Crisis? What crisis…? Litigation trends on the radar
Solomonic invited Alexander Oddy, Kenny Henderson, Kimberley Farrell, Susan Dunn and Tim Maltin to explore the critical hotspots shaping the litigation landscape of 2025 and beyond.
Conflicts, economic instability, trade wars and post-pandemic fallouts are keeping the world in a state of limbo – just as we begin to recover from one crisis, another emerges. This isn’t just playing out globally - we’re seeing it in High Court litigation as well. While Solomonic data suggests we may be over the hump of pandemic business interruption and big-ticket Russian aircraft seizure claims, fresh waves of litigation like mis-sold motor finance and ESG claims are stepping into the spotlight.
With climate risks escalating, ongoing conflicts and fresh shocks from tariff threats and stock market crashes, the big question is: Are we moving past the crisis period anytime soon or are we now living in a permanent ‘polycrisis’?
On 25th April 2025, Solomonic brought together a distinguished panel of industry experts to explore the current litigation landscape and where it may be headed. The discussion, chaired by Solomonic CEO Edward Bird, featured:
Alexander Oddy, Partner at Herbert Smith Freehills, who heads up the Insurance and Professional Risks team, assisting corporate policyholders with claims against insurers.
Kenny Henderson, Partner at CMS, focusing on class actions, group litigation and competition litigation.
Susan Dunn, Founder of Harbour Litigation Funding, with over 23 years of expertise in litigation funding globally and chair of the Association of Litigation Funders.
Kimberley Farrell, Senior Legal Counsel at Capita, managing high-value litigation across a variety of dispute types.
Tim Maltin, Managing Partner at Maltin PR, specialising in high-value international civil litigation and managing the reputational aspects of litigation.
Embracing change and transparency in funding
The litigation funding industry has been in the spotlight as the Civil Justice Council (CJC) undertakes a review of the sector, with potential changes including statutory regulation, return caps and mandatory disclosure. However, for funders, the top priority remains a government reversal of the Supreme Court’s July 2023 PACCAR ruling that has stunted claim volumes over the last year or so.
Susan Dunn opened the session by addressing these challenges, noting that many funders welcome the CJC review, with the last conducted 14 years ago. She emphasised the importance of basing regulatory discussions on evidence when responding to market concerns surrounding funding.
“The last time that there was a review of funding was 2011 - that's 14 years ago. It's very timely to just look at how this is operating and whether different things should be done in the way it is overseen.”
As reported in the Solomonic Year in Review, a drop in commercial claims as well as slowing in newly issued group and collective actions was witnessed through 2024. Dunn recognised a drop in the number of cases being funded and issued, partly due to the PACCAR bill.
“...because of PACCAR there has been a decline in the number of case issued. It’s not all about funding, but there is undoubtedly a connection there, that cases which three years ago would have got off the ground are not doing so now because there is less funding available and a lot of uncertainty in the market.”
Dunn warned that mishandling regulation could drive funders to other jurisdictions, which could weaken England and Wales position as a leading legal hub.
“The risk is, if you get these things wrong, funders can really quickly and easily pivot as they did away from Australia in a heartbeat.”
The recent Court of Appeal decision in Gutmann v Apple Inc & Others, confirming that litigation funders can take their fee before the distribution of damages, has been welcomed amidst the uncertainty and the CJC’s ongoing review will be critical in shaping the future landscape.
A slowdown in the class actions boom
Kenny Henderson looked at whether the recent dip in group and collective actions signals a declining trend or suggests the peak of this type of litigation has passed. He pointed to the sharp rise in class actions since 2020, largely fuelled by the low certification threshold set by the Supreme Court in the Merricks v Mastercard case and the extraordinary scale of claims filed in the Competition Appeal Tribunal (CAT), involving hundreds of millions of consumers.
“A slowdown in a phenomenal rate of growth rather than a decrease. In the CAT, by the end of 2023 claims encompassing 540 million group members have been filed and most of that growth has been since 2020.”
Henderson highlighted that there have been very few settlements in the CAT, but the approval of settlements, such as the Mastercard case settlement, demonstrates proof of concept for funders. This indicates that funders can achieve a return on capital, potentially leading to a second phase of rapid growth in litigation funding.
He noted that many potential regulations are pro-consumer, especially considering 'no win, no fee' cases and stressed the need for appropriate regulation to protect consumers and ensure transparency in the litigation process.
“Litigation funding ought to be sensibly regulated. It does play a role in access to justice, but it comes with risks for participants.”
Insurers must brace for the next wave
Alexander Oddy highlighted the evolving landscape of insurance litigation, using the Covid-19 pandemic and the Russia-Ukraine conflict as prime examples of how crises can generate waves of litigation.
“Covid-19 – in litigation terms, it's a real illustration of how a crisis plays out and the types of litigation that arise.”
