Disputes Magazine Issue 18: Reaching Beyond the Horizon - Q3’s Insights On Next Gen Disputes

REACHING

INTRODUCTION CONTENTS

“Success is not final, failure is not fatal: it is the courage to continue that counts.”

- Winston Churchill

We are thrilled to present Issue 18 of the Disputes magazine, our Next Gen edition. This edition dives into the themes of: Corporate Disputes, ESG, International Arbitration & Class Actions. Each theme offers an insight into the current trends and hot topics in the ever-changing nature of legal conflicts. As always, we extend our sincere thanks to our Corporate Partners, contributors, and readers for their support in bringing this issue to you.

Do keep an eye out as we continue to offer various engaging events in the Disputes Community.

The ThoughtLeaders4 Disputes Team

Paul Barford

Founder/ Managing Director

020 3398 8510

email Paul

Danushka De Alwis

Founder/Chief

Operating Officer

020 3580 5891

email Danushka

Amelia Gittins

Senior Strategic Partnership Executive 020 3059 9797

email Amelia

Chris Leese

Founder/Chief Commercial Officer 020 3398 8554

email Chris

Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545

email Maddi

CONTRIBUTORS

Meera Shah - Bond Solon

Hannah Gannage-Stewart - Bond Solon

Hannah Howlett - Burford

Capital

Ben Dinoit - Burford Capital

Farrah Sbaiti - Ogier

Raedean Simpson - Ogier

Marc Kish - Ogier

Oliver Payne - Ogier

Yulia Barnes - Barnes Law

Catriona Campbell - Clyde & Co

Caleb Sturm - BRG

Hannah Jackson - BRG

Chris Wenn - Burges Salmon

Mona Yue - CANDEY

Jesler van Houdt - CANDEY

Rosalind Meehan - Weil, Gotshal & Manges

Amy Waddington - Weil, Gotshal & Manges

Hayley Lund - Weil, Gotshal & Manges

Seth Kerschner - Weil, Gotshal & Manges

Matthew Morton - Weil, Gotshal & Manges

Faiza Alleg - CMAP

Rupert Wheeler - 23ES Chambers

Syedur Rahman - Rahman Ravelli

Faye Summers - Rahman Ravelli

Matilda Lloyd Williams - Byfield

Amr El Sawaf - Charles

Lyndon Limited

Vishnuviraj Dhir - Charles

Lyndon Limited

Kassia Pletscher - Baker Botts

John Hays - Ankura

Magdalena Osmeda - KKG

Legal

Airlie Goodman - Mayer Brown

EUROPEAN COLLECTIVE REDRESS CIRCLE 2025

We are delighted to have concluded the European Collective Redress Circle 2025 in Cascais, Portugal. Over the past day and a half, we welcomed leading practitioners for a unique programme that combined high-level discussions on collective redress with the opportunity to enjoy the Portuguese sunshine.

Our sincere thanks to this year’s Advisory Board –for their guidance and expertise in shaping the event.

We are also grateful to Greg Haber and Niamh Tattersall (Verita), and Paul de Servigny and Phoebe Dubois (IVO Capital) for their valued support and contributions.

And, thank you to all who joined us. The Circle’s success lies not only in bringing together Europe’s leading practitioners, but in the collaborative and engaged spirit of its participants.

We look forward to continuing the conversations – and to welcoming you again next year.

FINANCIAL SERVICES – THIRD ANNUAL CONFERENCE 2025

This morning at the Financial Services – Third Annual Conference 2025, held at One Whitehall Place, we heard from a distinguished group of practitioners and experts as we explored some of the most pressing issues in financial services litigation.

We began with a Keynote Address: Judiciary Attitudes to Financial Service Disputes, delivered by Mr Justice David Waksman, Judge of the

Commercial Court, who shared his perspective on the evolving approach of the judiciary to disputes in the sector.

Following the keynote, the day featured a series of in-depth sessions, exploring key developments in litigation, regulation, and ESG.

Thank you to all speakers and attendees for an engaging and insightful afternoon

Upcoming Events

Sovereign & States Litigation Summit USA

23 - 24 September 2025 | Kimpton Hotel Monaco Washington, D.C., USA

The Family Business Disputes Forum 2025

30 September 2025 | One Whitehall Place, London

International Arbitration & Enforcement Forum 2025

8 October 2025 | Carpenters' Hall London

UK Class Actions - The 5th Annual

14 - 15 October 2025 | Saddlers' Hall, London

The European ESG Litigation Forum

4 November 2025 | Hôtel Mövenpick, Amsterdam City Centre

Corporate Disputes 2025 - 5th Annual Forum

2 December 2025 I Central London

Sovereign & States Disputes and Enforcement Summit 2026

5-6 February 2026 | Plaisterers' Hall, London

The ESG Litigation Summit 2026 - The 4th Annual

12 March 2026 | One Great George Street

For Partnership enquiries please contact Ben Jobson on +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

The Witness Familiarisation Specialists

Witness evidence can make or break a case. Give your clients the support they need to mitigate the risk of a poor performance at court.

Bond Solon’s team of specialists are experts in understanding the specific requirements of a case. Over the last 30 years, our essential pre-hearing service has helped over 250,000 witnesses achieve a positive outcome at the hearing stage.

Working with our clients, we create bespoke training and interactive workshops that will build witness confidence - allowing them to perform at their very best, taking chance out of the equation.

What Do You See As The Most Important Thing About Your Job?

The content development function in a business is often “lumped” with Marketing or seen as ancillary to Marketing rather than a standalone function. However, whereas Marketing tends to be more product driven and sales led, the creation of informative and on-the-pulse content goes beyond just increasing brand awareness and engagement. A wellconsidered content strategy can position a business as a thought leader in their industry. This objective is at the forefront of my mind with every piece of content I write or commission.

What Motivates You Most About Your Work?

I am and have always been a very curious person with a relentless thirst for knowledge. A significant part of my role as Content Manager involves horizon-scanning across our diverse industries for news/ developments that are relevant to our clients. That is what drives me most about my job – adding value beyond our primary function as a training provider.

If A Film Was To Come Out About Your Life, Who Would Play You?

In the absence of an A-list doppelganger, I’d say my daughter, Blake, who is the split of me but better looking.

60 SECONDS WITH... MEERA SHAH CONTENT MANAGER BOND SOLON

What Is Your Favourite Part Of Your Working Day?

Much of my work can be quite solitary – whether it’s horizonscanning, writing or editing content or working on the content strategy. So aside from the morning dog walk (the best way to start the day), I’d say catching up with our Marketing Manager, Marie about a project we are working on together or discussing content ideas with one of our business unit directors.

What Songs Are Included On The Soundtrack To Your Life?

Anything by Enya – she was my mum’s favourite singer.

Who/What Inspired You To Be Who You Are Today ?

Without a doubt my mother. She passed away when I was a teenager, but she still inspires me almost twenty years later.

What Is A Quote That Best Describes You?

“You may encounter many defeats, but you must not be defeated. In fact, it may be necessary to encounter the defeats so you can know who you are, what you can rise from, how you can still come out of it.”- Maya Angelou.

What Would You Be Doing If You Weren’t In This Profession?

Funnily enough, I’m already doing it! I’m a bestselling author of psychological suspense novels –Mira V Shah is my pseudonym.

What Do You Like Most About Your Job?

Probably the autonomy. Our content development team consists of me and one freelance content editor. So aside from input from our MD, Marketing and our business unit directors, I have a lot of autonomy in developing the content strategy for the business. I’m a former lawyer (commercial litigation) so I also appreciate that all my years of education (and practice) haven’t been a complete waste!

What Is Your Favourite Takeaway Dish?

Roti King’s dal and roti – if you’re London based or visiting London, you must try it (they have restaurants in Euston and Battersea Power Station).

JUDGE HIGHLIGHTS THE DANGERS OF A NEW EXPERT “ANCHORING” THEIR OPINION TO THAT OF THE PREVIOUSLY INSTRUCTED EXPERT IN RECENT HIGH COURT CASE.

Authored by: Meera Shah (Content Manager) - Bond Solon

The recent High Court case of Skykomish Ltd v Gerald Eve LLP [2025] EWHC 1031 (Ch) has highlighted some very important considerations for experts who have replaced another expert in a case – namely that the “new” expert report must be fully independent.

Read on to explore the finer details of the case and the dangers of a new expert “anchoring” their opinion to that of the previously instructed expert.

The background of the case

The dispute concerned a valuation of a site that was, at the time, a derelict building. This property was to be demolished and replaced with student accommodation.

The Claimant provided mezzanine finance with a profit share, relying on a valuation of the property provided by the Defendant.

The development eventually sold for a considerably lower sum and the Claimant recovered nothing from its investment.

The Claimant brought proceedings against the Defendant, alleging that the valuation it had relied upon had been carried out negligently.

Deputy Judge, Richard Farnill commented that this was the “source of three difficulties”:

The Expert Witness Evidence

The Claimant’s valuation expert was instructed in less-than-ideal circumstances, in that she was the third expert hired from the same firm. The first instructed expert left the firm, and the second instructed expert had to withdraw because he subsequently realised that he lacked the requisite experience.

1. Timeframe.

As she was the third valuation expert appointed by the Claimant, her report was “obviously prepared in a short time frame” and therefore, “contained multiple errors”. Whilst some were immaterial, others were much more significant. For example, an error in her calculations resulted in her valuation being understated by £460,000. Although the Deputy

Judge gave the expert full credit for acknowledging the errors when they were pointed out to her in cross-examination, he made it clear that “candid admission upon discovery is not the way the system is supposed to work.” took the view that had she had more time, she would have presented a more accurate report.

2. Anchoring.

The expert was the third expert from the same firm. Whilst the Judge accepted that she was not doing so consciously, her evidence did not appear to be fully independent and was compromised by her defending of what he coined the “house view”. He provided two examples in his judgment of instances where instead of carrying out the work herself, the expert relied upon the data of the previous experts. In concluding that her evidence was influenced by the earlier work of her colleagues, he stated that “the power of random anchors has been demonstrated in some unsettling ways”.

3. Conduct.

The Judge criticised the expert for at times acting like an advocate for the Claimant’s case. In answering the questions that were put to her, she went out of her way to mention details that undermined the credibility of the Defendant even though they that no relevance to the opinion she had been instructed to provide. Had the expert been instructed in a less hurried manner she might have been more aware of her legal duties and responsibilities as an expert.

Summary

The Skykomish case presents key learnings for lawyers instructing experts from in-house expert groups but also those who have appointed an expert to replace a previously instructed expert in a case. The primary consideration, as for all experts, is that their opinion must be fully independent. But it is also crucial that they have enough time to review all the facts of the case before providing their opinion, to avoid any unnecessary and damaging inaccuracies.

In this case, the Claimants expert’s “anchoring” to the opinion of the previously instructed experts and the critical errors in her report had a detrimental effect – leading to the Judge having “reservations about significant parts of her evidence”.

PUBLIC INQUIRIES ARE ON THE RISE ARE YOUR CLIENTS PREPARED TO GIVE EVIDENCE?

If it feels as though the frequency of public inquiries has increased in recent years, that’s because it has, significantly.

There are currently 20 ongoing public enquiries in the UK, with two of those announced just this year. Among them are the already underway UK Covid-19 Inquiry, Post Office Horizon IT Inquiry, the Thirlwall Inquiry and the inquiry into the Nottingham attacks. These highprofile investigations call on witnesses, and experts in various fields, to piece together what happened and why, and how to prevent similar events occurring again in the future.

With the frequency of inquiries increasing, the likelihood that emergency responders, public bodies, and other witnesses will be called to give evidence is also greater. Therefore, it is critical that these parties are competent and confident to carry out their roles to best practice standards.

What Is A Public Inquiry?

A public inquiry is an official investigation conducted by an independent body to examine a particular event or set of events that gave rise to matters of public concern. During a public inquiry many individuals can be called to give evidence.

There are two types of public inquiry: statutory and non-statutory. Under the Inquiries Act 2005, a statutory inquiry can compel testimony from witnesses and demand the release of other forms of evidence.

The Ministry of Justice states the primary purpose of an inquiry to be “preventing recurrence” of whatever matter of public concern arose. How this is achieved varies from inquiry to inquiry, but it will likely involve making recommendations. Specific terms of reference will outline the remit of a public inquiry and will address the questions that the inquiry is expected to answer.

It is also possible for a non-statutory inquiry to be converted to a statutory inquiry, which is what happened with the Post Office Horizon IT Inquiry.

Authored by: Hannah Gannagé-Stewart (Journalist & Content Manager) - Bond Solon

Why Have Public Inquiries Increased In Recent Years?

Figures from the Institute for Government show that prior to June 1997, there were never more than three inquiries running at the same time. In stark contrast, the current 20 is the highest number ever to run concurrently.

Moreover, between 1990 and 2025, 88 public inquiries have been launched, compared with only 19 in the 30 years before 1990.

Alongside the increase in the number of inquiries, the Institute For Government has identified a long-term shift away from other forms of investigation such as royal commissions.

The arrival of the Inquiries Act 2005 goes some way to explaining changes. It streamlined the process for setting them up and gave ministers greater discretion to launch them, making it easier than it had been.

However, societal changes also play a big role. As the internet has evolved, spawning social media, alongside the emergence of 24/7 news, there is a

greater awareness of matters that affect the public, and with it a greater demand for accountability.

Various events have led to a growing distrust of public bodies, such as the government, police, and the NHS, fuelling yet greater demand for matters of public concern to be investigated and prevented from reoccurring. As such, this is likely to be a continuing trend.

In September 2024, The House of Lords Statutory Inquiries Committee made several recommendations related to following up and implementing the findings of public inquiries.

It was suggested that a joint committee of both Houses of Parliament should be established to publish inquiry reports and government responses in one place, and then to monitor the implementation of inquiry recommendations.

In February 2025 the government accepted many of the recommendations. As such, scrutiny is likely to continue beyond the inquiry itself, and those with a role to play in civil protection may find they are required to provide ongoing updates on the status of inquiry recommendations.

How Can Bond Solon Help Witnesses Prepare To Give Evidence In Inquiries?

For over 30 years, Bond Solon has provided witnesses with essential support and guidance prior to giving evidence in any type of legal forum, regulatory hearing, meeting or interview. Our band 1 ranked services (Chambers & Partners) are designed for both factual and expert witnesses, whether they have given evidence numerous times or are giving evidence for the first time.

Our large pool of lawyers – stemming from all practice areas and with extensive experience of preparing witnesses for testimony – have worked with over 250,000 witnesses to help build their confidence and enhance their ability to give evidence that will stand up under cross-examination. These include witnesses called to give evidence at many high-profile inquiries over the years, including but not limited to the Grenfell Tower Inquiry, the Manchester Arena Inquiry, the Edinburgh Tram Inquiry and the UK Covid-19 Inquiry. Bond Solon believes that no witness should be disadvantaged by not understanding the process or be taken by surprise when giving evidence. Our training sessions address these potential pitfalls head-on, equipping witnesses with the understanding, skills and confidence needed so that they can navigate the process successfully, helping mitigate risk and achieve the best possible outcome. To enhance our interactive and innovative training offering, we have developed a collection of virtual reality courtrooms, including an inquiry-specific virtual courtroom.

SOLAR FIELD CONSTRUCTION DISPUTES ARE HEATING UP

HOW UTILITIES AND CONTRACTORS CAN MANAGE COST OVERRUNS AND SCHEDULE DELAYS

As a surge in utility-scale solar projects converges with shifting trade policies and regulations, new threats to project budgets and completion dates arise when demand for solar energy is at an all-time high.

An unprecedented demand for solar energy infrastructure in the United States is on a collision course with trade and policy shifts, setting the stage for a surge in project risk that stakeholders must consider to mitigate exposure to cost overruns, delays, claims, and disputes.

electric-generating capacity in 2025. This is an increase of 30 percent and 94 percent, respectively, in new capacity compared to 48.6 GW in 2024 and 32.4 GW in 2023.

Figure 1: Locations of New Electric Generating Additions in United States

The continuing artificial intelligence (AI) boom and cryptocurrency computing needs have led to record-breaking demand for electricity consumption in 2025 and 2026, much of which will come from energy generated by solar facilities. According to the US Energy Information Administration (EIA), the US power grid is expected to add 63.0 gigawatts (GW) of new utility-scale

The industry expects an average of 43 GW will be added to the power grid in the United States each year through 2030, suggesting that the demand for solar energy is here to stay for the foreseeable future.

