5 | Statutory securities claims: an evolving picture

We continue to see a number of substantial claims relating to misleading statements or omissions in listing particulars (section 90 of FSMA) or misleading statements, omissions and/or dishonest delay in other disclosures (section 90A/schedule 10A of FSMA). These actions commonly arise following the discovery of underlying corporate misconduct such as bribery, sanctions breaches, money-laundering or deficiencies in financial reporting that ultimately cause a significant fall in the share price.

By their nature, these claims often lend themselves to collective actions brought by both retail and institutional investors – frequently with the support of third-party funding. However, whilst efficiencies may be gained through collective proceedings, such claims are not without their own complications. Circumstances may vary significantly within the claimant group, even when comprising investors in the same securities.

In Wirral Council v Indivior plc[1], the Court of Appeal upheld the strike-out of a representative action under CPR 19.8 which sought to address common issues regarding liability first, and claimant-specific issues such as reliance and quantum at a later hearing. The Court of Appeal held that this bifurcated approach was an improper use of the representative procedure, as it would unfairly circumvent the need for each claimant to prove reliance and causation, and that the claims should instead be pursued in multi-party proceedings. Permission to appeal was refused by the Supreme Court – with the practical implication being that many section 90A claims will need to be managed as multi-party or group actions, rather than representative claims. The decision also underlines the importance of understanding at the outset the various claims within the investor base and how any differences are likely to affect the pleadings, evidence, case-management strategy and, potentially, funding and settlement.

Investors continue to seek to advance claims under the broader head of 90A/10A of FSMA – with ongoing claims against defendants such as Boohoo Group, Glencore, and Entain stretching to the hundreds of millions. Whilst the current form of s.90A and schedule 10A of FSMA was introduced over 15 years ago, considerable uncertainty persists regarding its scope and application. A critical issue in these disputes remains how claimants establish reliance on the relevant statements – with judges taking strikingly different approaches:

• In Allianz Funds Multi-Strategy Trust and ors v Barclays plc[2], the court appeared to close the door on passive investors bringing US-style “fraud on the market” claims under section 90A/Schedule 10A – holding that investors who could not demonstrate that they had read or otherwise were aware of the relevant false or misleading statements lacked a real prospect of establishing reliance under paragraph 3 of Schedule 10A and striking out their claims.
• By contrast, in Persons Identified in Schedule 1 v Standard Chartered plc[3] the court declined to strike out similar claims brought on a “fraud on the market” basis. While “not convinced” that Allianz Funds v Barclays was wrongly decided, it held that the appropriateness of price/market reliance and the requirements for dishonest delay under paragraph 5 of Schedule 10A should be resolved on the basis of the actual facts established at trial rather than at the strike-out stage. Standard Chartered was granted permission to appeal the decision but the parties reached a global settlement in December 2025 shortly before the appeal was due to be heard.

It remains to be seen whether November’s Privy Council decision in Credit Suisse Life (Bermuda) Ltd v Bidzina Ivanishvili potentially bolsters arguments in favour of “fraud on the market” claims under section 90A of FSMA – given its rejection of a requirement to establish actual awareness of a misrepresentation in deceit claims generally.