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Court of Appeal upholds striking out of representative action in Section 90/90A FSMA securities claims

23/01/25

The Court of Appeal has dismissed an appeal against the judgment of Michael Green J, who held that certain securities claims brought in a representative capacity cannot continue in that form.

Wirral Council brought claims against Reckitt Benckiser plc and Indivior plc under s. 90A and Schedule 10A (and, in the case of Indivior plc, s.90) of the Financial Services and Markets Act 2000 (“FSMA”). Wirral brought its claims in a representative capacity, on behalf of an ‘opt-in’ class of represented persons who both owned or dealt with relevant securities at the relevant time, and agreed to costs sharing and governance terms with Wirral’s solicitors and funders. Wirral’s claim was solely for declarations on issues relevant to the Defendants liability. Wirral’s stated intention was that, if it succeeded in obtaining those declarations, then individual represented persons would be able to bring claims for damages in which they would benefit from those declarations. The same institutional investors who had opted in to be represented by Wirral also brought conventional multi-party claims against Reckitt and Indivior, which were said to be brought on a protective basis in case the Court decided that the representative actions should not proceed.

Reckitt and Indivior each applied for an order under CPR 19.8(2) that Wirral Council may not act as a representative, and that the representative claims against them be struck out. At first instance, Michael Green J allowed those applications and struck out the representative proceedings.

Wirral appealed. In a judgment handed down on 23 January 2025, the Court of Appeal (the Chancellor, Nugee LJ and Falk LJ) unanimously dismissed that appeal. The Court held that Green J had been entitled to exercise his discretion as he did, and held that the continued pursuit of the claims by way of the multi-party proceedings (which remain on foot) was feasible and in accordance with the overriding objective.

The Court of Appeal’s judgment can be found here.

Helen Davies KC, Tony Singla KC and Jonathan Scott appeared for the successful respondent Reckitt Benckiser plc, instructed by Linklaters partners Harriet Ellis and Andrew Poulton.