The EIA forecast that over 50 percent of new electricity generation capacity this year in the United States will come from solar fields. This projection includes a 30 percent increase in battery storage capacity that can temporarily store the energy generated from solar facilities.

At the same time, changing trade policies and tariffs threaten to disrupt supply chains and cause complications that may lead to time and cost impacts. Changes to anti-dumping and countervailing duties on critical materials from abroad may alter supply chains to ongoing projects. In addition, changing tax credits and tariffs may significantly affect the expected cost of larger solar projects. These factors may result in cost increases, time impacts, and red tape to solar projects, introducing an elevated likelihood of claims and litigation if left unaddressed.

Authored by: Caleb Sturm (Director) & Hannah Jackson (Associate) - BRG

Demand for solar power is expected to remain consistent in the coming years; however, it appears that energy providers and their construction contractors may need to find ways to work through some challenges to keep up with demand. Below we discuss factors that parties to the construction of a solar field may consider when contemplating strategies to manage and mitigate risks.

Known Drivers of Cost Overruns and Schedule Delays on Solar Projects

• Supply chain interruptions or complications: These could mount in light of new tariffs and regulations, inhibiting developers’ abilities to source materials abroad. This could be significant, as nearly all USmade solar panelsuse at least some components from overseas.

• Permitting problems: Solar developers may face opposition to or rejection of permits due to zoning ordinances, environmental concerns, historical preservation rules, or community pushback.

• Weather: Heavy rains, excessive snow, hurricanes, wildfires, and tornadoes all can cause intermittent and continued delays to the solar field construction process.

• Interconnection issues: A lack of standardization in interconnection procedures among new facilities and existing grids can make planning and coordination increasingly difficult.

• Sufficient workforce: Shortages of qualified working personnel can halt progress and result in delays, rework, cost overruns, and even litigation.

• Design modifications: Solar developers often must revise engineering designs, whether relating to compliance with new environmental regulations, differing site conditions, shifting weather conditions, or supply chain bottlenecks. Delays may follow if not managed closely.

• Unexpected environmental regulations: A South Carolina judge recently issued a stay in a lawsuit in which plaintiffs argue that a manufacturing plant poses environmental and safety risks to nearby properties and schools.

These factors can lead to delays and significant cost impacts that, if not addressed ahead of time or timely, can quickly result in claims and litigation related to pricing changes, breaches of contract, and noncompliance with environmental and zoning regulations.

Best Practices for Utilities and Construction Contractors to Mitigate Risk

Energy utilities and construction contractors alike would do well to consider the following best practices:

• Put the right team in place, including engineering designers and contractors that understand solar projects, reliable subcontractors that have access to quality labor, and material and equipment providers that have ample experience with utility-scale solar projects.

• Perform sufficient planning with stakeholders to account for unique site and project conditions that address site layout and logistics, supply chains, work sequencing, and safety protocols.

• Procure quality equipment and materials that may not be as susceptible to weather conditions and likely will perform better and for longer periods.

• Sufficiently prepare the site ahead of construction activities to ensure functioning and compliant stormwater management systems exist to prevent flooding and soggy ground conditions.

• Optimize project scheduling by developing a reasonable schedule of work, including subcontractors and material suppliers in the schedule development and update process; and by identifying alternative work sequences should unexpected conditions or events occur

• Maintain clear and open lines of communication among all parties, including regular communication between the general contractor and the utility regarding unexpected issues so that solutions are developed timely as a team.

• Be prepared to implement contingency plans if unexpected events occur. This may include procuring alternative labor sources if existing subcontractors encounter labor shortages; or having alternative equipment and material suppliers available in case of price fluctuations or supply chain complications.

• Maintain a complete understanding of environmental regulations and requirements regarding protected waterways and species, permitting, stormwater management and erosion and sediment controls, and disposal of hazardous materials.

• Begin the grid interconnection coordination process early Some utilities have undeveloped or inconsistent protocols for the connection of new solar facilities to the existing grid. Contractors and utilities alike would do well to begin the interconnection conversation early.

• Maintain sufficient quality control protocols to timely identify variances from required work standards and specifications. Addressing quality issues sooner may prevent cost overruns, delays, claims, and costly litigation.

• Mitigate weather delays through sufficient research of historical weather patterns and accounting for similar conditions in initial project timelines, maintaining flexibility in working days and shifts to mitigate weather impacts, and maintaining clear records of actual adverse weather conditions.

• Implement “lessons learned” after the completion of each project to capture project successes and challenges that can be referenced ahead of the next project. This allows teams to quickly leverage previous experience instead of reinventing the proverbial wheel for each project.

As demand for solar energy continues, utilities and contractors will have plenty of partnering opportunities in the coming years. But numerous complications now pose a threat to bringing these projects in on time and within budget. With the right planning and risk mitigation techniques, all parties can take steps to manage the time and cost impact of these risks.

What Do You See As The Most Important Thing About Your Job?

I genuinely love what I do. I’m motivated by doing work that’s interesting and meaningful, especially when it’s part of a team effort. I enjoy contributing to something that has real impact, and I find it satisfying when we deliver well together. It’s that combination of engaging work and good collaboration that keeps me going.

What Is Your Favourite Part Of Your Working Day?

Probably not surprising, but one of my favourite parts of the working day is when I get positive feedbackwhether it’s from clients, colleagues, or managers. It’s not about recognition for its own sake, but more about knowing that the work has landed well and made a difference. It’s a great motivator and a reminder that the effort and collaboration are paying off.

60 SECONDS WITH... MARZENA MEESON ASSOCIATE DIRECTOR

What Inspired You To Be Who You Are Today?

I’d say it’s a mix of people and experiences. I’ve been lucky to work with some brilliant colleagues and leaders who’ve set high standards and encouraged me to stretch myself. Moving to new places has also played a big part as it’s taught me to adapt and find my footing in unfamiliar situations. Most importantly, my family inspires me every daythey remind me of what matters and keep me grounded.

What Is A Quote That Best Describes You?

One that comes to mind is: “Life is a journey to be experienced, not a problem to be solved.” (Winnie the Pooh) I try to keep that in mind - staying open to new experiences and finding small joys in everyday life.

What Would You Be Doing If You Weren’t In This Profession?

I recently volunteered as a (temporary) tattoo artist at my sons’ school fairdefinitely not my calling! If I weren’t in my current profession, I’d probably be a dog walker. I love animals and walking, so it feels like the perfect combination - outdoors, active, and full of enthusiastic, happy clients.

What Is Your Favourite Takeaway Dish?

I enjoy spicy food and seafood so my favourite takeaway dish is probably a Thai green curry with prawns - full of flavour and just the right amount of spice.

FROM VERDICT TO VICTORY

ENFORCING FOREIGN JUDGMENTS IN DUBAI

The UAE has long been a hub for cross-border business and international investment, and that role has only deepened since Burford completed its first deal involving judgment enforcement in the region in 2018. Dubai in particular continues to be a key destination for global commerce and finance. Also, international conflicts, relaxation of UAE visa requirements and various other factors have led to an influx of ultra-high-net-worth individuals in recent years.

It is therefore unsurprising that judgment creditors are increasingly looking to recognize and enforce their foreign judgments there. From an international enforcement perspective, the Dubai courts have historically been considered unpredictable and opaque. However, based on our firsthand experience funding cases in the region, discussions with local firms and our analysis of local court data, this perception appears to be unwarranted — or at least outdated.

The UAE is a signatory to judicial cooperation treaties covering several Middle Eastern countries and it has bilateral arrangements in place with a number of other jurisdictions (including France, China, Kazakhstan and India) which govern the process for recognizing those judgments locally. Where no formal agreement exists, recognition and enforcement will be governed by the principle of reciprocity. We are aware of at least seven foreign judgments that have been recognized via this route in the last two years and where the lower court’s decision has been upheld by the Dubai Court of Appeal or Cassation Court (Dubai’s highest court). These include judgments from Canada, England, Switzerland, Russia, Singapore and the United States, with the Dubai courts also considering the recognition of judgments from jurisdictions such as Belarus, Palestine and the British Virgin Islands (BVI).

Requirements For Recognition Of A Foreign Judgment

For a foreign judgment to be recognizable in Dubai, it must meet the following criteria, codified in its civil procedure law and reinforced and endorsed in the case law:

1. UAE jurisdiction: The UAE courts must not have exclusive jurisdiction over the dispute.

2. Foreign court jurisdiction: The foreign court must have had (nonexclusive) jurisdiction to determine the dispute and the judgment must have been issued in accordance with all local laws and rules.

3. Finality and enforceability: The judgment must be res judicata in the jurisdiction which rendered it (and a certificate to that effect will typically be required).

Authored by: Hannah Howlett (Senior Vice President) & Ben Dinolt (Senior Vice President) - Burford Capital

4. Proper service and representation: The defendant must have been properly served and have had the opportunity to be represented.

5. No conflict: The judgment must not conflict with a judgment or order previously issued by a UAE court and must not violate UAE public policy.

Lessons Learned From Unsuccessful Attempts At Recognition

While the Dubai courts have recognized foreign judgments with a range of underlying causes of action, they do not appear willing to enforce foreign declaratory judgments or foreign bankruptcy orders. The Dubai Court of Appeal has recently refused to recognize:

Recent Success Stories

The Dubai courts have shown a willingness to enforce a range of foreign judgments, from complex commercial disputes to personal matters. For example, the Dubai Cassation Court recently upheld the recognition of a summary judgment from Ontario, Canada, based in part on a restitution order from a New York securities fraud case. This ruling was significant from an international enforcement perspective in particular because the Dubai court agreed to enforce a judgment (the Ontario judgment) that was itself based on an earlier judgment (the New York order) because it still met all the criteria for enforcement of a foreign judgment, and there was clear participation from both parties. This approach to recognition goes further than we have seen a court willing to go in several other jurisdictions.

The Dubai Cassation Court has also upheld the recognition of an English family court judgment for the division of assets, which was consented to by both parties. The judgment debtor sought to resist recognition both on public policy grounds, by arguing that the couple had not been formally divorced under the laws of the country where they were married (not England) or under Islamic law, and also by contending that the Dubai courts had exclusive jurisdiction over the Dubai property covered by the division of assets order. The court held that there were no public policy issues because the defendant had consented to the English order and the Dubai courts did not have exclusive jurisdiction, and that the English judgment was not a new ownership claim, but rather the enforcement of an existing obligation.

• An application by a BVI courtappointed liquidator to liquidate a BVI company in Dubai, on the basis the BVI order was declaratory in nature.

• An application by a Russian Trustee in Bankruptcy to enforce a Russian bankruptcy order that included language permitting a worldwide search for assets and enforcement up to the value of the debt ($31M), on the basis that a foreign bankruptcy proceeding cannot be enforced in the same way as a foreign judgment and requires a treaty or legislative provision.

• A judgment debtor’s successful resistance to enforcement of a Polish judgment, on the basis that he was not properly served with the judgment or given sufficient opportunity to be represented (at the time of the original Polish proceedings, the claimant had been unable to locate the defendant, so the Polish court had appointed a judicial guardian to represent him in the proceedings. The Dubai court found that the Polish judgment did not expressly confirm that the defendant had been represented in accordance with Polish procedural law or that the requirements for service of process had been met, as seen in condition 4 above).

It is clear the Dubai courts also expect and will insist on strict and explicit adherence to the five criteria outlined above.

Legal

Finance Can Assist With Asset Recovery

Legal finance providers like Burford have a proven track record in successfully funding and managing multi-jurisdictional enforcement campaigns involving sophisticated asset tracing and recovery strategies in Dubai, the broader UAE and around the world. This includes funding the successful recognition and enforcement of foreign decisions in the UAE and vice versa. For example, when Cessna Finance faced complex and risky enforcement proceedings due to a UAE-based counterparty’s default on aircraft leasing agreements, Burford was able to create a hybrid “money now, money later” assignment deal that gave Cessna immediate capital while transferring the cost, time and risk of the enforcement campaign to Burford. Burford’s global recovery and enforcement team routinely assists clients whose commercial litigation and arbitration matters require considerable resources and specialized legal expertise.

Burford offers bespoke legal finance solutions to support lawyers and their clients, including traditional litigation funding of fees and expenses as they are incurred and more tailored “money now, money later” assignment deals (such as in the Cessna case), where a client receives immediate capital while Burford assumes all enforcement responsibilities, including appointing specialized legal teams, conducting detailed asset tracing and managing international enforcement efforts.

DETERMINING FAIR INTEREST RATES WITHOUT EXPERT EVIDENCE CAYMAN ISLANDS COURT RULING IN RE XINGXUAN TECHNOLOGY LTD

In a landmark decision, the Grand Court of the Cayman Islands has set a new precedent by determining a fair interest rate of 6.39% in the long running case of Re Xingxuan Technology Ltd, without relying on expert evidence. The Court also awarded indemnity costs to the dissenter.

In its written reasoning for the judgment handed down on 25 March 2025, the Court confirmed that in appropriate cases, the fair rate of interest can be determined without expert testimony in section 238 fair value proceedings.

Managing associate Farrah Sbaiti and associate Raedean Simpson in Ogier’s Dispute Resolution team acted for the dissenter.

Background

Following an unopposed trial on 17 July 2024 of the section 238 fair value petition in Xingxuan Technology Ltd (Xingxuan), the Court handed down its fair value judgment on 9 September 2024.

The judgment determined that the fair value of the dissenter’s shares was US$318.69 million

– approximately 659% higher than the merger consideration offered by Xingxuan.

Once the Court indicated that it would hear counsel in relation to interest, costs and any other consequential matters arising from the fair value judgment, the dissenter asked the Court to consider its application for interest and costs on the papers and without an oral hearing. The Court provisionally agreed to this request but reserved the right to require expert and/or factual evidence to be filed, and/or an oral hearing, should it be considered appropriate.

After the written submissions and supporting materials were filed, the Court required the dissenter to file evidence formally confirming:

1. the basis for the proposed company borrowing rate

2. its belief in the reasonableness of the prudential investor rate methodology adopted and the accuracy of the final rate relied on in the written submissions filed

How Did The Court Determine A Rate Of Fair Interest In Xingxuan Technology Ltd?

1. Determining a fair rate of interest without expert evidence

The Court considered the English courts’ approach to the calculation of statutory pre-judgment interest on compensation for actionable loss, as summarised by Justice Segal in the most recent section 238 interest decision, iKang.

The Court noted that pre-judgment interest is routinely assessed without expert evidence. It also stated that as a commercially rational remedy, interest in section 238 cases should be determined using a process which is appropriate, proportionate and cost-effective, in accordance with the overriding objective.

Authored by: Farrah Sbaiti (Managing Associate) & Raedean Simpson (Associate) & Marc Kish (Partner) - Ogier Cayman Islands & Oliver Payne (Partner) - Ogier Hong Kong

The Court also noted “higher level” support for the existence of a positive duty to make the substantive law effect in an efficient manner, from the recent Privy Council decision in Re Changyou. com Limited (Changyou). The decision confirmed that section 238 must be read in a way that is compatible with, and which gives effect to, section 15 of the Cayman Islands Constitution, providing peaceful enjoyment of property and prompt compensation in the event of interference (such as compulsory acquisition).

The Court determined that it would not be a commercially-rational remedy if a dissenter had to incur disproportionate costs to recover an interest award.

Justice Kawaley, the assigned judge to the proceedings, considered that both economy and proportionality have increased significance in the context of a case such as Xingxuan, which he referred to as “section 238-lite” –particularly in circumstances where there was uncertainty over recoverability of the fair value and interest awarded.

The Court concluded that there was no invariable mandatory legal requirement that the entitlement to an award of interest on compensation awarded by a court must be supported by expert evidence in every case. Having concluded that interest can be determined without expert evidence in appropriate cases, the Court then moved on to considering whether the fair rate could be determined justly without expert evidence in this particular case.

