Commercial Litigation
Trends and insights 2026
Businesses operating in the UK face an increasingly complex and uncertain landscape.
Global uncertainty affects international supply chains, and macroeconomic challenges put pressure on commercial relationships. At the heart of those relationships lie commercial contracts. These contracts face forensic scrutiny when relationships are tested as parties seek to enforce their rights or obtain a commercial advantage.
In 2026, the English courts will continue to see a consistent flow of litigation about the meaning and effect of key contract terms. The courts will continue to favour certainty, holding the parties to the bargain they have struck rather than trying to save them from a bad bargain. It has never been more important for businesses to understand and proactively manage commercial and legal risks and to be ready to act quickly if their position is threatened.
From 1 January 2026, a two-year pilot will run in certain London commercial courts which makes it easier for third parties, including the press, competitors and members of the public, to access documents filed with the court by litigants. Documents including skeleton arguments, witness statements and expert reports will all by default be publicly accessible online shortly after the hearing for which they were filed.
The aim of the pilot is to promote open justice. However, parties to litigation should be aware that court documents which previously attracted limited attention are much more likely to be accessed and reviewed. They will need to consider how court documents may land with a wider audience and be prepared to take steps to deal with increased reputational and commercial risks.
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Legal 500 2026
Informal communications can create legally binding contracts
Recent judgments, including the Court of Appeal's decision in DAZN Ltd v Coupang Corp [2025], highlight the risks for businesses conducting informal commercial negotiations that a binding contract may be formed earlier than they expected.
In this case, negotiations for valuable international broadcasting rights had been conducted by WhatsApp and email, with both parties anticipating that a formal written agreement would follow. However, the court found that, notwithstanding the lack of formalities, the parties had intended to be bound by an exchange of emails and had subsequently acted as if a contract was in place.
It is vital for commercial parties to make negotiation teams aware that informal communications can lead to binding contracts and to ensure that labels such as 'subject to contract' are used where the parties do not wish to be bound without a formal contract.
“In commercial negotiations, informal communications can carry binding legal consequences.”
Understanding the risks of 'agreements to agree' in commercial contracts
The Court of Appeal also upheld a disputed commercial contract in KSY Juice Blends Ltd v Citrusco GmBH [2025]. The contract provided that the price for a second tranche of product would be agreed between the parties. Citrusco argued that this was an unenforceable 'agreement to agree'. However, the court implied a term into the contract that the price would be fixed as a reasonable or market price.
Parties should ensure that their contract terms are clear to avoid the risk of the court imposing an outcome that neither party intended. In volatile markets where pricing flexibility is needed, it is preferable to provide agreed criteria or an agreed mechanism to determine the contract price.
Acting quickly matters in breach of contract situations
The Court of Appeal decision in Kulkarni v Gwent Holdings [2025] provided important guidance to commercial parties where a breach of contract may have occurred. A serious, or repudiatory, breach of contract gives the innocent party the right to terminate the contract and claim damages.
The court held that even for such serious breaches, if the breach is remedied before the innocent party terminates, the right to terminate may be lost. The judgment also highlighted the need to comply with contractual formalities, such as terms requiring a notice to remedy a breach before the right to terminate arises.
When a potential breach of contract occurs, it is vital for both parties to consider their position swiftly and ensure that any contractual formalities are met. A failure to act quickly can lead to valuable contractual rights or claims being lost.
Commercial Litigation
Our experienced team of dispute resolution specialists advises clients on high-value, high-profile and complex matters commercial disputes, often with an international element. We offer a partner-led service and work closely with experts in our Corporate, Intellectual Property, Commercial, Employment and Banking teams to provide fully rounded and strategic advice.