Litigation Trending – Predictions for 2026

As we enter the New Year, Ashurst's Commercial Litigation team make five predictions for litigation trends in 2026.

Funding – it's all to play for

Litigation funding in 2025 was marked by PACCAR’s ongoing shadow, which made funding agreements based on a percentage of the damages recovered unenforceable (read our briefing). In June 2025 we also had the publication of the long-awaited Civil Justice Council (CJC) final report on its review of the litigation funding industry. Key recommendations included a reversal of PACCAR and light touch regulation.

On 17 December 2025, the Government confirmed its acceptance of the CJC's two primary recommendations, but timing remains uncertain. Legislation to clarify that funding agreements are not Damages Based Agreements (i.e reverse PACCAR with prospective effect), and provide for "proportionate regulation" of funding agreements will be introduced "when parliamentary time allows". The Government will then consider the wider recommendations made by the CJC, so it remains unclear if, when, or how the remaining recommendations will be implemented.

Legislation introduced in 2026 regulating the funding industry in the UK will represent a divergence in approach with the EU, with the European Commission confirming in late November 2025 that it will not progress the regulation of third party funding in the EU.

2025 also saw a noticeable decline in the number of collective actions filed in the CAT with funder returns increasingly being scrutinised by the Tribunal (see, for instance, Innsworth’s setback in Merricks). The funding environment for opt-out collective actions remains uncertain going into 2026, with the response to the Department for Business and Trade's call for evidence on the regime eagerly anticipated.

Our prediction: 2026 will be another important year for the funding industry. The Government's formulation of "proportionate regulation" and response to the remaining CJC recommendations, and a number of key funded class actions scheduled for trial this year should give funders and investors a clearer picture of where they stand. That said, the current DBT review of the opt-out class actions regime in the CAT may give some funders pause for thought and we are unlikely to see that finally resolved until 2027.

More detail on these developments is provided in our article for Funds Insider Issue 12, although this was published before the Government's 17 December announcement.

Increased transparency in the Commercial Court

Open justice is a fundamental principle that lies at the heart of the justice system. Most court hearings are open to the public, and the public can access certain court documents without court permission. However, permission is still required to access court documents that help the public to understand what is going on at hearings.

From 1 January 2026 a 2 year pilot will commence which will make it easier for the public to access court documents in key courts.

The pilot will be run in the Commercial Court, the London Circuit Commercial Court of the King's Bench Division and the Financial List (both Commercial Court and Chancery Division). Guidance indicates that there will be a review after six months and, if the pilot proves successful, it is expected to be extended to other courts within 2 years, with the Business and Property Courts likely to be next.

Application to existing proceedings: The pilot is not limited to new cases. It will apply to ongoing proceedings where there is a public hearing after 1 January 2026.

Which documents will be accessible? The document must have been used or referred to in a public hearing. Documents within scope include:

• Skeleton arguments
• Written submissions
• Witness statements and affidavits
• Expert reports
• Any other document the judge deems critical to the understanding of the hearing
• Any documents the parties agree should be made public

How will the public access these documents? The party that has produced the document must file it on the Courts CE-File system. Members of the public will then be able to access them online for a small fee (usually £11 per document).

The pilot will allow members of the public to access court documents more quickly and at less cost; we therefore expect to see more non-parties accessing court documents. That said, parties to proceedings will be able to apply informally for a Filing Modification Order (FMO) where they are seeking to not file, or redact a document, eg where there are confidentiality or data protection concerns.

Our prediction: It is likely that there will be a significant number of FMO applications in 2026. Judicial guidance will emerge on what the courts are willing to redact. The new ease of access to court documents combined with uncertainty surrounding the courts' approach towards FMOs may prompt parties to consider the benefits of private dispute resolution forums, such as expert determination, mediation or arbitration.

More structure and scrutiny in a maturing collective proceedings regime

As the Competition Appeal Tribunal enters 2026 and its 11th year since the creation of the bespoke opt-out collective proceedings regime for competition claims, the regime looks set to move from rapid expansion to disciplined consolidation.

The coming year is likely to be marked by tighter gatekeeping at the pre-certification stage, following some high profile refusals to certify¹ and substantive dismissals². And, following the Supreme Court decision in the FX collective action, the merits of a claim will now play a more determinative role in deciding whether a claim can proceed on an opt-out basis. Following the appointment of Mrs Justice Bacon as its new President in May 2025, the CAT has already begun to exercise more rigorous procedural control. This is expected to continue.

This comes in the context of the government consultations on litigation funding and the opt-out collective proceedings regime in the CAT more generally. The output of those consultations may lead to broader reform of the collective proceedings regime in the CAT, either through legislative means or organically through the measures already being taken by the CAT.