2. The fair rate of interest applied

The written reasons helpfully summarise the key cases considered to develop the application of the “mid-point approach” for determining the fair rate of interest, and the underlying methodologies for determining the company borrowing rate and the prudent investor rate. The Court accepted the dissenter’s central submission that the core principles governing the approach to assessing the fair rate of interest under section 238 are clearly and firmly established.

The Court accepted Xingxuan’s factual evidence that the appropriate company borrowing rate was 4.35%, based on the interest rate applicable to an intercompany loan, the terms of which were documented in the company’s disclosure

in the proceedings. The Court concluded it did not need expert evidence to arrive at its decision on the company borrowing rate.

In relation to the prudent investor rate, the Court provided several reasons for its decision to accept the dissenter’s proposal to apply the iKang methodology (under the objective standard of an ordinary prudent investor) without expert evidence being adduced. In particular, the fact that the approach was substantially based on expert evidence adduced by Xingxuan in iKang made the risk of serious prejudice to the company in this case unlikely and the dissenter’s inability to enforce was to be balanced against any risk of unfairness to the company of proceeding without expert evidence.

The Court applied the same asset allocation of 45% equities, 45% bonds and 10% cash, and the same asset class indices (ETFs) for the assumed returns, as applied in iKang under the objective prudent investor standard. It was noted that the entire interest period in iKang fell within the interest period (representing approximately 70%) in Xingxuan. The Court determined that the prudent investor rate at 8.43% which was considered to be broadly consistent with the primary prudent investor rate in iKang (taking into account the longer interest period in Xingxuan and market movements during the extended period). Consistent with the previous authorities, the Court held the fair rate of interest was 6.39% which was the mid-point between the company borrowing rate of 4.35 % and the prudent investor rate of 8.43%.

3. The interest period in Xingxuan

As Xingxuan had not made an interim payment to the dissenter, the relevant interest period for the purposes of the fair rate of interest calculation was 29 September 2017 (the date of Xingxuan’s fair value offer) until 5 February 2025 (the date of the Court’s decision on interest).

In considering the dissenter’s application for costs to be taxed on the indemnity basis, Justice Kawaley examined Xingxuan’s conduct – particularly its absence from the litigation stage – and the actions and omissions leading to the company being debarred from contesting the proceedings.

Xingxuan’s failure to engage new attorneys and its breach of its obligation to pay the interim payment ordered by the Court amounted to improper and/or unreasonable conduct which, despite occurring (or manifesting itself) at a late stage in the proceedings, infected the proceedings as a whole and justified an award of costs to be taxed on the indemnity basis.

Conclusion

The circumstances in Xingxuan, which include a company in breach of a court order for an interim payment and subsequently debarred from participating in the proceedings, are plainly unusual. In most section 238 cases all parties will take an active role in what are usually heavily contested proceedings. Therefore, it is often impossible or impractical for expert evidence on interest to be dispensed with. However, the decision in Xingxuan reinforces the Court’s willingness to approach applications with pragmatism, proportionality and efficiency. In appropriate circumstances, the Court may be receptive to determining applications on the papers and without an oral hearing, and without expert evidence being adduced, in order to best serve the interests of justice and facilitate a just outcome.

4. Costs awarded to the dissenter

The Court had no difficulty in concluding that the dissenter was entitled to its costs of the proceedings, in circumstances where it had obtained a fair value award far in excess of what Xingxuan had offered.

The Court’s reference to the recent Changyou decision also indicates that the Court is likely to deprecate poor conduct and delay in section 238 cases to an even greater degree and make appropriate orders to uphold and give effect to what is now an accepted constitutional right to prompt payment of adequate compensation where shares are compulsorily acquired under the Cayman Companies Act. The Court has helpfully indicated that adjustments to the relevant statutory provisions and/or the Court Rules may well be required to prevent the integrity of the statutory scheme (which is now enshrined as a constitutional right) being undermined and/or abused in future cases. This would no doubt be a welcomed development for dissenting shareholders concerned about a company’s ability or willingness to meet a fair value and interest award.

“Extremely

THE END OF THE SHAREHOLDER RULE?

AABAR HOLDINGS S. À R.L. V GLENCORE PLC AND OTHERS

Authored by: Yulia Barnes (Managing Partner) - Barnes Law

In a ruling set to change the practice of shareholder litigation in the UK, the Supreme Court on 7 February 2025 rejected Aabar Holdings’ application to appeal directly, following a High Court decision that excluded the application of the ‘Shareholder Rule’ in English law. The appeal is now listed for hearing by the Court of Appeal on 26 January 2026. This article considers the impacts of the ruling on legal privilege, investor claims, and investigations, against the broader legal challenges facing Glencore.

Aabar Holdings S.à.r.l. (‘Aabar’), a Luxembourg entity owned by the Government of Abu Dhabi, brought proceedings against Glencore plc and three former directors. Aabar claimed to be the successor to Commodities S.à.r.l., the beneficial owner of Glencore shares between 2011 and 2020.

In 2022, following a UK Serious Fraud Office (SFO) investigation, Glencore admitted to multiple bribery offenses and was fined a record £281 million. Aabar and other institutional investors claimed they had been misled by Glencore’s public filings and suffered losses. Aabar’s claims were brought under sections 90 and 90A of the Financial Services and Markets Act

2000 (FSMA), and included claims in deceit and negligent misstatement.

Before addressing these allegations, the High Court was asked to determine whether Glencore could assert legal professional privilege against a shareholder, based on the historic ‘shareholder rule’.

The shareholder rule, derived from 19th-century law, once allowed shareholders to inspect company documents, including privileged ones. Aabar argued this rule remained valid, but Mr Justice Picken held that it had not survived the evolution of corporate law following Salomon v A Salomon & Co Ltd [1897]. He confirmed that shareholders do not have a proprietary interest in company property sufficient to override privilege.

government launched an inquiry into the refinery’s insolvency, drawing attention to Glencore’s role in the domestic energy market.

The High Court granted Aabar permission to appeal with a leapfrog certificate, but in February 2025, the Supreme Court declined to hear the appeal. The case will now be heard by the Court of Appeal in January 2026. The central issues are whether the shareholder rule still exists in English law, and whether a company can assert privilege against its shareholders.

The case could redefine investor litigation in the UK. The reaffirmation of legal privilege strengthens the ability of companies to obtain legal advice without fear of disclosure to shareholders. However, investors lose a potential avenue for accessing documents critical to proving misrepresentation or misconduct.

The judge also dismissed the applicability of joint interest privilege. Aabar argued it shared a legal interest in Glencore’s legal advice due to its shareholding, but the Court ruled that neither shareholding nor aligned litigation interests established joint privilege. Privilege, it reiterated, belongs to the company.

Concurrently, Glencore was under scrutiny globally. It had paid over $1.5 billion in fines to authorities in the UK, US, and Brazil for bribery and market manipulation. These scandals raised questions over Glencore’s governance and transparency, leading to further investor claims.

In 2025, Glencore was again in the spotlight following the collapse of the Lindsey Oil Refinery, with which it had a supply and offtake agreement. The UK

Parliament may eventually need to legislate. While FSMA provides investor remedies, it does not override privilege. If upheld, the ruling may prompt calls for reform to allow limited disclosure rights in cases involving regulatory breaches.

By contrast to some US jurisdictions where shareholders can inspect internal documents under certain conditions, English law prioritises the sanctity of privilege. Only statutory intervention is likely to shift this balance.

Practically, the ruling reinforces that privilege belongs to the company, regardless of shareholder interest. It sets boundaries on joint interest privilege and reiterates the Salomon principle of corporate separateness. Claimants must now rely on standard disclosure or inference rather than attempting to pierce privilege.

If the ruling is upheld, it may represent a significant turning point in the balance between corporate confidentiality and shareholder transparency in English company law.

MILIEUDEFENSIE ET AL V SHELL IMPLICATIONS FOR FUTURE CORPORATE CLIMATE LITIGATION IN EUROPE

by: Catríona Campbell (Associate) - Clyde & Co

Introduction

‘Climate litigation’ refers to cases brought before judicial bodies which feature climate change law, policy or science as a material issue in the case. Following almost universal ratification of the 2015 Paris Agreement – under which States agreed to take action to mitigate greenhouse gases (GHGs) and limit global warming to under 2 degrees, and well below 1.5 degrees – litigation has emerged as one of the main tools used by NGOs and other activists to hold accountable those seen as responsible for dangerous climate change.

Oil Majors, seen as most closely associated with contributing to the climate crisis, are often targeted in these claims, which generally seek damages for loss caused by corporate harm to the environment. Despite the fact more than 250 strategic climate cases have been filed against companies across the globe since 2015,1 uncertainties remain regarding the extent of corporate responsibility on climate change.

As part of the increasingly large body of corporate climate litigation, the Hague Court of Appeal issued a muchanticipated judgment in November last year which helped to clarify the obligations of private actors, particularly in Europe. The decision concerned Shell’s appeal of a landmark 2021 ruling which had ordered Shell to reduce its CO2 emissions. At the Court of Appeal, the 2021 decision was overturned.

find that Shell was required to reduce its CO2 emissions by 45% by 2030 compared to 2010 levels. These arguments were based on those used successfully in a seminal case which found that the Dutch government had an obligation under human rights law to reduce GHGs by at least 25% by the end of 2020.3

Although based on tort law, Milieudefensie is unusual in comparison to other similar climate litigation, as the claimants are not seeking damages. Instead, they seek to force a change in direction from the oil company, in order to “stop causing serious harm to the climate”.4

Background

The case was brought in 2019 in the Hague District Court by the NGO Milieudefensie, six other NGOs, and over 17,000 Dutch citizens.2 The Claimants requested the Court to

In 2021, the District Court found that, under Dutch tort law (based on a standard of care incorporating international human rights law and standards), Shell was required to reduce its CO2 emissions by 45% by 2030, in line with the Claimants’ request; this order was immediately effective. The required reduction applied to emissions produced by: Shell’s own operations (Scope 1 emissions); the operations of its suppliers (Scope 2 emissions) and; its customers (Scope 3 emissions).

1 Grantham Research Institute, ‘Global trends in climate change litigation: 2025 snapshot’, p.18, available at: https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2025/06/ Global-Trends-in-Climate-Change-Litigation-2025-Snapshot.pdf

2 Milieudefensie et al v Shell, ECLI:NL:RBDHA:2021:5339

3 Urgenda Foundation v Netherlands, ECLI:NL:HR:2019:2007

4 Milieudefensie, ‘Frequently Asked Questions about the climate lawsuit against Shell’, available at: https://en.milieudefensie.nl/climate-case-shell/frequently-asked-questions-aboutthe-climate-lawsuit-against-shell

Authored

This marked the first time a corporation was legally recognised under international law as having a duty of care to protect citizens from dangerous climate change by shaping its policies and curbing GHG emissions. It was also the first ruling to mandate emission reductions across a company’s entire value chain, and the first to hold a corporation accountable to the goals of the 2015 Paris Agreement.

Although a Dutch decision applying Dutch law, the 2021 judgment had a major effect on climate litigation, particularly in Europe, and was oft-cited by applicants in various jurisdictions. For example, claimants relied heavily on the decision in an ongoing claim in Italy against the major multinational energy company ENI (more on that later).

However, on 12 November 2024, the Court of Appeal overturned the landmark 2021 decision, dismissing Milieudefensie’s claims against Shell, and ordering the NGO to pay Shell’s legal costs.5 The Court of Appeal ruled that, whilst Shell has a legal duty to “counter dangerous climate change” and reduce emissions, specific reduction requirements like the 45% target, particularly in relation to Scope 3, are not legally enforceable. Although Shell has a legal obligation to reduce its emissions, the rate of emissions reduction cannot be specified or imposed by a Court. The Court seemed to accept that Shell has legal obligations to reduce Scope 1 and 2 emissions, but found that Shell was already on track to reduce these by more than 45%.

The decision ultimately turned on scientific and economic arguments: first (the scientific argument) that it was inappropriate to impose a sectoragnostic 45% emission reduction target on Shell, a company with a very specific emissions profile and business model; second (the economic argument), that ordering Shell to reduce Scope 3 emissions would not, in practice, reduce the supply of global oil and gas since another supplier would simply substitute Shell in the market.

Hollow Victory For Shell?

The Court of Appeal’s decision was hailed as a success for Shell, and beneficial to other Oil Majors – Shell said it was “pleased with the court’s decision”, which was “the right one for the global energy transition”. 6 Yet Milieudefensie described it as “big step forward for the climate”. Such competing claims are a common occurrence in climate litigation; however a case is decided, it tends to be described as a victory for the side which the commentator supports. Which party’s statement is more accurate? There is no doubt Shell won this particular case, but is it really a victory for the Oil Major in the long term? There are several of the case which point to a different conclusion:

• 1.5 degrees target: whilst the target under the Paris Agreement to limit global warming to 1.5 degrees is non-binding, and only applicable to States, it has gained such normative strength that the Court of Appeal considered it relevant to Shell’s obligations. EU companies, and some other companies doing business in the EU, will also soon be required to publish a transition plan consistent with the 1.5 degree target under the Corporate Sustainability Due Diligence Directive.7 This creates risks for Shell and other Oil Majors that they are breaching their duty of care if emitting in a way which goes beyond this target, which could be argued in future litigation.

• Reduction targets: Milieudefensie requested that Shell be obligated to reduce its Scope 1, 2 and 3 emissions by 45%. This was based on general scientific consensus – particularly from reports of the Intergovernmental Panel on Climate Change (IPCC) – that global emissions must reduce by 45% to limit global warming to 1.5 degrees. The Court said this was not specific enough to Shell so the Court did not have sufficient certainty to require Shell (or the oil and gas industry in general) to meet this target. However, the ability of scientists to attribute emissions to specific polluters is improving all the time. Scientific consensus will likely coalesce around a specific target for the oil and gas industry based on the harm caused by its emissions, and in the future it may be the case that the science develops sufficiently to show that Shell should actually meet a higher reduction target than 45%, based on its emissions. This could then be confirmed in a future case.

• Corporate human rights obligations: the Court of Appeal confirmed that major emitters like Shell are required to respect human rights – a major finding, given that human rights obligations are generally considered to apply only to States. Whilst particular to Dutch law, it may be an important catalyst for future litigation seeking to hold Oil Majors accountable under human rights law and standards.

• Future oil and gas projects: in obiter comments, the Court suggested that new oil and gas projects may be incompatible with Shell’s obligations to reduce emissions. This means that Shell could be targeted in litigation seeking to prevent new projects on this basis.

As such, the decision opens new pathways for, and arguments in, litigation against Shell and other Oil Majors (and potentially other corporations which contribute substantial amounts of GHGs to the atmosphere). Because of this, it is seen by many commentators as a hollow victory for Shell, which may come back to bite in future.

5 ECLI:NL:GHDHA:2024:2100

6 Shell,’ Shell welcomes Dutch Court of Appeal ruling’, available at: https://www.shell.com/news-and-insights/newsroom/news-and-media-releases/2024/shell-welcomes-dutch-courtof-appeal-ruling.html

7 Article 22 of the Corporate Sustainability Due Diligence Directive

What Next?

Regarding this specific case, in February this year Milieudefensie stated that it was filing an appeal to the Dutch Supreme Court, arguing that it has a “strong case against Shell”.8 The Supreme Court is being asked to reinstate the District Court’s finding that Shell has a specific reduction obligation, stating that only a specific target will make sure Shell takes “real action”.9 This carries the possibility that the highest appeals court will overturn some of the findings made at the Court of Appeal, so it will be very interesting to see what happens on appeal. Shell has already moved its headquarters out of the Netherlands, after the 2021 decision (although it gave other reasons for doing so); this regulatory arbitrage is a risk that applicants take when filing climate cases.

More broadly, NGOs pursuing climate litigation against corporations are unlikely to be put off by the decision in the Dutch Court of Appeal. Milieudefensie has already filed a different claim against Shell which relies on the Court of Appeal’s comments. In seeking a court order to stop Shell from investing in new oil and gas fields, Milieudefensie stated “The Court of Appeal has provided

clear indications that Shell’s currently planned investments in new oil and gas fields are at odds with its legal obligation to take into account the negative consequences of a further expansion of fossil fuel supply”.10 In the aforementioned case against ENI in Italy,11 which follows similar arguments as Milieudefensie’s case against Shell – that EU law and Italian law impose a duty of environmental protection on corporates – the Supreme Court of Cassation recognised the procedural admissibility of climate change cases before civil courts in a seminal decision last month.12 In a case against German utility giant RWE decided earlier this year (which is explored in more detail elsewhere in this edition), the Court, although it dismissed the claim, found that corporate liability for climate-related harm is possible in principle.13

There is no doubt we are going to see more claims against Oil Majors (and others who facilitate them), likely employing successful arguments used in Milieudefensie. Courts seem increasingly open to finding that corporates have obligations in light of dangerous climate change; climate litigation against them is certainly not going away, particularly in Europe.

