In the new Lexology Panoramic guide to Securities Litigation (formerly known as Getting the Deal Through), Keith Thomas, Harry McGowan and Elisa Wahnon provide an overview of securities litigation in the United Kingdom in 2024.
Lexology PRO subscribers can access the full 2024 guide and directly compare information on securities litigation in jurisdictions including France, Germany, India, Japan, the Netherlands, Nigeria and the USA.
The themes discussed in the UK chapter include:
- The types of securities claim available to investors
- Commonly asserted defences
- Requirements to adequately plead a claim
- Primary and secondary liability
- Circumstances which allow for collective proceedings
- Options for claim funding
- How the courts deal with jurisdiction
- Alternative dispute resolution
Introduction – the current climate of securities litigation
There has been a significant increase in the amount of private securities litigation being pursued in respect of publicly listed securities through the courts of England and Wales and this trend shows no sign of abating. This litigation has been pursued under the remedies provided by the statutory regime of section 90 and section 90A/Schedule 10A of the Financial Services and Markets Act. The law and how these cases are managed by the courts in this area is continuing to develop as cases pass through the courts.
The combined jurisdiction of England and Wales does not presently have a US-style opt-out class action system. However, within the civil procedure rules, there is the ability to bring a representative action. This procedure allows a single claimant to bring a claim as the representative of a larger group of claimants with the same cause of action against the same defendant. However, the representative must satisfy the ‘same interest’ test, which the courts have construed narrowly, and any claim that requires an assessment of each claimant’s damages has failed this test.
Following the Supreme Court judgment in Lloyd v Google LLC [2021] UKSC 50 in 2022, it appeared the court was opening the door to claimants bringing securities claims via a representative action on a bifurcated basis, similar to the procedure in New Zealand. This would have involved the common issues, typically defendant liability, being brought as a representative action in a first trial with a further trial to follow dealing with individual issues, including damages.
However, in the first case brought before the High Court on this basis, Wirral Council v Indivior PLC [2023] EWHC 3114 (Comm), the court struck out the representative action. The court decided on the case’s specific facts that the claims could only be brought by way of multi-party proceedings, with all parties having to be named in and parties to the proceedings. It remains to be seen whether the appellate courts will take a more flexible approach and/or whether legislation will be enacted to create some form of class action system based on the representative action.
You can find further information regarding our expertise, experience and team on our Securities Litigation page.
If you require assistance from our team, please contact us.
Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.
