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 law and other claims

Part 2 – Procedural updates (privilege; disclosure; security for costs; arbitration, enforcement)

Part 3 – Hot topics for businesses (litigation funding)

1. Contract law and other claims

Our pick of the recent cases for commercial lawyers:

Matiere SAS v ABM Precast Solutions Ltd [2025] EWHC 1434 (TCC)

This decision is a useful example of the approach the courts will take to the interpretation and enforcement of express obligations of good faith in commercial contracts. While the meaning of the phrase in any given contract will depend on the words used and the context, a duty of good faith generally requires parties to act honestly and not engage in conduct which is commercially unacceptable. Where the common purpose and aims of the parties can be objectively ascertained, conduct which undermines the fidelity of the bargain may also breach such an obligation. In this case, Matière and ABM submitted a joint bid for a sub-contract for part of the tunnelling works on the HS2 project: Matière would design the tunnels and ABM would manufacture them. The parties entered into a collaboration agreement in which they expressly agreed to “act in good faith toward the other.”The joint bid was rejected and Matière subsequently contracted directly with the main contractor. ABM alleged that Matière had breached its good faith obligations by undermining the bid. The Court held that Matière had breached these obligations, for example, because Matière had worked with the main contractor to explore alternative manufacturing options without ABM’s knowledge, either to reduce ABM’s scope of work or to replace it entirely. Such conduct was either dishonest or was of a type that would be regarded as commercially unacceptable to reasonable and honest people. Further, the common purpose and aim of the parties was apparent from the agreement (i.e. to submit a joint bid) but Matière had not kept to its bargain with ABM.

The decision also highlights that a claimant will be awarded damages for breach of a good faith obligation only if they can prove that the breach caused their loss, which is often not straightforward. Here, the Court found that the joint bid would have been rejected regardless of Matière’s breach due to concerns the main contractor had already identified relating to the units ABM would manufacture.

Saxon Woods Investments Ltd v Costa (Re Spring Media Investments Ltd) [2025] EWCA Civ 708

The Court of Appeal considered an appeal against a High Court decision that there had been unfair prejudice against a minority shareholder, but no breach of fiduciary duty by the defendant under section 172 Companies Act 2006 (duty of a director to act in the way they consider, in good faith, would be most likely to promote the success of the company). On the facts, there had been a failure to comply with the provisions of a shareholders’ agreement requiring the company and its shareholders to work together in good faith towards an exit by a specified date. The defendant had misled the board by concealing the fact that a sale was not being pursued.

The Court of Appeal found a clear breach of duty under section 172, and the judgment provides guidance on the duty on directors to promote the success of the company.In particular, the Court confirmed that the test for honesty, relevant for meeting the requirement of good faith, is both a subjective and objective test (assessed against the standards of ordinary decent people).A director's subjective belief that "the ends would justify the means" or that the members "wouldn't like it now if they knew, but they will thank me in the long run" has limits and cannot be relied upon to prevent a breach of duty if the objective test cannot also be met. The decision also highlights the interaction between directors' duties and shareholders' agreements. Obligations to pursue and secure an exit as contained in the shareholders’ agreement in this case are not uncommon, and the case serves as a warning to parties to consider carefully the drafting and implementation of exit provisions. Parties accepting such obligations should take them seriously and document steps taken to comply with them.

HNW Lending Ltd v Lawrence [2025] EWHC 908 (Ch)

This decision demonstrates how the Contracts (Rights of Third Parties) Act 1999 (the Act) and third-party rights can be interpreted widely. In this case, the High Court held that a non-party to a loan agreement could rely on an express term of the agreement which provided that it could enforce the loan against the borrower even though the agreement did not confer a benefit on the non-party. S.1(1)(a) of the Act states, “Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if - (a) the contract expressly provides that he may.” The Court noted that there is little case law on the scope of s.1(1)(a). The example given in a leading textbook on how the section may apply concerns a contract term where A promises to B to pay a sum of money to a third party, C, and the contract goes on to state that C is entitled to enforce the term containing this promise. In such an example, the term enforced by C consists of a term benefitting C, rather than an obligation owed to and benefiting one of the contracting parties. In contrast, in the current case, there was no promise made by the borrower to the lender to pay anything to, or otherwise benefit, the third party. The Court held that s.(1)(1)(a) of the Act is not limited to the enforcement by a third party of a term purporting to benefit the third party; it is enough that the contract expressly provides that the third party may enforce the term.

Parties to contracts should carefully consider at the drafting stage whether third parties should have enforcement rights and the extent of those rights. Express wording to the contrary should be included if such rights are not intended. See here for further details.

2. Procedural updates

Case law – privilege and the ‘Shareholder Rule’

Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd & Ors No 2 (Bermuda) [2025] UKPC 34

In an opinion given on 24 July 2025, the Privy Council abolished the Shareholder Rule in English law. The Shareholder Rule was a common law exception to the general rules of privilege which provided that a company could not assert legal privilege against its shareholders save in relation to documents created for litigation against that shareholder. Until now the Rule has prevented a company in litigation with its shareholders from withholding documents from inspection by those shareholders on the basis that the documents were subject to legal advice privilege.

The status of the Shareholder Rule had been a live issue in the English courts since a 2024 decision in which the High Court held that, contrary to the longstanding view, the Shareholder Rule should not exist in English law. An appeal to the English Court of Appeal was pending. The Privy Council directed that its decision in the case of Jardine, on appeal from the Bermudian Court of Appeal, should also be regarded as abolishing the Rule in England and Wales. As a result, in future shareholder disputes in the English courts shareholders will be unable to access privileged legal advice upon which company directors have based contentious decisions. This will offer comfort to directors and mean that legal advice can be more candid without the risk of disclosure. See further information here.