8 Milieudefensie, ‘Why we’re taking our Shell climate case to the Supreme Court’, available at: https://en.milieudefensie.nl/news/why-we2019re-taking-our-shell-climate-case-to-thesupreme-court

9 Milieudefensie, ‘Why we’re taking our Shell climate case to the Supreme Court’, available at: https://en.milieudefensie.nl/news/why-we2019re-taking-our-shell-climate-case-to-thesupreme-court

10 Letter available to download at: https://en.milieudefensie.nl/news/this-is-our-letter-to-shell

11 Greenpeace Italy et. Al. v. ENI S.p.A., the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A.

12 Decision available to download at: https://climatecasechart.com/non-us-case/greenpeace-italy-et-al-v-eni-spa-the-italian-ministry-of-economy-and-finance-and-cassa-depositi-eprestiti-spa/

13 Luciano Lliuya v. RWE (2015) Case No. 2 O 285/15 (Essen Oberlandesgericht)

EMERGING THEMES AND THE ONGOING EVOLUTION OF CLIMATE LITIGATION

Summary

This article highlights a selection of some of the domestic and international cases and developments which demonstrate the evolution of climate change litigation, before considering some emerging themes which we are tracking.

The Supreme Court held that the Council was required to assess, as an indirect effect of the well expansion project (and the prepared environmental impact assessment document should have considered), the “downstream” environmental impacts of greenhouse gas emissions arising from the combustion of the extracted oil.

The judgment has the potential to impact the scope of environmental impact assessments where there is a direct link between the project and the creation of downstream emissions. This link manifests itself most clearly in fossil fuel projects.

Following Finch, a number of decisions have emerged which consider the judgment, in particular:

Litigation In The UK

In the UK, judicial review has become an established method for parties to challenge governments and public bodies in relation to climate change. Some of the recent judicial review decisions include:

R (Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20 - a judicial review of a planning permission granted by Surrey County Council to expand oil production from a well in Surrey.

• Friends of the Earth v Secretary of State for Levelling Up, Housing, and Communities [2024] EWHC 2349 (Admin) – the first planning decision successfully challenged through judicial review on climate change grounds, following Finch; and

• Greenpeace Limited & Uplift [2025] CSOH 10, a case which concerned planning consents for two North Sea oil fields, which saw the principles in Finch being applied by the Scottish Court of Session.

In a separate judicial review challenge, Friends of the Earth, ClientEarth, Good Law Project v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin) marked a key decision where it was found that the Secretary of State’s decision to approve the government’s Carbon Budget Delivery Plan was unlawful, as it was based on a number of irrational assumptions.

International Litigation

On the international stage, a number of judgments have emerged, alongside cases where judgment is awaited.

Two ongoing international cases (involving events occurring in Brazil and Nigeria respectively) are being heard in English courts. They address the principle of parent company liability (i.e. whether a parent company is responsible for the acts of its subsidiaries) and the accountability of environmental harm allegedly caused by their subsidiaries abroad.

Authored by: Chris Wenn (Senior Associate) - Burges Salmon

BHP and others v Municipio de Mariana and others is a class action lawsuit concerning the collapse of the Fundão dam in Brazil, and the subsequent escape of millions of cubic metres of toxic waste. The claimants seek up to £36bn in compensation. Bille and Ogale Group Litigation (also known as Alame and others v (1) Shell plc; (2) The Shell Petroleum Development Company of Nigeria Ltd), centres on claims by residents of the Ogale and Bille communities in the Niger Delta against the parent company of the Shell Group, Shell plc, and its Nigerian subsidiary, SPDC. The claimants allege that leaks from the defendants’ oil infrastructure have caused extensive damage to the local environment.

In Europe, we have seen a number of cases of note:

• In the Dutch courts, Milieudefensie et al v Shell plc sought to clarify the duties owed by Shell under Dutch and human rights law to mitigate their contribution to climate change. The Dutch Court of Appeal confirmed that Shell had a duty of care to reduce its greenhouse gas emissions but allowed Shell’s appeal on whether it had a specific emissions reduction obligation (i.e. to reduce emissions by 45% by 2030). Milieudefensie is currently appealing this decision to the Dutch Supreme Court.

• In the case of Verein KlimaSeniorinnen Schweiz and others v Switzerland, the European Court of Human Rights found that Switzerland had failed to comply with its obligations under the Convention regarding climate change – in so doing violating the applicants’ rights to life and private life (Articles 2 and 8).

Further afield, we have been following with interest developments in climaterelated litigation in Australia, particularly in relation to cases concerning decisionmaking processes for fossil fuel projects (such as Waratah Coal).

ICJ Advisory Opinion

On 23 July 2025, the International Court of Justice (“ICJ”) rendered its advisory opinion on the obligations of States in respect of climate change. The opinion confirms that:

• Climate change treaties and international laws oblige States to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions; and

• Breach of such obligations constitutes an “internationally wrongful act” which may require (amongst other things) the offending State making “full reparation to injured States in the form of restitution, compensation and satisfaction”.

The opinion marks a significant development in international climate law, emphasising that climate obligations are more than simply aspirational targets. It follows another key advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) in May 2024, which confirmed that greenhouse gas emissions constitute “marine pollution” under the United Nations Convention on the Law of the Sea, whilst noting that States have obligations to prevent, reduce and control emissions.

• Preventing or delaying climate action – A significant amount of litigation has emerged to challenge climate-related financial disclosure rules and voluntary climate pledges. In parallel, “just transition” and “green v. green” cases test how climate mitigation and adaptation projects can be balanced with fairness, procedural integrity and biodiversity protections.

• Planning reform – In the UK, the government is progressing amendments to the planning regime related to judicial reviews of Development Consent Orders and National Policy Statements, particularly in relation to Nationally Significant Infrastructure Projects. The aim of these changes is to reduce delay and costs associated with judicial challenges of projects. Accordingly, we may see a reduction in judicial review challenges, particularly those relating to significant infrastructure.

Overall, it is clear that the coming years will be crucial in any assessment of the utility of litigation as a tool to mitigate climate risk in a difficult political and economic environment.

Key Trends

There are a number of broad themes emerging regarding the development of climate change litigation which we are following. These include, by way of example:

• An appetite to hold businesses to account – A significant proportion of cases filed globally in 2024 target companies or their leadership, with particular focus on those operating in industries with high global greenhouse gas emissions. Given that corporate actions and decisionmaking have such a crucial impact upon greenhouse gas emissions and the climate system, we may see an increase in climate-related commercial claims being brought between businesses or against businesses and the state.

• Political dynamics – A wave of claims followed the arrival of the new US administration at the start of this year, with further litigation which seeks to promote or challenge climate action expected. In Europe, proposed revisions to sustainability regulations are also creating uncertainty.

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FROM RISK TO RECKONING

THE EVOLVING LANDSCAPE

AND FUTURE

OF CLIMATE LITIGATION AGAINST COMPANIES –A UK FOCUS

In July 2025, the International Court of Justice advised that countries are legally obligated to curb emissions and protect the climate. The advisory opinion highlights the global emergence of climate litigation1 and the increasing pressure put on States to adopt climate friendly policies. This development will inevitably impact companies as well by influencing policy requirements and stakeholder expectations. The United Kingdom’s (UK) robust legal framework, active civil society, and growing regulatory pressure have made it a focal point for climate litigation. This report examines trends, notable cases, and future outlooks for climate litigation targeting companies in the UK.2

Fiduciary Duty And Governance Cases

To date, ClientEarth v. Shell plc has been the most impactful case on the influence of climate considerations on fiduciary duties in the UK3. ClientEarth, as a minority shareholder, brought a derivative action against Shell’s board of directors, 1

alleging a failure to adopt a climate strategy aligned with the Paris Agreement and UK law. The High Court dismissed the claim, stating that ClientEarth had not demonstrated a prima facie case that the directors were not acting in the best interests of the company (permission to appeal rejected).

Despite this judgment, the case set a precedent for shareholder activism and clarified the high bar for such claims in the UK, guiding civil society actors in developing more robust future claims. Precedents such as ClientEarth v Shell show that stakeholders are holding companies to account through litigation for how they deliver on their climate promises.

As climate litigation and regulatory scrutiny intensify, companies that fail to meaningfully consult investors, communities, employees, and other stakeholders risk lawsuits, enforcement actions, and loss of trust. Engaging stakeholders in the development and execution of climate strategies is now a critical component of sustainable business.

Greenwashing And Misleading Claims

Between 2022 and 2024, the UK’s Advertising Standards Authority (ASA) increased its scrutiny of environmental claims in advertising. This stricter enforcement resulted in several high-profile rulings, including against HSBC in 2022 for adverts that gave a misleading impression of the bank’s climate impact by promoting its green finance initiatives while omitting key information about the bank’s significant

science of climate change, mitigation and adaptation efforts, and loss and damage.” This definition does not capture cases where climate change is a motivating factor or where climate change mitigation or adaptation is impacted by the outcome of the case, but the legal arguments and judgments are not framed in terms of climate science or climate

Authored by: Mona Yue (Consultant, China & Singapore Desk) & Jesler van Houdt (Pupil Barrister) - CANDEY

fossil fuel financing. The cases illustrate that absolute claims like “eco-friendly,” “sustainable,” or “carbon neutral” must be substantiated with robust evidence and that all material environmental impacts, both positive and negative, must be disclosed clearly and prominently. Failure to provide all significant information and a balanced account is consistently ruled to be misleading.

While these claims carry limited financial risk, with the impact restricted to companies no longer being able to show misleading advertisements and ensuring that similar claims are not made again, they do pose the risk of reputational damage.

Further, the Financial Conduct Authority (FCA) has intensified its scrutiny of environmental, social, and governance (ESG) and sustainability claims, particularly in relation to green finance products. The FCA has initiated enforcement actions against firms making misleading claims about their climate-related credentials and is under increasing pressure from activist organizations to ensure robust supervision of climate-related risks. This heightened regulatory focus is expected to drive greater accuracy in ESG-related disclosures and product labelling.

Polluter Pays Actions

There is growing interest in holding companies accountable for their contributions to climate change, including through tort-based claims. While polluter pays actions against companies have not yet been successful in the UK, there are key developments in this field that can impact companies in the future.

First, with the UK Supreme Court’s decision in Finch4, a precedent has been set for judges to recognise the impact of downstream emissions on the climate. It will be interesting to watch whether the Finch judgment increases companies’ liabilities for their climate impact by encompassing downstream greenhouse gas emissions.

Second, internationally, courts are increasingly open to considering polluter pays actions. In the Lliuya v RWE case tried in Germany,5 the court held that civil claims based on climate-related risks can be brought against companies and that the assessment of these risks falls within the purview of courts rather than merely being a political issue. This German judgment may influence how UK judges assess the merits of climate litigation arguments when brought in the scope of UK proceedings.

Conclusion

As States are increasingly held accountable for their climate impact, this is likely to directly and indirectly affect companies by broadening director and fiduciary duties and by ensuring that companies take responsibility for their environmental impacts. By implementing a climate strategy, transparent communication and cooperating with stakeholders, companies can mitigate the financial and legal risks of climate litigation and emerge as leaders in the environmental transition inevitably required of all companies.

TWO UNIQUE EVENTS AT THE SAME VENUE

OVER TWO CONSECUTIVE DAYS

FIRE Americas

22-23 September 2025

Washington, D.C., USA

23-24 September 2025

Washington, D.C., USA

Maximise your time to Washington, D.C., through attending both events!

Together, these events will draw a diverse group of litigation and disputes lawyers specializing in enforcement, arbitration, disputes and asset recovery. This unique scheduling provides the perfect opportunity to meet the right professionals at each event and expand your network across both gatherings. Don’t miss this chance to connect and collaborate.

CURRENT TRENDS IN CLIMATE LITIGATION: WHAT DO CORPORATES NEED TO KNOW?

On 23 July 2025, the International Court of Justice (“ICJ”) delivered an advisory opinion on countries’ climate change obligations. The ICJ, which is the United Nations’ principal judicial organ, found that countries are obligated under both treaties and customary international law to ensure protection of the climate system from greenhouse gas (“GHG”) emissions. More significantly, the opinion potentially opens the door to claims against countries that fail to act in accordance with these obligations, which include regulating companies within their jurisdictions.

ICJ DECISION

ICJ recognized that countries’ climate change obligations encompass activities relating to the production and licensing of, and subsidies for, fossil fuels. According to the ICJ, a nation’s failure to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act attributable to that country.

US Update

For fossil fuel companies in particular, the ICJ’s advisory opinion opens the door to potential new areas of climate change legal risk. This is because the

In time, this may result in increased climate change regulation focused on the fossil fuel and other carbon intensive sectors, and other avenues of litigation by which private individuals, NGOs, climate activist organisations and governments can scrutinize corporate behaviour in such sectors with respect to climate change. As the full consequences of the opinion, which is technically non-binding on countries, remain uncertain, we summarise the state of play in climate litigation, comparing key cases and their potential effects upon companies in the US, EU and the UK.

Although the US remains the country with the highest number of climaterelated cases filed year on year, since the start of 2025, there has been a noticeable shift in the political, legal and regulatory context surrounding these cases. In stark contrast to the ICJ’s approach with respect to fossil fuels and climate change, US Federal government policy now actively promotes expansion of the fossil fuel industry at the expense of renewable energy. Furthermore, the Federal government is filing briefs in support of fossil fuel company defendants in litigation brought by local governments seeking damages from fossil fuel

Authored by: Rosalind Meehan (Counsel) , Amy Waddington (Senior Counsel) Hayley Lund (Partner) , Seth Kerschner (Partner) & Matthew Morton (Partner) - Weil, Gotshal & Manges

companies in connection with climate change. These Federal government developments come in the context of a strong anti-ESG movement in certain states. In 2021, Texas introduced a law preventing state institutions from investing in companies which “boycott” the fossil fuel industry on ESG grounds. These companies include major global banks and asset managers.

Nevertheless, the situation remains nuanced with certain states, such as New York and Vermont, seeking to enact “climate superfund” laws aimed at recovering compensation from fossil fuel companies. Other states, such as California, are pushing forward with enhanced climate change and sustainability-related disclosure requirements. While these laws remain subject to legal challenge, including from the Federal government, it is clear that the situation in the US presents a complex picture.

damage caused by rising temperatures. The compensation sought from RWE was 0.47% of the total costs, calculated as RWE’s estimated contribution to global GHG emissions. Again, while the case failed on the merits as the specific flood risk was not sufficiently imminent, the court confirmed that major GHG emitters can, in principle, be held liable for the impacts of their emissions under German law. Amongst other things, the case was a key step in the development of attribution science, which makes a causal connection between major emitters and climate-related harm, and the ability to claim damages for transboundary harm.

The Court held that the council was required to consider downstream GHG emissions (i.e. Scope 3 emissions) that would occur when oil combustion inevitably takes place elsewhere, with the result that its decision to permit the development was unlawful. The approach in Finch has been applied subsequently in Friends of the Earth v Secretary of State for Levelling Up, Housing, and Communities [2024] EWHC 2349 (Admin) where the claimants were successful in challenging the Secretary of State’s decision to grant planning permission to build a coal mine in Cumbria. In light of these judgments, project developers should take an increasingly broad approach to assessing potential downstream emissions.

UK Update

EU Update

From an EU perspective, the climate litigation landscape is broadly continuing on its previous trajectory. At present, fossil fuel companies have generally come out victorious in claims brought against them. However, European courts have delivered a number of carefully drafted judgments, which potentially leave the door open for further litigation in future, no doubt bolstered by the ICJ opinion.

