Keith Thomas, Laura Jenkins and Harry McGowan have contributed to the Securities Litigation chapter of the 2020 edition of Lexology’s Getting the Deal through, covering England and Wales.
The Securities Litigation section provides a comparative guide to the mechanisms and procedures surrounding securities litigation covering:
- Claims
- Defence, remedies and pleadings
- Liability
- Collective proceedings
- Funding and costs
- Investment funds and structured finance
- Cross-border issues
- Alternative dispute resolution
- The guide compares the position in different jurisdiction, and the Securities Litigation chapter covers Canada, China, Germany, Greece, India, Ireland, Netherlands, Nigeria, Switzerland, UK and USA.
Keith, Laura and Harry have also provided key updates from the jurisdiction for this edition, focusing on Brexit and a decision in the Tesco Litigation regarding title to sue. These are outlined as follows:
Brexit
The UK has now left the European Union. For as long as the transition period remains in force (ie, until 31 December 2020), the status quo in relation to securities litigation is preserved. The extent to which there will be changes in the future will depend upon the exact provisions the UK and the European Union negotiate following the end of the transition period. As at February 2020, it is unclear what form any changes will take.
Tesco Litigation – title to sue
Tesco made an application ([2019] EWHC 2858(Ch)) to strike-out the claimants’ claims on the basis that they did not have proper title to sue. As the shares of Tesco were all held in dematerialised form through CREST using custodians, Tesco’s primary argument was that any claimant holding their shares in a custody chain with more than one intermediary did not have an ‘interest in securities’ within the meaning of paragraph 8(3) of Schedule 10A of the Financial Services and Markets Act (FSMA) and therefore did not have title to sue.
The court held that the nature of the claimants’ interest pursuant to the custody chain was ‘a right to a right’, which was unaffected by the insolvency of any of the intermediaries in the custody chain and hence equated to an equitable proprietary interest in the shares. This judgment has been well received in the investor community as it adopts a pragmatic approach to the statutory purpose underpinning section 90A and Schedule 10A of the FSMA. Indeed, if the judgment had gone in Tesco’s favour, it would have prevented the vast majority of future securities claims from being brought.
Lexology Getting the Deal Through provides legal guides for 112 specialist practice areas, covering 150 jurisdictions. Through the platform, you can directly compare law and regulation between jurisdictions and create tailored reports.
The book is available in print, and as an e-book and online. The UK chapter by our team can be downloaded here: Securities Litigation UK – Lexology Getting the Deal Through.
To view the full version of the guide, please visit the Lexology Getting the Deal Through website.
You can find further information regarding our expertise, experience and team on our Commercial Litigation pages.
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