Daniel Spendlove examines the trends and developments set to shape the commercial litigation landscape in 2027, in the Law Society Gazette

Collective redress

Whilst in some senses in a state of flux, the mass claims litigation market remains very active. A number of significant, high-profile cases are likely to continue to keep litigators busy both on the claimant and defence side.

Demand in the Competition Appeal Tribunal (CAT) remains high, and the High Court continues to see high profile securities claims under s.90A of the Financial Services and Markets Act 2000 in particular.  Further, earlier this year judgments were handed down in two behemoth opt-in mass claims: first, the Mariana dam collapse in Brazil brought on behalf of 420,000 claimants, and second, the so-called 'Dieselgate' claim brought on behalf of 1.6 million claimants. The dam case at least looks set to remain active as we head into 2027.

A recurring and continuing theme is reform. There are no less than three live consultations affecting mass claims (including how they are funded), which inevitably triggers debate as to whether the UK should lower or raise the barriers to such claims. That is not a debate that can be resolved easily or quickly, and some polarised views exist. Although questions remain as to the nature and shape of any reform, the following appears likely in the short to medium term:

• the Supreme Court decision in PACCAR will be overturned by legislation;
• litigation funding will be subject to regulation, at least in relation to consumer claims;
• the SRA will clarify, if not tighten, the ethical rules governing claimant solicitors acting in mass consumer claims; and
• mass claim litigation risk for corporates will only increase, including in Europe in light of the Representative Claims Directive.

In the meantime, mass claims will continue to dominate the headlines. And as always in litigation, there will be winners and there will be losers.

Private credit

Many commentators are drawing comparisons between the rapid growth in the use of private credit - and in particular perceived vulnerabilities in some structures - and the lead up to the collapse of Lehman in 2008. We all know what then followed. Whether or not that comparison is apt remains to be seen, but what is clear is that the private credit market has the potential to keep teams of litigators busy for several years.

There are arguably warning signs of, at the very least, a tightening in the market. This year has seen a marked increase in investor withdrawal requests from funds, leading to some major US fund managers imposing or tightening redemption gates on credit vehicles. This in itself generates the potential for disputes.

Many litigators are asking themselves what kind of disputes this liquidity pressure might generate, and how they ought to position themselves in terms of representation. Funds, directors of funds and fund managers, investors, auditors, back leverage providers, borrowers and fund advisers may all need separate legal representation in a range of possible disputes. Those disputes also have the potential to generate spin-off disputes, for example negligence claims and fights over insurance coverage. If, therefore, the private credit market does face the pressures that many are suggesting it will, it is likely to keep litigators busy for some time.

Geopolitical events

Our work as litigators often maps and reflects significant geopolitical events. Sometimes those disputes play out at the same time as the events in question, but more usually they follow later – sometimes months or even years later. At the time of writing this article there is no shortage of such events, and the stresses they create on business and supply chains often track into disputes which are direct results of geopolitical events, whether they be the closure of the Strait of Hormuz, the imposition of new sanctions, or the ongoing conflict in Ukraine.

As we head into 2027, therefore, we are likely to see a growing demand for litigators expert in trade and sanctions matters. At the heart of most cases, however, is a contract – and litigators would therefore be well advised to dust off their copies of Treitel and reacquaint themselves with the rules on contract construction, termination, force majeure, impossibility, frustration, causation and loss (to name just a few).

These events also generate work for insurance litigators. Cases continue to be litigated over the scope of war and terrorism exclusion clauses. Disputes of this nature often take on an even greater importance because the determinations reached will have far-reaching consequences for other policyholders and insurers. They can be market defining.

There are of course indirect consequences of geopolitical events. A perfect storm of higher prices, lower customer demand, reduced liquidity, and reduced investor confidence will likely itself generate disputes, as corporates often cannot afford to trade their way out of difficulties. Sometimes, litigation is the only option.

It would be wrong, however, to think of litigators as the end point, or the advisers of last resort. We have a key role to play in helping clients to avoid disputes - most obviously in early dispute resolution.  This might take the form of an early mediation, or simply guiding a client through principal-to-principal discussions before matters escalate. But we can do more.  We can – and should – assist our clients in the contract negotiation phase. Since we operate at the coal face of when things go wrong, we can play a useful role in identifying potential risks and advising on how those risks ought to be allocated or shared in the negotiation phase.  

For these reasons, it's worth general counsel and our transactional colleagues having at least one litigation colleague on speed dial as we head into 2027.

A sharper public gaze on litigation

2026 saw the introduction of reform which had the effect of broadening the categories of document on the court file that can be accessed by the public (including journalists) without permission from the Court. Non-parties have always been able to obtain statements of case, orders and judgments, and trial witness statements (once relied on in trial). However, they can now obtain the following categories of document once they have been used or referred to at a public hearing: 

• skeleton arguments and written submissions;
• witness statements and affidavits (but not their exhibits or appendices);
• experts' reports (including annexes and appendices);
• any other document which the judge considers critical to an understanding of the hearing; and
• any other documents which the parties may agree.

At the very least this is likely to lead to increased reporting of high-profile litigation matters. Whereas previously a journalist may have needed to have sat through many days in court in the hope of hearing a nugget of evidence or submission worthy of reporting, that same information might now be found in readily accessible documents which could be reviewed by AI within a matter of seconds.  

For litigants and litigators, careful thought now needs to be given before including commercially confidential or sensitive information in documents filed at court which can now be accessed by third parties. If such information must be included, positive steps will need to be taken to prevent access.  Litigators will be closely watching the courts' approach to applications of this kind, engaging as they will the delicate balance between open justice and parties' individual confidentiality or privacy rights.  

The human element to litigation

It would be remiss to crystal ball gaze without mentioning the perennial topic of AI. The discussion on AI has shifted in many respects from one of predicting the future to one of reflecting on how it is already impacting the conduct of litigation – and how as an industry we need to respond.

The opportunities generated by AI, at least for litigants, are clear. How can we possibly not welcome something that has the potential to lower cost, streamline work, speed up the litigation process, reduce monotonous work, and help us to identify key evidence early on in a matter?  

The answer to that question is, of course, not a straightforward one. The increasing use of AI in litigation generates a number of risks and challenges for the legal industry, ranging from risk and compliance issues, debates on pricing and how to maintain leverage and profitability, and the recruitment, training and development of junior lawyers. Used properly, however, it has the potential to dramatically improve the user experience and change our industry for the better.

2027 will see litigators (and the legal market as a whole) continue to grapple with these opportunities and challenges. One thing is clear, though. The key qualities of a litigator – experience, judgment, empathy and emotional intelligence – are innately human qualities. Unless, therefore, our clients, opponents and judges become robots, there should still be a role for human litigators in 2027 and well beyond.