In November 2024, the Court of Appeal of the Hague overturned the landmark judgment in Milieudefensie et al. v Royal Dutch Shell Plc. While Shell succeeded in knocking out an obligation to reduce its carbon dioxide emissions by 45% below 2019 levels by 2030 (or any other specific reduction target), the court nevertheless confirmed that Dutch law imposes a “duty of care” on Shell to “protect human rights against dangerous climate change”.

Another key judgment from Germany in May 2025 involved claims by a Peruvian farmer against Germany’s largest electricity producer, RWE, (Luciano Lliuya v RWE). Lliuya sought a contribution from RWE to fund the costs of protecting his property from flood

From a UK perspective, the Supreme Court has similarly acknowledged the potential for UK based parent companies to be liable for environmental harm caused by their foreign subsidiaries elsewhere in the world, under developing principles of parent company liability (Vedanta Resources Plc v Lungowe and Okpabi v Shell). Judgment is awaited in the landmark trial of Municipio De Mariana v BHP Billiton, relating to claims for damages of over £36bn arising from the 2015 collapse of Brazil’s Fundao Dam. While, pending the Municipio De Mariana decision, UK-based litigation has yet to result in a finding of liability for parent companies (as they have all been considered at a preliminary stage), these cases show a continuing trend of the courts being open to hearing such claims and, potentially, imposing such liability.

Finally, in contrast to the May 2025 US Supreme Court ruling in Seven County Infrastructure Coalition v Eagle County, Colorado where the Court clarified that the US National Environmental Policy Act requires US environmental impact assessments to focus on the environmental effects of the project at issue, in June 2024 the UK Supreme Court expanded the scope of UK environmental impact assessments (Finch v Surrey County Council [2024] UKSC 20). The claimants had challenged a local council’s decision to permit the expansion of oil production from a well in Surrey.

Conclusion

Looking to the future, in the near term, the US on the one hand and the EU and UK on the other, appear to be on increasingly divergent paths when looking at where fossil fuel companies may be subject to litigation risk in connection with climate change. As discussed in this article, the US Federal government is actively promoting fossil fuel developments and pre-emptively bringing claims against states that it believes intend to pursue litigation against fossil fuel companies. However, European regulation, which often also applies to certain US companies, may complicate the landscape further in terms of scope for climate litigants to seek to hold companies across a broad range of industries to account for perceived climate-related failings.

As a result, and in light of the international reach of the ICJ opinion, assessing climate litigation and related risk requires bespoke consideration: it may be more or less relevant depending on sector, jurisdiction, regulation, company profile and strategic litigation trends.

Commercial Dispute Resolution

Construction and Engineering

Costs and Litigation Funding

Insolvency and Restructuring

Insurance

Private Client

Professional Liability

Property and Real Estate +44

BRIDGING THE ESG GAP WITH MEDIATION PRACTICE

REFRAMING CHALLENGES AS AN OPPORTUNITY IN THE TRANSITION TO SUSTAINABLE ENTERPRISE

The ESG Gap Is Real And Growing

Over the past decade, Environmental, Social, and Governance (ESG) criteria have evolved from voluntary guidelines into powerful legal frameworks and drivers of corporate behavior. Regulation is intensifying, stakeholder expectations are rising, and civil society is actively engaging in ESG disputes worldwide. Companies face growing pressure not only to prove profitability but also responsibility, with increasing demands for ESG risk metrics from investors and corporate entities.

Yet, behind the surge of ESG reports, sustainability strategies, and ethical commitments lies a persistent gap, a growing mismatch between external promises and internal realities. The OECD’s recent report, Behind ESG Ratings: Unpacking Sustainability Metrics, highlights the complexity beneath the numbers1

1

Many organizations struggle to translate ESG from written policies to authentic practices, from a checklist of commitments to a true “speak-up” culture that delivers real value on the ground.

Far from being perceived as an opportunity, this gap is turning into a growing source of disputes, polarizing essential debates around environmental protection and human rights. The ESG gap is not merely technical or legal, it is political, emotional, and operational. It breeds misunderstandings, polarized visions, and conflicts.

Tensions inevitably arise, of multiple nature:

• Between strategy and operations: “We can’t meet these goals and stay competitive.”

• Between generations: “You say climate matters, but your decisions say otherwise.”

• Between departments: “Operations says no; sustainability says yes.”

• Between headquarters and local communities, especially in complex or extractive sectors.

• Between countries and nations.

ESG Tensions Are Structural, Not Incidental

In an era of climate urgency and rapid digital transformation, AI and highspeed technologies amplify societal fractures, reinforce like-minded silos, and often surface behaviors reminiscent of darker chapters in our history.

Authored by: Faiza Alleg Dolivet (International Lawyer & Mediator) - CMAP

The ability to listen, facilitate, and cocreate is becoming a key competitive and an ethical skill.

The ESG agenda naturally creates friction because it pushes organizations to change: to reassess priorities, disrupt routines, and balance competing interests – money versus future generations, money versus equality etc..It fundamentally challenges the very purpose of business, shifting from pure economic goals to broader, deeper responsibility and purpose, where actions speak louder than words and steps away from immediate rewards.

The Rana Plaza tragedy in 2013 provoked strong reactions worldwide, raising profound ethical questions: does corporate responsibility stop at borders, or does it extend alongside the global reach of products, technologies, and access to critical resources?

France’s pioneering Duty of Vigilance law (Loi n° 2017-39922) imposes obligations on large companies to prevent serious harm to human rights, health, safety, and the environment across their operations and value chains.

European directives now aim at building on this foundation, to extend vigilance obligations across value chains, including non-EU operations, aiming for harmonized sustainability due diligence, although the Omnibus package deal seriously hold back the movement3

The specialized court in Paris’s Pôle 5, Chambre 12, clarify recently some of the law’s substance application. The June 17, 2025 ruling in La Poste v. Syndicat SUD PTT4 stated that:

• Risk mapping must be precise, not generic.

• Companies are not required to implement detailed measures unilaterally but must co-design effective actions with stakeholders.

• Genuine consultation is mandatory with proven opportunity to elaborate the plan collectively

• Business secrecy limits disclosure of sensitive data about the value chain, but does not preclude transparency on methodology used and risk mapping

Stakeholder engagement and effective grievance mechanisms lie at the heart of duty of vigilance strategy and processes that must be both genuine and participatory on both sides.

What Mediation Offers Beyond Conflict Resolution

Why is mediation suited to a strategic, results-driven approach to ESG challenges?

Mediation is a vital resource in defining and structuring vigilance duties, especially when authentic stakeholders’ engagement and structured dialogue are required.

Identifying key stakeholders and managing complex dialogue rounds is challenging for companies, for many reasons, lack of time, distrust, misunderstanding, difficulty to identify interlocutory.

This contradicts the viral spread of unverified information, fake news, and hasty judgments that dominate public discourse. Time matters.

Mediation procedures are structured and proactive. But they create appropriate timing to process, digest, understand, evaluate information without jumping to conclusion immediately.

A neutral third-party expert is a resource to design the process, agenda, timing, priorities and negotiation steps with the parties’ consent and active participation.

It is a voluntary process, all along. As such, mediation can be used as a governance and engagement tool to:

• Surface diverging interests before escalation

• Build trust

• Reframe disagreements

• Enable co-creation beyond win/lose binaries visions

• Provide safe space for internal dissent or community voices

• Reduce litigation risk and reputational harm

This “ESG mediation project” is noncontentious but ensures robust, interestbased, realistic negotiations toward achievable plans with milestones.

It relies heavily on William Ury’s four pillars from Getting to Yes book:

1. Be soft on the people, hard on the problem.

2. Focus on interests, not positions.

3. Use objective criteria.

4. Work together for fair and creative solutions.

In contentious matters including Investor-State disputes, the process increasingly relies on conciliation mechanisms (e.g., ICSID, World Bank, OECD Grievance mechanism) to preserve investments and local development, emphasizing the fundamental element of relationships, expectations and needs in the context of financial investments and settlement of disputes.

This is never just about money.

Case In Point: Environmental Contamination And Constructive Stakeholder Engagement

A recent confidential case involving long-term environmental contamination, stemming from industrial practices halted 30 years ago and passed through successive owners of the site illustrates these challenges

2 Article L. 225-102-4 et L. 225-102-5 du Code de commerce, from law n° 2017-399, 27 march 2017

3 https://finance.ec.europa.eu/news/omnibus-package-2025-04-01_en

Successive owners were entrenched in distrust and blame for years, with strong legal postures focused on liability limits. Litigation risk, delay, and reputational damage loomed large. While discussion was ongoing about the potentialities, the actual assessment of the risk was not progressing because, truth be told, no one wanted to spend the money on it.

Legally though, each party held a share, the proportionality could be debated, but this would find no grace to the public opinion.

A turning point came when a toxicology report revealed serious potential human health risks. More investigations were needed, and the time to act was now.

With the involvement of environmental engineers from both sides, the dynamics changed, the perspective was no more risk-based or legally driven. Negotiations shifted from positional stances to interest-based dialogue. Parties agreed to jointly investigate, clarify risks, implement preventive measures, and remediate jointly the potential damage.

A collaborative stakeholders engagement process emerged, featuring:

• Clear dialogue protocols & steps ensuring confidentiality and equality

• Mutual and equal funding

• Expert vetting and involvement milestones

• Coordinated communication procedures

• Regular adaptive decision-making

• Clear investigation and remediations milestones involving the local authorities

• Transparency What began as a conflict with potential for prolonged private litigation became a platform for accountability, innovation, and trust-building. The outcome of the investigation/remediation procedures resulted on a 100% risk mitigation for people and the environment around the site. A clear win on every sides.

This case demonstrates that mediation is not about evading responsibility, but in long terms issues, where liability allocation is not that obvious, surfacing the issues in a structured manner creates ownership.

Resolution begins with how we choose to look at the problem and with involving the right people at the discussion table who can challenge views and bring different perspectives.

No One-Size-Fits-All ESG – The Multicultural Dimension in ESG Mediation

ESG is a global language spoken with diverse accents. What “responsibility” means in Paris differs from Nairobi, Mumbai, or Houston. Culture, history, regulation, and power dynamics shape perceptions of fairness and sustainability.

The success of projects involving multicultural parties across different regions depends heavily on the parties’ ability to mutually understand cultural realities from both sides, ethics, and frameworks.

Many ESG frameworks assume universality that doesn’t exist. Global companies are caught between conflicting norms and invisible cultural assumptions.

Mediation uncovers and works with these differences, not erasing them but honoring pluralism. It questions dominant narratives, recognizes cultural specificity, and finds complementary perspectives.

In a fractured world, connection is the most pragmatic and achievable goal we can aim for. Mediation offers this safe space: slowing down, translating expectations and needs, and building bridges.

Companies that embrace proactive conflict engagement, using mediation, shift from reactive dispute management to shaping shared futures.

Mediation offers a human-centered, rigorous path that embodies Humankind: building bridges, where law alone falls short, turning conflict into opportunity.

Conclusion: Don’t Manage ESG Challenge. Mediate It.

The transition to sustainable enterprise is complex and conflictual by nature. But conflict is not failure, it is a signal that a change is needed.

What Do You See As The Most Important Thing About Your Job?

It is about delivering the best outcome we can for clients. You don’t stay in this profession unless you are committed to this and derive real satisfaction from getting results.

What Motivates You Most About Your Work?

Finding an elegant solution to complex challenges and, if it is contentious, winning.

Briefly, What Is Your Daily Routine Like?

6.15am - scan the news and any messages that have come in overnight. 7am gym followed by cycle to work - I learned a long time ago that exercise is an important counterbalance. From then on, anything can happen which is part of the fun. It ends when it ends – sometimes with a drink, dinner or occasional bit of culture. Rinse and repeat.

What Is Your Favourite Part Of Your Working Day?

I love the buzz of the office. DRD has a great team which keeps things motoring.

If You Could Revisit One Moment Of History What Would It Be?

VE Day 1945 in London - the combination of celebration and relief as people danced amongst the rubble of this great city must have been extraordinary.

60 SECONDS WITH... KATE MILLER PARTNER DRD PARTNERSHIP

What Is One Memory From Your Childhood You Still Laugh About?

Probably falling down a well at a wedding the weekend before I started as a trainee at Allen & Overy. I was in my twenties, so childish if not technically still a child. The ridiculousness of what ensued still makes me laugh.

What Is A Quote That Best Describes You?

“That which does not kill us makes us stronger”. (See above)

What Would You Be Doing If You Weren’t In This Profession?

I took a sabbatical in my thirties when I was at Brunswick and worked for a wilderness project on Lake Niassa in Mozambique. Before I came back I was offered the chance to work alongside an incredible community doctor who ran clinics up and down the lakeshore. I sometimes wonder what would have happened if I had stayed on.

Who Is One Person You Look Up To In Your Line Of Work?

I have had many fantastic mentors, but if I had to name one, it would be David Rigg at Project Associates. He showed me what makes a great advisor and also helped fuel my ongoing love of the South of France.

If You Were Going To Be A Professional Sportsman/Woman, What Sport Would It Be In?

That is very unlikely but let’s go with Olympic sailor – I love being on the water and spent much of my childhood in boats. Anyone who has crewed me will understand quite how unlikelyI can only apologise and refer you back to my earlier quote.

RECENT CHANGES TO THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC)

Syed Rahman discusses how the SIAC has adapted to modern international arbitration, with provisions for cryptoassets and blockchain contracts, and its new Rules for 2025

The SIAC was founded in July 1991 and is made up of a panel of over 600 independent and neutral arbitrators from more than 40 countries. Each arbitrator has specialist knowledge of their subject area, which ensures that expertise presides over the centre.

The SIAC has become a leading international arbitral institution. It is committed to updating its rules in line with commercial global interests and has released six editions between 1991-2016.

In January 2025, it published its latest set of rules based on advice and feedback from global stakeholders. One of the main reforms was to provide urgent measures by empowering the SIAC to appoint an emergency arbitrator within one day of receiving an application, with a subsequent order delivered within 14 days. This has proven to be an effective tool for claimants concerned that the respondents may dissipate assets in anticipation of a dispute.

The SIAC 2025 Rules have further increased transparency of proceedings by mandating the disclosure of the existence, identity and contact details of any third-party funders. Anonymous third-party lenders have the potential to have unjust influence over the appointed arbitral tribunal, but this amendment seeks to tackle that problem. If there is any conflict of interest between an SIAC arbitrator and the funder, the party cannot enter the funding agreement.

The Singapore International Commercial Court

The Singapore International Commercial Court (SICC) was formed in 2015 and is an international court which is available to parties across the world. Its development was kickstarted by Singapore’s efforts to strengthen its appeal to foreign jurisdictions.

Authored by: Syedur Rahman (Partner) & Faye Summers (Associate Solicitor) - Rahman Ravelli

On 12 January 2023, the SICC launched a model clause (‘SICC Model Jurisdiction Clause’) to assist parties to be able to designate the SICC as having supervisory jurisdiction over international arbitrations. In tandem, the SIAC modified its own popular Model Arbitration Clause to recommend the inclusion of the SICC Model Jurisdiction Clause.

In November 2024, the Singaporean International Commercial Court (International Committee) Bill was passed in a bid to further capitalise on the international appeal of the Singaporean court system. This reform was subsequent to a bilateral treaty signed between Singapore and Bahrain in March 2024, after the establishment of Bahrain’s own international Commercial Court (‘BICC’). The SICC was made the appellate court for disputes arising from the BICC, which strengthened Singapore’s commercial connection to the Middle East.

The distinction is that the SICC does not directly hear appeals from Middle Eastern courts, but the SICC Committee can hear appeals from foreign civil judgments, including those from the Dubai International Finance Centre (DIFC) Courts. Decisions of the SICC International Committee for purposes of enforcement will be treated as judgments from the originating foreign court where the appeal was filed. The mechanism therefore seeks to preserve the legal identity of the foreign court’s decisions, such as the DIFC, while providing a neutral appellate forum. Decisions of the SICC International Committee are final and not subject to appeal or review by any court.

Notably, the SICC has proposed future reforms to facilitate disputes involving crypto-assets and blockchain contracts. It is no secret that cryptoassets disputes come with challenges. It is not always clear which international law applies. Often the respondents cannot be easily identified. We are yet to see what these future reforms will entail to tackle the anonymity problem.