Case law – disclosure

The New Lottery Company Ltd & Anor v The Gambling Commission [2025] EWHC 1058 (TCC)

The High Court considered the claimants’ application for permission to rely on certain privileged documents that the defendant said it had disclosed in error. The claimants were permitted to rely on some of the documents where the Court found that the error would not have been obvious to a reasonable solicitor carrying out a proper disclosure review.

This decision is notable because the cases on inadvertent disclosure of privileged material by a party generally relate to a more traditional disclosure review. Here the Court had to apply the established principles to an extensive disclosure exercise with several tiers of review by legal personnel with varying levels of experience and knowledge of the case, and where the disclosure included a substantial number of electronic documents, multiple versions of the same document and repetitive email chains. The judgment offers practical guidance for parties involved in such extensive disclosure exercises as explained further here.

Case law – security for costs

The New Lottery Company Ltd & Anor v The Gambling Commission [2025] EWHC 1522 (TCC)

This High Court decision raised two interesting issues regarding the courts’ discretion to award security for costs. First, the Court held that it does not have jurisdiction to award security for costs in favour of an interested party joined to the proceedings; an applicant must be a defendant to the proceedings. Second, in relation to the ground for awarding security for costs in CPR 25 that the claimant would be unable to pay the defendant’s costs if ordered to do so, a court may consider the financial position of the claimant’s wider corporate group when assessing its ability to pay. In this case, the Court was satisfied that the claimant parent company could exercise control over and procure realisation of the substantial assets of a wholly owned subsidiary to satisfy any later adverse costs order made against it. Such arguments may assist claimant companies who are seeking to defeat an application to provide security. See further details here.

Case law – confidentiality in arbitration

A Corporation v Firm B & Anor (Rev1) [2025] EWHC 1092 (Comm)

In determining an application for interim injunctive relief, the English High Court clarified the scope of the implied duty of arbitral confidentiality under English law, an area that has long given rise to difficult practical issues for practitioners and parties alike. The decision provides useful guidance as to the parameters of the obligation, the types of information it covers and the extent to which the arbitration’s existence, documents or evidence produced within it and awards and other material can be disclosed. The Court confirmed, amongst other points, that parties can refer to the facts that led to an arbitration, the fact of the arbitration itself and the outcome (however only if there is a legitimate reason to do so and without details of the outcome) but cannot disseminate material prepared for or produced within the arbitration or confidential information within that material. Lawyers are entitled to draw upon experience, but not information, acquired from conducting arbitrations and cannot therefore pass on information gleaned from one arbitration for deployment in another. See here for further details.

Procedural rules

2019 Hague Judgments Convention comes into force in UK

On 1 July 2025, the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Convention) came into force in the UK. It provides for the enforcement of foreign judgments between contracting states, which include the EU Member States (excluding Denmark). The 2019 Hague Convention covers judgments obtained pursuant to non-exclusive jurisdiction clauses, including asymmetric clauses (exclusive jurisdiction clauses are already covered by the 2005 Hague Convention to which the UK is already a party). Accordingly, the 2019 Hague Convention should ensure the smooth enforcement of English judgments obtained under asymmetric jurisdiction clauses in EU Member States. Other states that have ratified the 2019 Hague Convention include Uruguay, Montenegro, Albania and Ukraine, and the list continues to expand. For further information see our earlier article here.

Arbitration Act 2025 comes into force

On 1 August 2025, the Arbitration Act 2025 (the 2025 Act) came into force. The 2025 Act inserts 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, and you can read a more detailed discussion of the 2025 Act in the latest issue of our International Arbitration Report here.

3. Hot topics for businesses

Litigation funding update

In June 2025, the Civil Justice Council published its eagerly awaited Final Report on litigation funding: Review of Litigation Funding - Final Report. The Executive Summary sets out the recommendations which include that the effect of the Supreme Court’s decision in PACCAR be reversed by legislation as soon as possible, which should be both retrospective and prospective in effect. In PACCAR, a majority of the Court ruled that litigation funding agreements (LFAs) that remunerate the litigation funder by reference to a proportion of the damages ultimately recovered constitute damages-based agreements (DBAs), with the effect that many LFAs were likely to be unenforceable as they would not satisfy additional stringent conditions required for DBAs.

The Report further recommends the introduction of light-touch statutory regulation of litigation funding through regulations issued by the Lord Chancellor rather than the Financial Conduct Authority. Differential regulation should apply to litigation funding provided to commercial parties and to that provided to consumer parties and parties engaged in collective proceedings, representative actions and group litigation. Regulation where commercial parties are concerned need be minimal. Greater, but still light-touch, regulation is, however needed where the funded party is a consumer or where funding is provided in collective proceedings, representative actions or group litigation. The new regulations should include provision for: case-specific capital adequacy requirements; codification of the requirement that litigation funders should not control funded litigation; conflict of interest provisions; the application of anti-money laundering requirements; and disclosure at the earliest opportunity of the fact of funding, the name of the funder, and the ultimate source of the funding. The terms of LFAs should not, generally, be subject to disclosure. The Working Party rejected the introduction of caps on litigation funders’ returns.

The new regulations should not apply to the funding of arbitration proceedings. The Working Party considered that it is for arbitral centres in England and Wales to determine if and, if so, how funding of arbitration is regulated (or not). They are best placed to determine this issue and, in doing so, ensure that arbitration and its funding remains competitive.