One of the central elements of a successful claim under section 90A of the Financial Services and Markets Act 2000 (“FSMA”) is proving that a claimant relied on the published material in question. This is in contrast to claims brought under section 90 FSMA, which have no such requirement. In this article, Lorraine Lanceley, Harry McGowan and Tom Otter review the recent Privy Council decision in Credit Suisse Life (Bermuda) Ltd v Bidzing Ivanishvili and ors [2025] UKPC 53 (“Ivanishvili”) and considers what impact this may have on future FSMA claims.

The recent judgment in Ivanishvili looks set to redraw the common law test for deceit, which may, in turn, impact the reliance limb of an s90A FSMA claim.

Barclays and Standard Chartered decisions

What constitutes reliance in s90A FSMA claims is yet to be decided at Court of Appeal or Supreme Court level, so for now, parties are reliant on the differing first instance judgments in Allianz & Ors v Barclays (which we wrote about here) and Standard Chartered (which we wrote about here). In Barclays, the judge held that a claimant must have read or considered the relevant information. In Standard Chartered, the judge (partly as a matter of case management) refused Standard Chartered’s summary judgment application and referred the issues to trial. He accepted that reliance is a “live and possibly developing area of law” and expressed doubt as to whether the common law test for reliance (as adopted by the judge in Barclays) was intended to constitute the reliance requirement for s90A FSMA claims.

The Barclays judgment was significant. As we previously reported, it resulted in swathes of claims by passive funds being struck out. If followed more widely, it could result in a large percentage of investors being unable to avail themselves of the protection offered by s90A FSMA. While many thought the Barclays decision would be appealed, the case settled shortly after the first instance judgment and, as such, this important point has yet to be tested by the Court of Appeal. We may not have long to wait, though, for the Court of Appeal to weigh in on the debate, given that permission has been granted to appeal the Standard Chartered decision. This is due to be heard in January 2026.

The test for deceit

The Barclays judgment was, in part, a result of the broad direction of travel of the court rulings at first instance for deceit. These had, to put it broadly, resulted in a test (often referred to as the “awareness requirement”) that provides a claimant must have actively turned their mind to the representation when acting on it. For s90A claims, at the time of the relevant investment, they must have understood the representation for their claim to succeed (for example, Leeds City Council [2021] EWHC 353 (Comm) and Loreley [2023] EHC 2759 (Comm)).

That test set a high bar for claimants to meet and provided technical opportunities, often exploited by defendants, to undermine a claimant’s case. For example, if a claimant had not given any conscious thought to a representation but rather made an assumption that was not based on active thought about the representation, then their claim would likely fail even if they had still been influenced by the representation. That test sat uncomfortably with the factual realities of life and human behaviour and has attracted academic criticism accordingly.

Ivanishvili decision

The decision in Ivanishvili indicates that the direction of travel had gone off course, and Lord Leggatt, in his judgment, has now reoriented it, so that it is now back on the correct path.

The Privy Council highlighted the issues with the reliance test as it stood, criticised the misconceptions underlying the test and pointed to real-world examples that may not have met the test. Lord Leggatt gave instances of situations where a representation is made, but the claimant might have not be aware of it, such as a waiter who serves a customer in a restaurant without stopping to think that the customer has, by ordering, represented that they could pay for the meal or a cab driver who picks up a passenger or an auctioneer accepting a bid.

In particular, the Privy Council held that awareness and assumption are “not mutually exclusive”. Lord Leggatt focused on the causative result of the representation, noting that what matters “is whether, in a case where the claimant has acted on an assumption, the assumption was one which the claimant would naturally be expected to make in response to the defendant’s words or actions”.

Critically, and in contrast to the recent run of first instance cases referred to above, the Privy Council held that it is not a legal requirement of a deceit claim that a claimant is either aware of the representation nor that they understood the representation to have been made.

Lord Leggatt confirmed that reliance or inducement is an essential element of a claim for deceit (or other claim for damages for misrepresentation). He stated that there are two aspects to the requirement:

1. The first is that the representation must have deceived the claimant by causing them to hold a false belief (“reliance in belief”).
2. The second is that the claimant must, as a result of holding that false belief, have acted so as to suffer loss (“reliance in action”).

Both aspects of reliance require the representation to operate on the mind of the claimant. But neither logically requires the claimant to be consciously aware of the representation at the time when the claimant acts on it. Nor is there any good reason to insist on such an additional requirement.

Possible impact of the decision on FSMA claims

This judgment has significant implications for common law deceit cases as it lowers the threshold a claimant has to meet. It is, however, less clear what the impact of Ivanishvili will be on s90A FSMA claims given that the first instance decisions in Barclays and Standard Chartered adopted different approaches and s90A is a statutory cause of action with qualifying words that provide a claimant must show, in short, that it acted in reliance on the information in question when it was reasonable for them to so rely on it. As noted above, the Standard Chartered decision is due to be appealed in January 2026, so it will not be long before the Court of Appeal is required to grapple with these issues.

As to the impact of Ivanishvili on FSMA cases involving omissions from published information, the judgment appears to cast doubt on Barclays and on the requirement to have read the published information. As Lord Legatt highlighted, the key fact in Gordon v Sileco Ltd (1986) 18 HLR 219 (a case about dry rot) was that the defendant had taken action to deceive, specifically to cover up the dry rot. Under Schedule 10A FSMA, an issuer is only liable for omissions if a person discharging managerial responsibility (for almost all listed companies, this will need to be a director) knew the omission to be a dishonest concealment of a material fact. It is difficult to see how concealing a material fact is any different to concealing dry rot, so this judgment will be welcomed by index and passive funds.

However, the more practical and common sense approach taken by the Privy Council suggests there may be scope for a more sensible approach to reliance as it applies to claimants, such as index/tracker funds. Such funds may have reasonably operated on the assumption and belief that the information published to the market was correct and was fully embedded in the market price. This is a point that is likely to be tested again in court (as early as January 2026) and may, in time, mean that s90A FSMA functions as intended for the benefit of all investors.