Key differences between the SIAC and SICC

Despite the SIAC and SICC’s mutual enforcement of the other, each component differs in the services they offer. There is substantial overlap of the types of disputes that can be heard before both institutions.

A few key differences are outlined below for parties seeking to choose between the SICC and the SIAC:

• SIAC awards are enforced and recognised under the New York Convention, paving the way for arbitral awards to be enforced in the 172 signatory countries.

• The SICC may have lower costs than the SIAC.

• The SIAC has the advantage of confidentiality as arbitration is always a private forum. However, the SICC competes closely on this point. Proceedings in the SICC take place in open court by default, but parties can still agree on confidentiality or apply to the Court for it.

• The SICC has the upper hand with respect to the appellate process. This may be an advantage or a disadvantage, depending on the dispute. Parties who want the arbitral award to be final should opt for the SIAC. But parties who want the option to appeal would prefer the SICC.

“Fresh

CHALLENGING JURISDICTION UNDER THE ARBITRATION ACT 2025 A NARROWING PATH?

The Arbitration Act 2025 (“the 2025 Act”) came into force on 1 August 2025. It will apply to all international and domestic arbitrations1 that commence thereafter, as well related court proceedings.

The 2025 Act has been widely hailed as a progressive development of the Arbitration Act 1996 (“the 1996 Act”), which it amends substantially. Commentators have praised its clarifications relating to the governing law of arbitration agreements, arbitrator disclosure and immunity, and the express power for summary disposal.

Less has been said about the 2025 Act’s significant curtailment of a party’s right to challenge the tribunal’s substantive jurisdiction. As explored below, while the amendments may well reduce unwelcome delay and costs that accompany jurisdiction challenges, this is at the expense of an important safety net for the challenging party.

The Fundamentals

A party may challenge the tribunal’s substantive jurisdiction on the grounds that

(i) there is no valid arbitration agreement,

(ii) the tribunal is not constituted in accordance with the agreement, or

(iii) the tribunal is deciding matters that go beyond the scope of the agreement.2

Without jurisdiction, the tribunal has no authority to arbitrate the dispute and any award rendered is liable to be set aside.

Jurisdictional challenges have been relatively common, though rarely successful. There is little doubt that they are used too often by recalcitrant parties to prolong proceedings and increase costs in order to delay an inevitable unfavourable award. However, they also serve an important purpose. Jurisdiction is fundamental to the validity of arbitral proceedings. Failure to address jurisdictional problems in a robust manner can render entire proceedings invalid or unfair.

The 1996 Act

The 1996 Act provided a number of routes to challenge jurisdiction. First, a jurisdictional challenge could be made to the tribunal. It is a fundamental principle of international arbitration law that an arbitral tribunal is competent to rule on its own jurisdiction. The “kompetenz-kompetenz” doctrine is enshrined in section 30. Second, a party could apply directly to the court preaward, if agreed or otherwise permitted

1

Authored by: Rupert Wheeler (Barrister) - 23ES Chambers

by the tribunal (section 32). Third, the court could be asked to determine jurisdiction post-award, regardless of agreement or permission (section 67).

Importantly, a post-award challenge under the pre-amendment section 67 was a full rehearing. The court would not be bound or influenced by the tribunal’s own ruling on jurisdiction, which would have “no legal or evidential value” (per the Supreme Court in Dallah [2010] UKSC 463). Before the court, a party was not restricted as to the arguments or evidence it could present. The principle was simple: if the tribunal might have lacked overall jurisdiction, then its decision on its own jurisdiction was worthless. The court needed to make an independent assessment to ensure it reached the correct decision.

Accordingly, it was possible for an ambitious party to bring multiple, substantial jurisdictional challenges. This could include taking jurisdiction as a preliminary point before the tribunal, in court under section 32 and bringing a challenge under section 67 once the award was made.

The 2025 Act therefore sought to curtail jurisdictional challenges significantly by preventing parties from having a “second bite”.

The 2025 Act amends section 32 so that it is no longer available where the application “is in respect of a question on which the tribunal has already ruled” (section 32(1A)). Parties are forced to choose either the court or tribunal for a preliminary challenge, with no further recourse at this stage.

Section 67 is further restricted. Where the tribunal has ruled on an objection to its jurisdiction and the challenging party “took part”, it cannot deploy new objections or evidence that could, with reasonable diligence, have been raised below.5 Further, it cannot ask the court to re-hear evidence6 - it is bound by the evidential findings of the tribunal. Though the court may depart from these restrictions in the “interests of justice”, they represent a complete departure from the Dallah re-hearing.

In short, a party must choose whether to bring a jurisdictional challenge directly to the court under section 32 or 677 or go to the tribunal first but accept that any subsequent review by the court will be limited.

On the other hand, the new approach arguably places too little weight on the problem identified in Dallah. If a tribunal may have had no jurisdiction in the first place, limiting a party to its evidential findings is conceptually problematic. There is a risk that the court’s reliance on a tribunal’s evidential conclusions may result in jurisdiction challenges being rejected where, in reality, the tribunal had no jurisdiction to make the findings in the first place. While the court has discretion to re-hear evidence in the interests of justice, the parameters of that discretion are inherently ambiguous. The court may not be able to ascertain the true interests of justice if it lacks the context provided by a full rehearing.

Further, being forced to choose when to bring the “full” jurisdictional argument may encourage parties to wait until the delivery of the award before presenting their objections. If that objection is ultimately successful, the entire proceedings might be rendered invalid, at huge cost and expense to the parties.

Finally, the 2025 Act does not define the nature and scope of “taking part” for the purposes of section 67 challenges. The lack of certainty will surely result in further unwanted litigation relating to whether a party’s level of participation means they are caught by the section 67 restrictions.

Conclusion

The Key Changes

A desire for change was driven, in particular, by the concern that the ability to have a full hearing both before the tribunal and court

(i) could be used to gain a tactical advantage and

(ii) wasted time and expense disproportionately 4

A party could test arguments before the tribunal in order to refine them in court and deal with exposed deficiencies. Similarly, new points could be taken in court that the tribunal and other party had not been able to address at first instance.

A Fair Revision?

Through severely limiting the scope of jurisdictional challenges, the 2025 Act will inevitably achieve savings in cost and time. It may also assist in depriving parties of unfair tactical advantages, though it has always been open to the court to do this through its case management powers. More fundamentally, the new provisions show respect for the kompetenz-kompetenz principle and the sanctity of arbitration by placing more weight on the tribunal’s own decision as to its jurisdiction. This is further enhanced by providing that, where a jurisdictional challenge succeeds, the default remedy is remittal for reconsideration rather than set aside.8

3 Dallah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46; 2011 1 AC 763

4 See e.g. Chapter 9, “Review of the Arbitration Act 1996: Final Report and Bill”, Law Commission, Law Com No 413

5 Section 67(3C)(a), (b)

6 Section 67(3C)(c)

A degree of reform to jurisdictional challenges was undoubtedly justified in a system that could be abused by parties, causing increased delay and costs. Arbitration should be quicker and cheaper than litigation. It often isn’t. However, it is arguable that the amendments go too far in their curtailment of rights.

It should be emphasised that the section 67 restrictions are not final legislative provisions. Rather, they recommend minimum standards to be incorporated into procedural rules.9 Accordingly, while a new set of rules are highly likely, their exact content remains to be seen. Either way, the clear message of the 2025 Act is that the path to challenging jurisdiction is narrowing.

7 The full hearing remains available under section 67 where the party does not take part in the jurisdictional argument before the tribunal.

8 Section 67(3A)

9 Section 67(3B)-(3C)

THE CHALLENGE OF ESTABLISHING CREDIBILITY IN OPT-OUT COLLECTIVE ACTIONS

Authored by: Matilda Lloyd Williams (Senior Account Manager) - Byfield

A decade on from the introduction of the UK’s first opt-out collective proceedings regime for competition law claims in the Competition Appeal Tribunal (CAT), collective actions are now firmly established as part of the legal landscape. The Tribunal itself has matured, and procedures have become more settled, but recent moves, such as the Department for Business and Trade’s call for evidence, show the regime remains open to scrutiny and further evolution.

being brought and the low take-up of damages by claimants , have begun to expose the regime to reputational risk. Unless claims can be shown to be proportionate, credible, and consumerfocused, the system risks being tainted as driven by lawyers and funders, rather than by the need for consumer redress.

Public perception of a claim is now coming to matter almost as much as the legal process. The CAT requires cases to be not just legally sound but procedurally and publicly coherent. Strategic PR is central to that coherence: it establishes legitimacy, frames claims as consumerfirst and builds the reputational environment in which defendants are more likely to engage or settle.

At the heart of that scrutiny lies the question of legitimacy. Collective redress is an important tool that allows compensation to flow directly to affected consumers. But the rapid growth of claims, alongside concerns about the size of awards and claimant uptake, has intensified debate about how well collective redress serves consumers. Claimants argue it delivers access to justice and consumer accountability while critics, particularly business lobby groups, describe it as a “gravy train” for funders and lawyers, with consumers seeing little benefit.

As we start to see settlement in the CAT, questions around the value of the claims

Where PR and Communications Are Fundamental to Building Legitimacy

Collective actions thrive or fail on legitimacy. While the legal process provides the framework, public perception shapes how that process is received, reported, and ultimately

judged. PR and communications are therefore fundamental as a central strategic pillar in building, launching and settling any collective action

Collective opt-out claims come with inherent narrative advantages: vast sums, powerful corporate defendants, and the David-versus-Goliath appeal. But these advantages can be squandered if communications fail to connect consumers with the claim. The PR challenge is threefold: ensuring accurate coverage, engaging class members, and applying reputational pressure on defendants to engage constructively.

At its core, legitimacy requires that redress be proportional to wrongdoing, that arguments be coherent and trustworthy, and that consumers remain central. Visible engagement from class members amplifies pressure and validates the claim. Communications must therefore build clarity, trust, and action, reaching consumers through trusted sources such as mainstream media outlets, consumer advocates, and respected commentators.

Stakeholder voices also play an important role. Policymakers can elevate a claim from legal dispute to reputational risk. Investors and analysts can press defendants to engage by highlighting ESG or brand concerns. Even the legal community itself can reinforce credibility through endorsement. Together, these actors form an ecosystem of legitimacy.

Claims administrators are equally crucial. They manage outreach, validate claims, and distribute redress. But without consistent communications, their efforts risk being undermined. Every consumer touchpoint must be simple, transparent, and aligned with the claim’s narrative. Poor communication fosters apathy; strong communication builds engagement.

2. Active Proceedings

Strategic Phases of Communications

The communications strategy must align with the legal process but also sustain its own momentum. Each stage carries distinct objectives: building credibility, sustaining pressure, and reinforcing legitimacy.

1. Pre-Filing, Announcement, Certification, and Competing Claims

The announcement of a claim is the most important moment to establish legitimacy. Pre-filing communications lay the groundwork, positioning the case as a structured, well-founded response to genuine consumer harm, led by a credible and fit Class Representative.

At certification, the Tribunal examines not only the legal soundness but also whether the claim appears coherent, proportionate, and capable of delivering redress. Communications must showcase organisation, credibility, and consumer benefit, while introducing the Representative as a trusted figure. Early evidence of consumer engagement is particularly valuable in persuading stakeholders—and ultimately the CAT— that the case has legitimacy.

Where rival or overlapping claims exist, communications must focus on elevating the leading claim as the most coherent and effective option. Public attacks on competing claims risk confusing consumers and undermining confidence. Instead, the narrative should stress clarity, structure, and public interest.

Once certified, the task shifts to sustaining visibility and engagement. Communications should run in tandem with the legal process but also create distinct moments to reinforce legitimacy and build pressure. This is the stage where broader endorsements can play a decisive role: trade groups, policymakers, or institutional investors speaking out against the defendant can raise the stakes and add credibility to the claimant’s cause.

Consumer engagement also remains vital. Trusted third-party voices—whether consumer champions, influencers, or respected commentators—can help drive awareness and participation. At the same time, communication must be aligned with claims administrators to ensure that updates are timely, userfriendly, and tailored to prevent fatigue. For example, regular but measured email updates or push notifications keep the class engaged without overwhelming them.

This stage is also where legitimacy is most vulnerable: delays, technical barriers, or disengaged class members can erode trust quickly. Ongoing communication must therefore anticipate these risks, reinforcing clarity and accountability at each step.

what redress they are entitled to, and how to claim it. Working closely with their legal claims’ administrators, and PRs, claimant groups should ensure that messaging is consistent, timely, and easy to act upon. The media also plays a critical role here: effective engagement can help encourage people to come forward to claim the compensation owed to them; and build a a narrative around fairness and proportionality rather than scepticism.

This is also an opportunity for defendants. Companies can use the settlement process to demonstrate that they value consumers –particularly when many claimants remain customers – by publicly framing the redress as part of a commitment to accountability and lessons learned for their future conduct.

Ultimately, high claimant uptake is the strongest demonstration of legitimacy. It validates the system, reassures the Tribunal, and leaves less room for critics to argue that collective actions benefit only the advisors. Settlements that secure meaningful distribution to consumers not only serve justice but strengthen the system’s long-term credibility.

3. Settlement, Legal Victory, and Distribution

The settlement or outcome stage is a reputationally sensitive moment. A poorly communicated resolution risks undermining legitimacy, even if the legal result is sound. If consumers do not understand the outcome, feel excluded, or perceive that lawyers and funders have benefitted disproportionately, trust in the entire regime suffers.

Clear, accessible communication is therefore essential. Consumers must understand what has been achieved,

Legitimacy Is Key

Ten years in, the UK’s collective redress regime is embedded, but its legitimacy is being contested. Proponents stress that the regime enforces consumer rights and delivers access to justice. Critics warn of a drift toward US-style litigiousness, with funders and lawyers benefitting disproportionately while consumer participation remains low.

The system is still maturing, and its reputation will depend as much on the technicalities of legal procedure as to how effectively claims are communicated, understood, and resolved. Courts, press, policymakers, and the public are all alert to questions of proportionality and consumer benefit. As it enters its second decade, the survival of the UK’s opt-out regime will depend on whether claims demonstrate legitimacy in practice.

When a client is involved in a dispute or investigation, managing public and stakeholder interest is critical.

We are specialists in Disputes & Investigations communications. Our team is instructed by claimants and defendants in high profile domestic and international cases across a wide range of business sectors. Clients call on Byfield’s specialist expertise to support their legal strategy, or to provide alternative solutions that help them achieve their objectives.

MR ROBERT HAMMOND’S CPO APPLICATION AGAINST AMAZON AND THE POTENTIAL TREND OF JOINT CASE MANAGEMENT IN THE CAT

On 24 July 2025, the Competition Appeal Tribunal (“CAT”) handed down its joint decision to certify two Collective Proceedings Order (“CPO”) applications to bring opt-out proceedings against Amazon.1 One of the CPO applications is brought by consumer advocate, Mr Robert Hammond2, on behalf of approximately fifty million UK consumers. The other was filed by Professor Andreas Stephan,3 on behalf of roughly 200,000 UK-domiciled thirdparty retailers selling their goods on Amazon’s marketplace.4

sellers who hire Amazon’s additional fulfilment services, even when alternative products are offered by other third-party sellers that are equally good in all material aspects but cheaper. Dr Pike, Mr Hammond’s expert economist, opines that, as a result, UK consumers have overpaid by more than £2.2 billion for many of the products they purchased from Amazon, since October 2015.5

where two or more overlapping CPO applications are filed by proposed class representatives (“PCR”) against the same defendant(s). In such instances, the CAT must assess which applicant is best placed to act as the class representative.

Both claims allege that Amazon abused its dominant position, in breach of Chapter II of the Competition Act 1998. Mr Hammond’s claim focuses on how Amazon chooses to place offers in its coveted Buy Box, where the majority of purchases are made. Mr Hammond alleges that Amazon unfairly discriminates in favour of its own products, as well as those by third-party

1 Robert Hammond v Amazon, Inc & Others [2025] CAT 42.

The CAT’s certification decision is an important milestone, as it allows Mr Hammond’s and Professor Stephan’s respective claims to proceed on an opt-out basis. Moreover, this is the first time the CAT has considered a joint certification hearing and ordered joint case management, in the context of collective proceedings. This article examines how the Hammond and Stephan CPO applications came to be jointly heard, and the potential trend of joint case management of collective claims, in the CAT.