Oddy noted the value of litigation data in revealing this and pointed out that Russian aircraft litigation still has a considerable way to run. Claims surged soon after the Russia-Ukraine war as aircraft owners sought recovery for their stranded property. The first round has reached trial, with around 90 more cases in the second wave just closing pleadings – signalling a long road ahead as asset owners watch the outcomes and decide whether to proceed with further claims.
“There is an available view of the data on what's going on in the courts in a way that there simply wouldn't be if we were trying to talk about the post-GFC litigation wave.”
He shared insights on future trends in insurance litigation, stressing the need to stay alert to emerging risks, and pointed to three key areas to watch in the market:
PFAS (forever chemicals): These chemicals, used in various applications from industrial coatings to firefighting foams, are already generating significant litigation in the United States and are expected to impact the UK market as well. Claims related to PFAS could involve products liability and civil liability policies.
Greenwashing claims: As environmental, social and governance (ESG) concerns grow, companies may face shareholder actions for misstatements about their environmental impact under Section 90A FSMA. These claims may trigger directors and officers (D&O) liability insurance, particularly under Side C coverage.
Motor finance cases: The Supreme Court's upcoming decision on secret commissions could trigger a surge of claims. Depending on the outcome, there may be potential insurance recovery routes such as professional liability or other civil liability policies to cover compensation or defence costs.
“I suspect a number of potential defendants are thinking about, or certainly ought to be, how they are protecting their insurance position on a precautionary basis to see how those sorts of claims flow through.”
What’s keeping GCs awake at night?
Kimberley Farrell shared her insights on managing risks from an in-house perspective, highlighting the wide-ranging challenges General Counsels (GCs) face - especially at a global, multi-sector company like Capita, where litigation risks span both public and private domains.
Solomonic data shows that regular contractual disputes continue to be the leading driver of litigation year-on-year.
Besides this, Farrell shared several key areas on the in-house risk radar:
Procurement: With the new Procurement Act taking effect, compliance and the ability to challenge decisions are top priorities. The complexity and potential for disputes in this area can be significant.
Construction: Long limitation periods mean legacy projects can still spark claims, often involving large sums and intricate legal issues.
Pensions: Historical pension disputes demand detailed documentation and often require standstill agreements, adding to the burden.
Software licensing: Licensing audits frequently uncover under-compliance, triggering costly and disruptive legal action.
Cybersecurity: With cyber-attacks on the rise, and M&S the latest target of an attack, data breaches pose significant litigation, reputational and financial risks.
GCs must juggle immediate litigation threats with long-term strategic risk planning. By staying informed and prepared, GCs can navigate the complexities of the landscape and protect their organisations from potential pitfalls.
“In-house teams need to be proactive, be able to look at the landscape and try and predict where those spikes are going to come next in order to be able to advise the company and try and get ahead of that litigation.”
Reputation as a strategic asset
Tim Maltin explored how litigation reputation management has become increasingly sophisticated, as the reputational fallout from legal disputes can often outweigh the litigation cost. High-profile companies have faced severe public scrutiny due to legal challenges, making reputation a critical factor, especially when legal outcomes are finely balanced.
“If you look at the Solomonic data, you can see that actually, claimant wins and losses are frighteningly knife edge - really quite small margins that you're trying to move the dial on.”
Strategic communication and well-managed PR are now essential tools, capable of shaping public perception and influencing outcomes. Clients are increasingly recognising the need to manage reputational and legal risks in tandem. He noted the importance of engaging with legal teams early in the litigation process and the power of PR to change perceptions in favour of clients and protect long-term brand value.
“In an extreme situation, you could win in court, but you can still lose in the court of public opinion. Equally, you can have a situation where you could lose in court but still end up on the moral high ground in the court of public opinion.”
Longer claim timelines, settlement power plays and the role of ADR
The Solomonic Year in Review revealed that cases are taking longer to resolve, whether through judgment or settlement. The panel considered the increasing duration of claims and the growing popularity of alternative dispute resolution (ADR) methods, such as mediation and arbitration. Farrell noted the impact of lengthy court processes on costs and the importance of finding quicker, more cost-effective solutions.
Maltin explored a rise in ‘settlement PR’, where clients make a strong public show at the CMC stage to highlight the reputational risks and challenges the other side will face. This strategy often forces earlier settlements, saving the client time and money in the long run.
Oddy added that substantial groups of cases going through the courts can inevitably lead to delays which are mitigated by orderly case management.
Solomonic data also suggests that courts are making greater efforts than ever to move cases through the system. So, while there is more active litigation, judges are delivering decisions quicker and holding more hearings in key courts.
The litigation polycrisis era
The panel's insights make it clear that an ongoing series of issues or 'polycrisis' is here. From the impact of recent crises to the importance of managing reputation, the discussion underscored the complexity and dynamism of the legal environment and how litigation data empowers professionals to not only stay alert but also proactively navigate the landscape to protect clients and manage emerging risks effectively.
Access the full webinar recording below.