton Rose Fulbright represented Barrick Gold (Holdings) Limited. For further details see our full article here.

2. Procedural updates

Case law – privilege

NMC Health PLC v Ernst & Young LLP (Re Disclosure) [2024] EWHC 2905 (Comm)

The High Court held that certain witness statements and records of interviews created by the administrators of the Claimant were protected by litigation privilege and so refused to order their disclosure. The Judge further held that other documents of an investigative nature were not relevant.

For litigation privilege to apply, a document must have been created for the dominant purpose of obtaining legal advice, information or evidence to be used in litigation which is in reasonable contemplation. The Judge took a pragmatic approach to the dominant purpose test and held that the administrators’ purpose when conducting the interviews was evidence-gathering for potential claims arising out of the discovery of a substantial fraud. The interviews were not part of the usual work of the administrators. The decision will be of interest to insolvency practitioners; although each case will depend on its facts, it seems the courts will take a realistic approach to the dominant purpose of interviews conducted by insolvency practitioners. See further details here.

Krishna Holdco Ltd v Gowrie Holdings Ltd [2025] EWHC 341 (Ch) 

This decision again illustrates how the courts will take a flexible approach when assessing the dominant purpose of a document in the context of a claim to litigation privilege, this time in the context of unfair prejudice proceedings.

The High Court held, taking “a realistic and, indeed, commercial view of the facts” that litigation privilege did apply to a valuation report prepared by PwC of two of the company’s trading subsidiaries in anticipation of their potential sale. The sale of the subsidiaries was motivated by the risk that the company’s banking facilities would be withdrawn; this risk arose out of a broader dispute between the company’s shareholders. The respondent argued that litigation privilege could not apply because the exploration of a sale of the subsidiary companies could not be conducting litigation, even if the motivation was anticipated litigation. The Court disagreed and considered the respondent’s approach to be too narrow. In determining the dominant purpose for creating the document, the court should look beyond the form of the transaction and ask why it was intended to happen, and relatedly why the valuation was carried out. The Court found that PWC was asked to prepare the valuation for the dominant purpose of responding to a strategic threat arising as part of the wider dispute which had already prompted two ongoing pieces of litigation. Had the hostilities not developed in that way, then the idea of a sale and thus of a valuation would not have arisen. 

Case law – representative actions and shareholder litigation

Wirral Council v Indivior PLC [2025] EWCA Civ 40 

In a decision that will be of interest to listed companies, the Court of Appeal upheld the High Court’s decision to strike out the first attempt to bring a group shareholder claim under s.90/s.90A Financial Services and Markets Act 2000 as a representative action under CPR19.8. The decision emphasises the importance of the courts’ case management powers and shows how the courts will not allow claimants and litigation funders to use the representative procedure to gain a tactical advantage in the litigation. 

CPR 19.8 provides that where more than one person has the “same interest” in a claim, one person may bring a claim as a representative on behalf of the group. In this case, the claimant structured its representative action as a ‘bifurcated’ claim i.e. it proposed to use the representative action to seek a declaration on the issues common to the represented class only, namely the defendant company’s knowledge of or recklessness regarding the publication of the misleading information. The proposal was for the ‘claimant issues’, including their reliance on the information, causation and loss, to be determined in the follow-on claims. Under this approach, the individual claimants would not be required to develop or particularise their case at the initial stage. The Court of Appeal held that the claims should be pursued in multi-party proceedings. The object of using the bifurcated representative procedure in this case was to avoid the court using its case management powers to order the claimants to advance some of the claimant-sided issues in parallel with the defendant-sided common issues. As a result, the claimants would not be required to identify which head of reliance they relied on (following the decision in Allianz Funds Multi-Strategy Trust v Barclays Plc [2024] EWHC 2710 discussed here), and the Court would be deprived of its powers to strike out speculative unmeritorious claims. See further details in our article here. 

Case law – compulsory ADR

DKH Retail Ltd & Ors v City Football Group Ltd [2024] EWHC 3231 (Ch)

This appears to be the first reported decision where the High Court has exercised its power to compel parties to undertake alternative dispute resolution (ADR) to resolve a substantive dispute.  This follows the Court of Appeal’s decision in Churchill and the recent changes to the Civil Procedure Rules, which confirm the power of the courts to order ADR. The Court ordered the parties to undertake mediation shortly before the trial of the matter, despite the defendant’s objections including on the grounds that there was no realistic prospect of settlement. There had been earlier unsuccessful attempts at settlement negotiations, although no mediation. This was an IP dispute under the Shorter Trials Scheme and the Judge noted that the dispute was “self-contained” and there was a range of commercial options available to the parties to resolve the dispute which went beyond what a court could order – these were factors that helped persuade the Judge that it was an appropriate case to order mediation. Such an order may not be appropriate in all cases, but we can expect to see more use of this power by the courts. The parties later notified the Court that they had settled their dispute. See further details here.

Procedural rules

Updates to the Civil Procedure Rules in April 2025

On 6 April 2025, The Civil Procedure (Amendment) Rules 2025 and the 179th Practice Direction Update made a range of changes to the Civil Procedure Rules (CPR). These include a rewrite of CPR 25 regarding interim remedies (such as proprietary and freezing injunctions, and orders for security for cost, although the conditions to be satisfied to obtain security for costs are largely unchanged) with the aim of streamlining and simplifying the rules on these topics. In addition, a suite of three revised model orders have been introduced to provide better consistency – a Model Search and Imaging Order, Model Order for Proprietary and Freezing Injunctions, and Model Order for Freezing Injunctions. Parties to litigation should ensure they are refer to the up-to-date rules and documents when applying for interim remedies. 

The Amendment Rules and 179th Practice Direction Update also introduce two new pilots for simplified costs budgeting. PD51ZG1 applies to Part 7 claims issued from 1 April 2025 in certain Business and Property Courts, and PD51ZG2 applies to Part 7 claims issued from 1 April 2025 in certain County Courts. These pilots have been introduced to give effect to the recommendations in the Civil Justice Council’s Costs Report for a more proportionate, tailored approach to costs management to suit different work types and venues where the litigation is conducted, rather than a single approach for all cases. The pilots introduce three new simplified costs forms: Precedent Z (simplified costs budget), Precedent RZ (simplified budget discussion report) and Precedent TZ (form for variation of a simplified costs budget) – see examples here. 

Claims with a value of less than £1 million will be subject to the simplified budget rules. For claims with a value of £1 million or more, the court will not manage the costs of the parties unless satisfied that the litigation can only be conducted justly and at proportionate cost if a costs management order is made; in such a case the court will decide which costs budgeting documents should be used.  All represented parties will be required to file and serve a simplified costs budget by no later than 21 days before the first case management conference.

3. Hot topics for businesses

Arbitration Act 2025 receives Royal Assent

On 24 February 2025, the Arbitration Act 2025 (the 2025 Act) received Royal Assent and will come into force on a date to be confirmed. The 2025 Act will insert several amendments into the Arbitration Act 1996 with the aim of modernising the Arbitration Act 1996 to enhance the status of England and Wales as a leading international forum for dispute resolution. The reforms will be of interest to commercial parties both in relation to the drafting of agreements and arbitral procedure. For example, the 2025 Act introduces a new default rule that, absent a choice of law clause, the law of the seat of the arbitration governs the arbitration agreement. Commercial entities which use English law governed contracts but wish to select another seat of arbitration should consider whether to include an express law governing the arbitration agreement. In relation to arbitral procedure, parties will have greater access to summary dismissal for claims with no real prospect of success. Our summary of the key reforms and their practical implications is available here.