Our prediction: We expect a more prescriptive approach from the CAT. This ought to provide a clearer sense of what it wants from parties and their advisors, both in terms of substance and procedure. In the short-term, this may lead to a reduction in the number of filings as the claimant firms and funders take stock. In the medium to long term, however, we should see a more stable, predictable and sustainable docket of cases in the CAT, potentially including the first claims and/or appeals under the Digital Markets, Competition and Consumers Act.

The use of AI

In 2025, the use of AI became more widespread across nearly all stages of the litigation lifecycle. As adoption deepened, courts emphasised the need for accuracy and professional accountability.

A persistent risk is the production of inaccurate AI‑assisted material. Courts encountered fictitious authorities, misquotations and misleading “precedents”. Judges criticised inadequate verification by advocates and/or solicitors. Consequences have included orders for wasted costs, referrals for misconduct and warnings of potential contempt.

Questions also arose about the proper use of AI in the preparation of evidence. The Bond Solon Expert Witness Survey reported that an instructing solicitor had asked an expert to work from a draft AI-generated expert report. Perhaps unsurprisingly this attracted judicial criticism. While In the United States there have been reports of deepfake video evidence being put before courts.

The Civil Justice Council has formed a Working Group on AI to consider rules governing the use of AI in preparing court documents. Proposals are expected to include mandatory disclosure of AI use, certification of human oversight, and limits on AI‑generated expert evidence, likely prompting closer scrutiny of drafting practices throughout 2026.

Judicial use of AI also advanced. Updated guidance permits secure, court‑approved tools for limited administrative functions, while prohibiting reliance on AI for legal reasoning or evaluation of evidence.

Our prediction: We expect to see guidance emerging in 2026 which strikes a balance between capitalising on the time and cost efficiencies that AI can help achieve while securing the fair administration of justice and protecting the rule of law which the proliferation of irresponsible AI-use threatens. As the use of AI in litigation continues to grow, we consider that it is only a matter of time before the courts are called on to address how our use of AI interacts with the law on legal professional privilege.

Greenwashing

Greenwashing has shifted from reputational risk to a live enforcement issue in the UK as regulators tighten expectations. Three forces are converging: the Financial Conduct Authority’s sustainable finance regime, the Competition and Markets Authority’s enforcement of environmental claims, and the Advertising Standards Authority’s stricter rulings on “green” marketing. Together, they are reshaping how firms substantiate, present and govern environmental claims.

The FCA’s anti‑greenwashing rule, in force since May 2024, applies to all authorised firms and requires sustainability references to be consistent with a product’s characteristics. They need to be clear, fair and not misleading. It sits alongside the FCA’s Sustainability Disclosure Requirements and Investment Labels, which impose naming and marketing constraints and require evidence‑based narratives. Supervisory scrutiny extends beyond funds to wealth managers, insurers and banks, with the FCA challenging vague claims and misalignment between headline marketing and underlying assets or policies.

In parallel, the CMA has shifted its Green Claims Code from guidance to action. Investigations across fashion, FMCG and travel have secured commitments on clearer comparative claims, qualifications and eco‑badges. The Digital Markets, Competition and Consumers Act 2024 expanded the CMA’s powers, introducing direct civil penalties for misleading environmental statements of up to 10% of global turnover.

The ASA complements this with a high bar for substantiation—particularly for absolute terms such as “sustainable” or “environment‑friendly” and for “carbon neutral”—as seen in recent rulings against Nike, Lacoste and Superdry. Regulators show little tolerance for ambiguity, small‑print caveats or unverifiable, non‑product‑specific claims.

Litigation risk is rising, with shareholder and consumer actions framed around misrepresentation and unfair practices. Litigation underwritten by funders, and forthcoming sustainability reporting standards will likely harden evidentiary expectations and expose inconsistencies.

Our prediction: Enforcement will become more coordinated, with AI used to detect non‑compliance. Penalties and remedies will bite, elevating greenwashing to a board‑level priority issue. Scrutiny will move from product marketing to enterprise governance and supply chains. EU rules will intensify cross‑border pressures and accelerate alignment of standards. Continued focus on climate and sustainability litigation by civil society organisations means greenwashing litigation risk will remain on the radar for companies, notwithstanding political opposition from the current government of the United States.

Authors: James Levy, Partner; Tim West, Partner; Tom Cummins, Senior Counsel; Catrin Southgate, Senior Associate; Max Strasberg, Senior Associate; Aaron Marchant, Senior Associate; Harriet Martin, Associate; Miran Bahra, Associate