Commercial Litigation Round-Up: December 2025
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 2 – Procedural updates (costs; service of proceedings; public access to documents)
Part 3 – Hot topics for businesses (generative AI in litigation)
1. Contract law
Our pick of the recent cases for commercial lawyers:
URE Energy Ltd v Notting Hill Genesis [2025] EWCA Civ 1407
The Court of Appeal upheld a decision that an energy supplier had not waived its contractual right to terminate a supply contract even though it continued to perform the contract for six months after the event giving rise to the termination right occurred. Case law has established that a party will not be held to have elected to waive its right to terminate a contract unless it knows of both the facts giving rise to the right to terminate and the right itself. In this case, the appellant argued that, as a matter of law, a party is deemed to know that the contract expressly contains a right to terminate, regardless of actual knowledge that the right to terminate is in the contract.
The Court of Appeal disagreed, even though the outcome “seems counter-intuitive, and indeed unmeritorious on the particular facts of this case”. The Court held that it is a principle of general application that a party cannot be held to have irrevocably elected to affirm a contract absent knowledge that it had a right to choose. That principle is not confined to rescission or to rights arising outside of the contract; it also applies to express contractual termination rights. There is no rule of law that, for the purposes of waiver by election, a party is deemed to know the terms of its contract. Whether it has the relevant knowledge is a question of fact.
However, despite this decision, commercial parties should not assume that a court will easily be persuaded that they were unaware of the rights set out in their contracts as a matter of fact. In particular, where a party is in receipt of legal advice, there is a rebuttable presumption that it was aware of its legal rights. As was the case here, to rebut that presumption may require the waiver of privilege over the relevant legal advice. See further details here.
King Crude Carriers SA and others v Ridgebury November LLC and others [2025] UKSC 39
Overturning the Court of Appeal, the Supreme Court held that there is no principle of English law that a condition in a contract, which would give rise to a debt being owed by a party if fulfilled, should be treated as fulfilled where that party wrongfully prevents the condition from being satisfied.
In this case, the buyer of a ship was required to pay a 10% deposit. It was a condition precedent to the deposit becoming due that an account would be opened by the escrow account holder. In breach of contract, the buyer failed to provide the documentation necessary to open the account, therefore the deposit could not be paid. The seller of the ship sought to claim the full amount of the deposit in debt. However, the Supreme Court’s decision makes clear that there is no principle of “deemed fulfilment” in English law (unlike that established in the Scottish law case of Mackay v Dick & Stevenson). If a condition is not fulfilled because of a party’s breach, the innocent party’s remedy is in damages only (and therefore it will need to prove its loss), unless the contract expressly states otherwise. See further details here.
Perelman v Kerr [2025] EWHC 2331 (Comm)
The Commercial Court ordered specific performance of a share purchase agreement relating to listed securities. Specific performance is rarely granted for contracts involving listed shares, or where the claimant is the seller, as damages are usually adequate. However, in this case, the court recognised that the shares (listed on the Guernsey stock exchange) were effectively illiquid; there was no active market, and past transactions were limited to company buybacks. Courts will look beyond formal listing status and assess whether shares are genuinely available in the market. Where they are not, and the contract is otherwise enforceable, specific performance may be granted. The judgment also serves as a reminder that, where parties have a preference in relation to payment and settlement mechanics, it is crucial to ensure that this is documented clearly in a written agreement. Where, as in this case, the contract is silent, disputes can arise, and the courts may imply a term requiring the parties to take reasonable steps to facilitate completion. See our full article here.
Kulkarni v Gwent [2025] EWCA Civ 1206
Can a repudiatory breach of contract be “capable of remedy”? In this judgment, the Court of Appeal explained the relationship between repudiatory breach at common law and remediability under the terms of a contract. The facts were complex and not especially relevant; but, for current purposes, the key point was that the Court of Appeal agreed with the first instance judge, deciding that material breaches of a shareholders’ agreement were “capable of remedy” and that the correct approach when considering whether remediation of a breach was possible was to take a forward-looking and practical rather than a technical approach.
The Court confirmed that a repudiatory breach cannot be cured at common law; the right to terminate that arises is not subject to any possible remediation of the breach. However, whether the same conduct was a “material or persistent breach” of the contract which was “capable of remedy” in accordance with the terms of the contract was a matter of construction; the common law position was not relevant to this assessment.
Parties must therefore make it clear in their drafting if they intend to exclude repudiatory breaches from remediation. The Court also gave some guidance on when a particular breach will be capable of remedy. Their starting point was that remedy meant “cure so that matters are put right for the future”, rather than obviating or nullifying the original breach. A failure to comply with an obligation on time or a past breach of a negative obligation would not necessarily, or even normally, result in irremediability. See our full article here.