Timeline Before Certification:

A notable feature of both CPO applications is that each involved preliminary carriage disputes prior to certification. Carriage disputes arise

2 Case 1595/7/7/23 Robert Hammond v Amazon.com, Inc. & Others.

3 Case 1644/7/7/24 Professor Andreas Stephan v Amazon.com Inc. & Others.

4 For more information on Professor Stephan’s claim, please see his claim website at: https://amazon3psellerclaim.com/

On 5 February 2024, the CAT handed down its ruling preferring Mr Hammond’s application (and in particular, his expert’s methodology) to that brought by Ms Julie Hunter.6 Mr Hammond’s claim was initially scheduled for a certification hearing in September 2024.

Shortly beforehand however, Amazon was faced with two CPO applications, on behalf of third-party retailers, brought by both Professor Andreas Stephan and the British Independent Retailers Association (“BIRA”). Amazon therefore applied to the CAT to vacate Mr Hammond’s certification hearing, requesting that it should be jointly heard with the winner of

5 For more information on Mr Robert Hammond’s claim, please visit his claim website at: https://www.claimagainstamazon.com/

6 Robert Hammond v Amazon, Inc & Others [2024] CAT 8.

Authored by: Amr El Sawaf (Of Counsel) & Vishnuviraj Dhir (Trainee Solicitor) - Charles Lyndon Limited

the two retailer PCRs, due to the overlap between the underlying facts relied on by Mr Hammond and, in particular, Professor Stephan.

As is evident, the Tribunal granted Amazon’s application, and postponed Mr Hammond’s certification hearing until the retailer’s carriage dispute is resolved. Importantly, it did so without Mr Hammond having had sight of either Professor Stephan’s nor BIRA’s claim forms and expert reports, emphasising the practical case management oversight the Tribunal can exercise.

Joint Case Management – A Useful Mechanism For Future CAT Claims?

The Hammond/Stephan certification hearing marks the first time the CAT has heard two opt-out applications jointly. The joint approach may well be a blueprint for future parallel claims alleging overlapping anti-competitive conduct against a common defendant, in this case Amazon.

Although Mr Hammond and Professor Stephan represent different class members (consumers and third-party sellers respectively), at their core both CPO applications allege facts and plead similar allegations regarding Amazon’s Buy Box algorithm. Therefore, in recognising these common questions, the CAT ordered that both cases are jointly managed for procedural efficiency.7

Importantly, and coincidentally, the joint approach was beneficial for Mr Hammond. While the CAT found that Dr Pike, Mr Hammond’s expert, presented a well-developed methodology to assess Mr Hammond’s allegation of exploitative abuse by Amazon, the CAT opined that Dr Pike’s methodology for Mr Hammond’s allegation of exclusionary abuse by Amazon was insufficiently developed to meet the certification threshold.8

The CAT contemplated two options:

(i) certify only the exploitative abuse claim and direct Mr Hammond to further develop the exclusionary abuse methodology9; or

(ii) permit the exclusionary abuse to proceed by allowing Mr Hammond to adopt the methodology developed by Professor Stephan’s expert (Dr Houpis) up to the point of pass-on, after which Dr Pike will assess the downstream effects to consumers to avoid any conflict of interest between retailers and consumers.10

The CAT chose the latter novel and pragmatic option. In doing so, the CAT emphasised that the joint management of parallel claims can yield procedural benefits. It explained:

“…it is clear to us that it would be sensible for the Stephan and Hammond Actions to proceed together. They have some common issues, and it would be inefficient, wasteful of the Tribunal’s resources and indeed a burden on Amazon, to decide those issues separately following two separate trials”.11

To date in the CAT, Proposed (and certified) Class Representatives have filed multiple collective proceedings, against the same defendant(s) that seek to represent different classes along the supply chain. Whether it is too late for claims already filed, joint case management may very well be the norm, rather than the exception, going forward.

For example, the ‘Apple App Store’ proceedings involve certified claims by Dr Rachael Kent (on behalf of consumers)12 and Dr Sean Ennis (on behalf of app developers).13 Both of these claims challenge how much Apple charges app developers in commissions and how that has affected the prices paid by end consumers.

Additionally, the salmon cartel proceedings involve a damages claims by a number of supermarkets14 as well as opt-out collective proceedings by Waterside Class Representative Ltd15 on behalf of UK consumers who purchased the relevant salmon products from UK supermarkets. Both proceedings rely on an ongoing EU Commission investigation16 and have a common factual and legal basis: namely, did the relevant Norwegian farmed salmon producers unlawfully collude and inflate the prices of the relevant salmon products sold in the UK.

While neither the Apple App Store nor salmon cartel proceedings are subject to joint case management orders, yet, the efficiency benefits to do so are notable, including to reduce:

(i) the demands on the CAT’s time,

(ii) cost and volume of documents produced, and (iii) the burden on the defendants faced with common allegations by different parties.

Collective proceedings before the CAT don’t seem to be slowing down, and they frequently involve two-sided markets. Therefore, the CAT’s order to jointly case manage the Hammond/ Stephan cases may very well signal a concerted effort, going forward, to favour efficient management of these large complex mass claims.

7 [2025] CAT 42, paragraph 133.

8 [2025] CAT 42, paragraph 130.

9 [2025] CAT 42, paragraph 132.

10 [2025] CAT 42, paragraphs 133 – 134. 11 [2025] CAT 42, paragraph 133.

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LITIGATION FUNDING AGREEMENTS IN THE UK COLLECTIVE PROCEEDINGS REGIME

Summary

A Civil Justice Council (“CJC”) report into litigation funding agreements (“LFAs”) is likely to revive plans by the last government to pass legislation establishing once and for all that LFAs are not, and cannot, constitute damages-based agreements (“DBAs”) for the purposes of section 58AA of the Courts and Legal Services Act 1990 (the “CLSA”). This article contends that, whilst the greater legal clarity provided by legislation would be welcome, the reasoning put forward by the CJC is unconvincing and a more nuanced approach should be adopted which recognises the strong public policy reasons for strict regulation of DBAs in any form.

the defendants to collective proceedings in the Competition Appeal Tribunal (“CAT”) against decisions of the CAT and Divisional Court that LFAs entered into by the respondents (who were class representatives bringing collective proceedings in the CAT) were not DBAs, which would have been unenforceable by virtue of section 58AA of the CLSA, because they did not comply with the requirements of section 58AA(4). Each respondent had entered into an LFA under which the funder’s remuneration was calculated by reference to a percentage of the damages recovered in the litigation.

“claims management services”, and the LFAs were not DBAs. The Divisional Court upheld that decision. On appeal to the Supreme Court, the defendants’ appeal was allowed, and the LFAs were held to be unenforceable DBAs. The Supreme Court’s reasoning (Lady Rose dissenting) included that:

a) The words used to define “claims management services” were apt to cover the LFAs. Under the LFAs, the funders were to provide financial services or assistance to the claimants in relation to the making of the claims they wished to bring.2

The PACCAR Judgment

R (on the application of PACCAR Inc and others) (Appellants) v Competition Appeal Tribunal and others (Respondents) [2023] UKSC 28 (“PACCAR”) concerned an appeal by

The definition of a DBA under section 58AA(3) includes an agreement between a person providing “claims management services” and the recipient of those services, where the recipient’s obligation to make payment to the provider, and the amount of that payment, are to be determined by reference to the financial benefit obtained by the recipient (i.e., the damages or compensation recovered). Section 58AA(7) operates to give “claims management services” the meaning “advice or other services in relation to the making of a claim”, including the provision of “financial services or assistance”.1

The CAT held that “financial services or assistance” only applied in the context of the management of a claim. Since the funders had no role in the management of the respondents’ claims against the appellants, they were not providing

b) Contrary to the views expressed by the CAT, “claims management services” had no established meaning which could operate to qualify the express language used in the definition. Moreover, a qualified meaning would run counter to the scheme and purpose of the Compensation Act 2006.

c) It did not follow from the fact that section 58B of the CLSA (which provided for certain LFAs to be enforceable) had not been brought into force that the appellants’ interpretation of “claims management services” produced any absurdity. The provisions had different focuses and purposes: “claims management services” was concerned with certain activities, whereas section 58B was focused on regulating particular persons.

Authored by: Kassia Pletscher (Associate) - Baker Botts

The Sony Judgment

Seeking to extend the effect of the judgment in PACCAR, the appellants3 in Sony Interactive Entertainment Europe Ltd and another company v Alex Neill Class Representative Ltd and other cases [2025] EWCA Civ 841 (“Sony”) also appealed against decisions of the CAT that revised LFAs were not DBAs and were therefore enforceable. In this case, the revised LFAs provided that the funder’s fee was to be calculated as a multiple of the funder’s outlay rather than as a percentage of the damages4 and, expressly or by implication, that the amount of the funder’s recovery was capped at the level of the proceeds recovered.

The Court of Appeal dismissed the appeal, ruling that the LFAs in this case were not DBAs because the amount payable to the funder in each case was not “determined by reference to the amount of the financial benefit obtained”, given that the funders’ primary contractual entitlement in this case was to a multiple of the funders’ outlay, not to a percentage of damages.5 The fact that the funder’s return was subject to an express or implied cap because it was limited by reference to the proceeds did not mean that it was determined by reference to the amount of those proceeds.6

Taken together with the Supreme Court’s ruling in PACCAR, the Court of Appeal’s judgment in Sony helps to clarify the legal status of LFAs: by virtue of relating to financial services or assistance, which is a form of claims management service for the purpose of section 58AA of the CLSA, LFAs are capable of being—but are not always— DBAs. Whether or not any given LFA is a DBA depends on whether the funder’s fee is determined (i.e. calculated) by reference to the sum of damages obtained.

Civil Justice Council Report

In March 2024, the last government introduced into Parliament the Litigation Funding Agreements (Enforceability) Bill (the “Bill”), which would have amended the CLSA to exclude LFAs from the definition of DBAs. The new Labour government announced that it would not reintroduce the Bill until the Civil Justice Council (“CJC”) completed its wider review of third-party litigation funding. The CJC issued its final report (the “Report”) on 2 June 2025 (a little under two months before the Court of Appeal handed down judgment in Sony).

The Report recommends that PACCAR be “reversed” through legislation with both prospective and retrospective effect, bringing LFAs outside the scope of the regulation of DBAs entirely. It gives a number of reasons for this recommendation, including that the separate regulation of LFAs under the unenacted section 58B implies that Parliament intended LFAs and DBAs to be subject to separate regulatory regimes, and that the provisions relating to DBAs were intended only to apply to agreements governing the fees of a legal representative.7 This may well have been the case, but the effect of s.58B if enacted would have been to limit enforceable LFAs to agreements where the funders’ fee is calculated by reference to the funder’s anticipated expenditure (i.e., LFAs of the type found not to be DBAs by the Court of Appeal in Sony).8 There would have been no need to regulate LFAs as a form of DBA, because such LFAs would have been unenforceable by virtue of s.58B itself. To the extent that, in the absence of an enacted s.58B, LFAs can be but are not always DBAs, there is no reason to suppose that Parliament would have intended for LFAs that meet the criteria of a DBA to nevertheless be enforceable.

However, the CJC went further and proposed that, even in the case of legal representatives, DBAs should be permitted in opt-out collective proceedings in the CAT, and should not be subject to any cap.9 This is difficult to reconcile with the public policy considerations militating against the use of DBAs, which the CJC indirectly referred

to when citing a government consultation which observed, “allowing DBAs could encourage speculative litigation, placing unjustified costs on defendant businesses and creating an incentive for lawyers to focus only on the largest cases”.10 If such policy considerations apply to DBAs entered into with a legal representative, they are presumably also applicable to agreements entered into with a funder; allowing damages-based LFAs would equally incentivise funders to focus only on the largest of cases. This concern is (again, indirectly) acknowledged by the CJC, but not addressed in any depth.11

Finally, no consideration appears to have been given to the impact of DBAs, including damages-based LFAs, on the prospects of out-of-court settlement. Although the CJC considers that percentage-based LFAs could result in a reduction to funders’ returns, this depends on the quantum of damages, and the CJC’s recommendation that there should be no cap on such returns creates a further degree of uncertainty in this regard. There is a risk that defendants who could otherwise be incentivised to reach settlement through the application of a reverter mechanism might be more inclined to go to trial on the basis that, if a higher proportion of the damages will go towards paying the fees of the lawyers and the funders, it is less likely that the residue of the settlement sum will revert to the defendant. Such an outcome would be bad for both defendants and claimants, and for public resources.

Conclusion

The government has committed to taking into consideration the CJC Report in its recently-launched review of opt-out collective actions more generally, so legislative reform in this area seems likely.12 The clarity this would provide is of course to be welcomed; if prospective parties to litigation are unsure whether their proposed means of funding the claim will be permitted by the courts, this can only operate to the detriment of access to justice. However, it does not follow that clarity requires a complete reversal of the position established in PACCAR (and, subsequently, Sony). Rather, a more nuanced approach should be adopted which recognises that LFAs might take a number of forms and that some forms of LFA might constitute DBAs, which there are good public policy reasons to restrict.

3 The Court of Appeal judgment in Sony related to appeals in four separate collective actions before the CAT, in each of which the Defendants had challenged the validity of the amended funding arrangements in the wake of PACCAR. The appeals were heard together because they raised similar issues: Alex

v Sony [2024] CAT 73; Commercial and Interregional Card Claims v Visa and Mastercard [2021] CAT 3; Dr Rachael Kent v Apple [2024] CAT 5; and Justin Gutmann v Apple [2024] CAT 18. 4 In one instance, the LFA provided that the funder’s fee was the greater of the multiple of outlay, or a percentage of the proceeds “to the extent enforceable and permitted by applicable law”.

Neill

LEVERAGING ARTIFICIAL INTELLIGENCE FOR ROBUST DEFENCE IN UK COLLECTIVE ACTIONS

Authored by: John Hays (Managing Director) - Ankura

Defence counsel and their corporate clients face an increasingly complex and demanding environment, as the UK’s collective redress regime continues to advance. Effectively responding to and defending against a growing number of mass claims requires not only legal acumen but also efficiency and strategic foresight. The traditional, manual processes for tasks such as comprehensive liability assessment, meticulous data management, and evaluating claims can be impossible when confronted with thousands, or even millions, of claimants.

This is precisely where the transformative power of Artificial Intelligence (AI), and specifically Large Language Models (LLMs), becomes indispensable. With their capacity to comprehend, analyse, and generate human language at scale, LLMs offer a profound strategic advantage. This evolution is not about supplanting legal expertise; rather, it’s about equipping legal professionals with advanced tools to enhance every phase of the mass claims defence lifecycle, from initial risk mitigation to final resolution. AI is no longer a futuristic concept but a vital

strategic asset, offering stakeholders unprecedented capabilities to navigate, manage, and robustly defend against collective actions.

AI-Powered Pre/Early Case Assessment & Strategy

Effective defence begins long before a claim is formally filed. AI empowers counsel to conduct sophisticated pre-case and early case assessments providing clients with a clearer understanding of their potential exposure and defence strategies.

Liability Risk Assessment: AI algorithms can ingest and analyse colossal volumes of structured and unstructured data – from internal corporate communications and historical transaction records to public filings, regulatory guidance, and vast legal precedents. By identifying patterns, anomalies, and correlations that human analysts might miss, AI can pinpoint areas of potential liability, assess the strength of a claimant’s potential arguments, and even predict the likelihood of adverse findings. This foresight allows counsel to advise clients on proactive measures, such as remediation or policy adjustments, to mitigate future risks or strengthen their defensive posture.

Damages Exposure

Analysis:

Quantifying potential financial exposure in collective actions is notoriously difficult. AI models can simulate and analyse different scenarios, incorporating factors such as the estimated number of claimants, the nature of alleged damages, historical settlement data from similar cases, and economic indicators. These predictive analytics provide clients with a more

accurate range of potential damages, enabling informed financial provisioning and strategic decision-making regarding, for example, settlement negotiations versus litigation.

Litigation Analytics: AI can analyse vast repositories of past litigation data, including judicial rulings, settlement trends, and opposing counsel’s strategies. This provides counsel with insights into potential judicial predispositions, optimal legal arguments, and the likely behaviour of adverse parties, informing more effective litigation strategies and tactics.

Data Validation: The integrity of data is paramount in litigation. AI tools can cross-reference extracted information against multiple sources, identify inconsistencies, flag potential errors, and highlight gaps in data. This automated validation process ensures the accuracy and reliability of the information used to construct defence arguments, bolstering credibility and reducing the risk of challenges based on data quality.

Verification & Auditing: Beyond initial fraud detection, AI assists in the comprehensive verification of claims. It can cross-reference claimant details with internal client records (e.g., customer databases, sales records) or public registries to confirm eligibility and validate the veracity of the claim. Personal ID verification can be streamlined through automated validation. Defendants who are not actively engaged in the administration of a settlement may wish to leverage AI to audit samples of approved claims using similar automated verifications to ensure accuracy and compliance with approved claim eligibility protocol.

Conclusion

AI For Claims Processing And Auditing

AI For Efficient Data Management & Review

AI can revolutionise how counsel manages and reviews the immense volumes of data central to collective actions, ensuring accuracy and efficiency.

Document Classification: In a collective action, counsel is often inundated with millions of documents, either through eDisclosure or the defendant’s internal records. AIpowered tools can automatically classify and categorise these documents based on content, relevance to specific legal issues, and privilege. This significantly reduces the manual effort required for initial triage, allowing legal professionals to focus on the most pertinent information. Machine learning models can be trained on specific case criteria, ensuring highly accurate and consistent classification across the entire dataset.

Data Extraction: Unstructured data, such as invoices, emails, meeting minutes, and internal reports, often contain critical pieces of information scattered throughout the text. AI-driven natural language processing (NLP) capabilities can automatically extract key entities, dates, figures, and specific clauses from these documents. This extracted data can then be populated into structured databases, making it readily searchable, analysable, and verifiable, drastically accelerating the process of building a comprehensive defence narrative.

When a collective action reaches settlement, a defendant may wish to play an active role in overseeing its administration to ensure its efficacy and maintain goodwill (and avoid negative publicity) amongst customers, employees, and the greater public. AI offers unparalleled capabilities for managing the influx of claims and ensuring their legitimacy.

Automated Claims Ingestion: When thousands or even millions of claims are submitted, manual processing can be untenable. AI can automate the ingestion of claim forms, irrespective of their format (digital or scanned physical documents). Using optical character recognition (OCR) and NLP, AI can extract claimant details, claim amounts, and supporting evidence, populating this information directly into a central claims database. This dramatically speeds up the initial processing, allowing for quicker assessment and response.

Fraud Detection: A significant concern in claims administration is the potential for fraudulent or duplicate claims. AI algorithms excel at identifying anomalies and suspicious patterns that indicate fraud. By analysing claimant data against pre-defined rules, historical fraud indicators, and even external datasets, AI can flag claims that exhibit characteristics of potential fraud, such as identical addresses for multiple claimants, unusual claim values, or inconsistencies in claim form data. Machine learning models can continuously learn from new data, improving their ability to detect novel fraud schemes over time.

The rise of collective actions in the UK necessitates a modern, technologically advanced approach for defendants at risk of or facing a mass claims event. Artificial Intelligence provides counsel with the tools to meet this challenge head-on. By leveraging AI for early case assessment and strategy, efficient data management, and robust claims processing and auditing, counsel can offer their clients a proactive, datadriven, and highly efficient defence. This not only leads to significant cost savings but also enhances strategic outcomes, positioning clients to navigate the complexities of collective redress with greater confidence and control. Embracing AI is not merely an option; it is a strategic imperative for firms committed to delivering cuttingedge solutions in the evolving legal landscape.

For more information please contact:

NOEL CAMPBELL

Partner, Hong Kong

T +852 3983 7757

E noel.campbell@hfw.com

ANDREW WILLIAMS

Partner, London

T +44 (0)20 7264 8364

E andrew.williams@hfw.com

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BRIAN PERROTT

Partner, London

T +44 (0)20 7264 8184

E brian.perrott@hfw.com

NICOLA GARE

Professional Support Lawyer, London

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E nicola.gare@hfw.com

IMPLEMENTATION OF THE DIRECTIVE (EU) 2020/1828

ON REPRESENTATIVE ACTIONS IN POLAND

Authored by: Magdalena Osmęda (Attorney at Law, Senior Associate) - KKG Legal

Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/ EC (hereinafter: “Directive”) has introduced rules on collective redress for consumers on European level. The aim of the Directive is to make pursuing claims of consumers (including crossborder claims) more effective.

The Directive has been implemented in Poland by the Act of 24 July 2024 amending the Act on pursuing claims in group proceedings and certain other acts (hereinafter: “Class Action Act”), which entered into force on 29 August 2024.

In Poland representative actions take the form of class actions heard by a court in a panel of three professional judges.

Class Action Act has been in force since 2010, therefore the implementation of the Directive did not introduce a completely new institution.

Representative class action is a new “subtype” of polish class action (group proceedings), which differs in certain respects from the existing “classic” group proceedings.

The representative class action covers cases on the determination of using practices that infringe the collective interests of consumers and cases on claims related to the use of such practices. Both types of cases (claims) may be pursued simultaneously in single court proceedings. The practices infringing collective interests of consumers are understood as an act or omission by an entrepreneur that does not comply with the provisions of the European Union law referred to in Annex I to the Directive. These provisions

apply to almost all industries and should strengthen consumer protection in many sectors (e.g., electronic commerce, food, cosmetics, medicinal products, transportation, financial markets, electricity market, media services, digital services). New regulations are particularly significant for consumers of services and products (often of lowvalue) sold on a mass scale.

In the Polish legal system, prior to the implementation of the Directive, there was (and still is) an entity responsible for the protection of collective consumer interests, i.e. the President of the Office of Competition and Consumer Protection

(Prezes Urzędu Ochrony Konkurencji i Konsumentów; hereinafter:

“President of the UOKiK”).

Collective interests of consumers, protected by the President of the UOKiK, are defined negatively as interests, which are not the sum

of individual consumers interests. Therefore, within the meaning of the Directive, the concept of “collective interests of consumers” has a slightly different meaning. The Directive defines this term as

“the general interest of consumers and, in particular for the purposes of redress measures, the interests of a group of consumers”.

Under the Act of 24 July 2024 the term “collective interests of consumers” has a meaning compliant with the Directive.

admissibility of group proceedings, which in “classic” group proceedings are as follows:

1. a case belongs to one of the statutory categories;

2. homogeneity of claims (i.e., each group member seeks the same form of legal protection);

3. numerosity of the group (at least 10 persons);

4. the same or similar factual basis of claims;

5. standardization of monetary claims in subgroups of at least two persons.

In representative class actions for determination of using practices that infringe the collective interests of consumers, the requirement to form a group is waived – the qualified entity acts on behalf of all consumers affected by the practice.

In summary, the Polish provisions implementing the Directive achieve its overarching objective of facilitating the enforcement of consumers’ claims. The new provisions should cause an increase in the number of class actions in Poland – provided that consumer organizations will be keen to register as qualified entities.

New representative class action complements the measures available to the President of the UOKiK being the central government administration body that issues administrative decisions. The provisions set for solutions to prevent situations, where proceedings before a court and the President of the UOKiK would be conducted in parallel in the same case. If both – the qualified entity and the President of the UOKiK – take actions in the same case, the action taken by the President of the UOKiK shall take precedence.

Representative class action may only be brought by a qualified entity entered in the register kept by the President of the UOKiK or in the list kept by the European Commission. In Poland, the qualified entity is the Financial Ombudsman (in a limited category of cases relating to the financial market). In addition, a consumer organization may be entered in the register upon request. The conditions for entry in the register are essentially the same as those set out in Article 4 of the Directive. However, it is not possible to appoint qualified entities ad hoc for the purposes of specific proceedings. At the end of July 2025, no consumer organization had been entered in the register of qualified entities.

The regulation on representative class actions provides for certain facilitations to pursue consumer claims. These facilitations mainly include the liberalization of premises for the

Furthermore, in all representative class actions, it is sufficient that the claims have the same legal basis. The claims do not have to be based on the same or similar factual basis. This is a significant liberalization, as in “classic” group proceedings the requirement of the same or similar factual basis causes the most problems in practice. Finally, in all consumer cases, the requirement to standardize monetary claims has been abolished.

Moreover, the qualified entity is exempt from court fees for bringing an action. The fee for an action in “classic” group proceedings may amount to up to PLN 200,000.

The amending act, following the Directive, explicitly allows for the third-party funding of qualified entities actions. The third-party funding must meet certain conditions and cannot be detrimental to the protection of consumer interests.

Representative class actions, as all group proceedings in Poland, are divided into three specific phases: certification phase (examination whether the conditions for admissibility of the class action are met), group composition phase (determination of the composition of the group) and substantive adjudication phase (issuing a judgement on the merits).

UK ANTITRUST CLASS ACTIONS

REFLECTING ON RECENT DEVELOPMENTS IN THE COMPETITION

APPEAL TRIBUNAL

Introduction

The UK’s antitrust class actions regime in the Competition Appeal Tribunal (CAT) is, by a significant margin, the country’s most active forum for collective litigation. In the last five years, the regime has grown from a standing start to over 50 concurrent proceedings, with a combined damages value exceeding £160 billion.

Following this initial period of rapid growth, the past year has seen significant developments indicating that the regime may be entering a new, more mature phase. These include the first substantive judgment in the regime going against the claimant class, the CAT’s first complete refusal of class certification applications, notable funder-fundee disputes, and the Civil Justice Council’s (“CJC”) recommendations, which could overhaul the litigation funding market. All of this comes during a period of change for the CAT itself, culminating in the recent appointment of Mrs Justice Bacon as its President.

Slowdown In Claims –The CAT’s Increasingly Strict Approach

Arguably, the most significant of these recent developments was the December 2024 judgment in Le Patourel v BT – the first ever handed down in a CAT class action following a full trial. The CAT rejected the Class Representative’s (“CR”) allegations that BT had unfairly overcharged the claimant class for its telephone services – a judgment which the CR unsuccessfully sought to reverse on appeal. This demonstrated, in particular, that the ease of certification is no indicator of future success. The judgment provided guidance for future cases, including how regulatory findings

would be treated, and confirmed that the CAT will use its own expertise to assess expert evidence, rather than simply siding with one party. Beyond the broader implications for the regime, funders and claimants may find the outcome particularly sobering given the £17 million investment by the CR’s funder and an adverse costs liability of up to £19.8 million, which notably exceeds the limits of the CR’s ATE insurance policy.

The CAT has also begun to take a stricter approach to class certification, refusing the applications of two proposed CRs without offering them the opportunity to reformulate their claims, as it had done with previous unsuccessful applicants. In Riefa v Apple, the CAT took particular issue with the suitability of the CR, particularly their apparent lack of understanding of their role in relation to the funding model and their duty to operate independently of the funder as a representative of the claimant class. This judgment marked a significant departure from the relatively straightforward certifications that had been common in previous years.

Authored by: Airlie Goodman (Partner) - Mayer Brown

Settlements – Unhappy Funders And Minimal Damages For Claimants

In addition, claimants now face the prospect of ongoing disputes even if they are successful. Following the settlement in Merricks v Mastercard , a significant dispute arose between the CR and his solicitors on the one hand, and the funder (Innsworth Capital) on the other. The root of the dispute is the funder’s allegation that the £200 million settlement was “too low” and “premature”, being less than 1.5% of the initial claim value of £14 billion. The CAT nevertheless approved the settlement, ringfencing £100 million for the class members and ordering that the funder be paid their £45.5 million principal investment plus a profit of £22.5 million. Despite this approximately 50% profit margin, the funder remains dissatisfied and has commenced arbitration against the CR, alleging breach of the litigation funding agreement.

Despite the funder’s objections to the settlement, they have fared materially better than the claimant class. If each of the (approximately 44 million) class members were to come forward to claim their portion of the damages ringfenced for them, each would receive only £2.20. Although this is unlikely, even on the parties’ own estimate of 5% of the class seeking their damages, each class member would still receive only around £45. In the context of an eightyear period of litigation, months of court time, and tens of millions of pounds in costs, this result raises the question of whether the class action regime is truly delivering the access to justice it was intended to provide.

CJC reforms

Nevertheless, the CJC’s recommendation to overturn the PACCAR judgment as soon as possible has been welcomed by funders and claimant firms. If implemented by the government, this change would restore certainty to the funding market and remove statutory caps on funder returns (subject to court approval that they are “fair, just and reasonable” in class actions).

This may well lead to a renewed appetite to bring new class actions in the CAT. From the defendant’s perspective, however, the hope is that the government will also adopt other CJC recommendations, such as the introduction of capital adequacy requirements, mandatory ATE insurance, and a requirement that funders and claimant firms certify to the court that they did not approach (either directly or indirectly) the funded party to seek their agreement to pursue the litigation. Such recommendations will provide muchneeded guardrails to mitigate the risk of more speculative claims.

Class members would also receive additional protections in collective proceedings, including the introduction of a regulatory Consumer Duty based on the FCA’s Consumer Duty, mandatory provision of independent legal advice to funded parties from a King’s Counsel (a senior barrister) on the terms of the LFA, and mandatory disclosure of the LFA to the court at the commencement of proceedings, after which the court would determine whether the terms should be approved.

It remains to be seen if, how and when the government will implement the CJC’s recommendations and this is awaited with interest.

The uncertainty around funding and the other case-based developments referred to above have likely contributed to the slowdown in the number of claims commenced in the CAT this year. Between December 2020 and December 2024, over 50 opt-out claims were commenced, the significant majority of which were certified and are ongoing. However, as at 1 August 2025, only two claims have been commenced so far in 2025.

As the regime matures, its future will depend on the careful balancing of the interests of claimants, defendants, third parties such as funders, and the wider public. There are a number of claims moving to trial this year, with judgments expected in the few that have recently concluded trials. Each of these will provide crucial guidance on what can be expected of the regime in the future.

Conclusion And Looking Forward

The UK’s antitrust class action landscape continues to evolve, bringing both challenges and opportunities for the CAT, litigants, the professionals advising them and funders.

What Is One Work Related Goal You Would Like To Achieve In The Next Five Years?

Learn to appreciate more the times I am less busy.

What Cause Are You Passionate About?

Palliative care. There is a local hospice providing amazing care including, alas, to too many friends and acquaintances who have passed in their prime.

What Has Been The Best Piece Of Advice You Have Been Given In Your Career?

First thing every morning, pick up and deal with the brief or matter you least want to look at.

What Do You See As The Most Rewarding Thing About Your Job?

Solving problems for clients; seeing a solution that has evaded those who have looked at the problem previously. Giving wise counsel and helping clients achieve the very best outcome in the circumstances.

How Do You Deal With Stress In Your Work Life?

Probably badly.

If You Could Start All Over Again, What If Anything Would You Do Differently?

Realise that a successful legal career is a marathon rather than a sprint.

60 SECONDS WITH... PATRICK HENEGHAN BARRISTER 3PB

What’s Your Go To Relaxing Activit[ies/Y] To Destress After A Long Day At Work?

Aside from engaging in a number of questionable high-risk sporting activities, going for a long dog walk on the downs around where I live, which are scattered with iron age hill forts. There is something very grounding about seeing Edie (the dog) running around without a care and also in treading where people have lived and toiled for over 5 millennia.

What’s The Most Important Quote You’ve Heard That You Have Adopted To Your Personal Or Professional Life?

“Success is not final, failure is not fatal: it is the courage to continue that counts.” For many years I thought this was said by Winston Churchill. The AI on my computer “thinks”, however, that it may very well be from a 1930s beer advertisement in the US. Make of that what you will.

What Would You Be Doing If You Weren’T In This Profession?

I think the very fear of what this might be has driven me forward for the past 30 years. I’d like to think the answer would be something in medicine.

A very close toss-up between Life of Brian (a choice which, no doubt, would send the Jesuit fathers from my school days into various states of apoplexy) and Cool Runnings (a very funny story of resilience and a somewhat qualified triumph over adversity).

What is the best film of all time?

Danushka

Maddi

Amelia Gittins