2. Procedural updates
Case law — costs
Process & Industrial Developments Limited v The Federal Republic of Nigeria [UKSC] 2024 0117
The Supreme Court considered the proper approach to determining the appropriate currency for costs orders. It held that the general rule should be for costs awards to be in sterling or in the currency in which the solicitor had billed the client and in which the client had paid. The court could depart from this rule in certain circumstances, for example, where the court considered the parties' choice of currency to be abusive or inappropriate (e.g. if a party were to use a currency with which neither it nor its lawyers had a real connection, in order to speculate on making a profit).The Supreme Court noted that an award of costs is different from an award of damages as it is not intended to compensate for loss in the same way as awards of damages. It is a discretionary remedy and not an attempt to restore a party to the position it would have been in without the litigation. Applying this reasoning to the facts, the Supreme Court held that a costs award in Nigeria’s favour should be paid in sterling, not naira, even if Nigeria had funded the payment by converting naira into sterling. Nigeria was billed by its English solicitors in sterling and paid those invoices in sterling. See further details here.
Case law — service of proceedings
Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347
The Court of Appeal clarified the obligations of a defendant where a claim form is not served within the time required by the Civil Procedure Rules (CPR) and no extension of time has been granted. The Court held that, in such circumstances, a defendant is not subject to the court’s jurisdiction and is therefore under no obligation to file an acknowledgment of service and/or make an application to challenge jurisdiction under CPR 11.
This decision, together with other recent authorities, confirms that where there is no valid service of a claim form (either because service was late or because an invalid method was used), the claim cannot be pursued unless the defendant accepts the court's jurisdiction. The Court observed that the principles derived from the authorities were supported by “common sense” — it would be absurd to suggest that, where the claimant is in default by failing to serve the claim form in time, it can obtain a “get out of jail free card” by suggesting the proceedings can continue as if the invalid service had never happened because the defendant failed to acknowledge the invalid service and/or apply under CPR 11. See further details here.
Procedural rules
New Commercial Court pilot to make more court documents publicly available
From 1 January 2026, a new two-year pilot scheme will operate in the Commercial Court, London Circuit Commercial Court, and the Financial List, as set out in new Practice Direction 51ZH and the accompanying Guidance Note (the Pilot). The Pilot will require parties to litigation to make more court documents, such as witness statements and expert reports, publicly available. The key points to understand are as follows:
- The Pilot adds to, rather than amends or replaces, existing rules on the filing of, or access to, court documents.
- Under the Pilot, certain key court documents (including skeleton arguments, witness statements and expert reports) which have been used or referred to at a public hearing are deemed to become “Public Domain Documents” and must be made publicly available by the parties.
- Parties are required to file their Public Domain Documents on the public-facing section of CE-File within a specified time from when they were used at a hearing. Non-parties will be able to obtain a copy from CE-File upon payment of a small fee.
- A party, or a non-party named in a Public Domain Document, can apply to court for a Filing Modification Order to restrict access, redact a document prior to filing, or waive the filing requirement, for example where there are concerns about confidential information in a document.
By switching the onus onto parties to make certain documents publicly available, court documents will become much more readily accessible by non-parties. See here for our full article.
3. Hot topics for businesses
The use of generative artificial intelligence (Gen AI) in litigation
Gen AI technology is increasingly being used in civil court proceedings. Gen AI technology presents significant opportunities, but must be used responsibly. The judiciary and those in involved in litigation before the courts (including solicitors in both in-house and private practice roles) have an obligation to ensure they are using such technology appropriately and in accordance with their professional obligations. Guidance is available to assist with this. In October 2025, the Courts and Tribunals Judiciary published refreshed Guidance for Judicial Office Holders to assist judicial office holders in the use of AI. The guidance identifies some appropriate use cases for AI in litigation, such as summarising large bodies of information, and identifies the key risks. Indeed, we are beginning to see judges refer to their use of AI in decision making — see, for example, our earlier article discussing a judgment in which the judge explained how and why he had used AI in reaching his decision. This Guidance also considers the use of AI by court users and notes as follows:
“All legal representatives are responsible for the material they put before the court/tribunal and have a professional obligation to ensure it is accurate and appropriate. Provided AI is used responsibly, there is no reason why a legal representative ought to refer to its use, but this is dependent upon context. Until the legal profession becomes familiar with these new technologies, however, it may be necessary at times to remind individual lawyers of their obligations and confirm that they have independently verified the accuracy of any research or case citations that have been generated with the assistance of an AI chatbot.”
There have been several recent cases in which solicitors and barristers have been sanctioned after they put material containing fictitious AI-generated authorities before the court. In November 2025, the Bar Council published updated guidance on the use of generative AI software which warns of the risk of hallucinations and emphasises the need to verify AI-generated sources. The Law Society has also published guidance (Generative AI – the essentials) which identifies use cases of Gen AI and the risks that solicitors need to manage. Procedural rules which apply to Gen AI in litigation may be introduced in the future — the Civil Justice Council has established a working group to consider whether specific rules are needed in the CPR to govern the use of AI by legal representatives for the preparation of court documents.