Jenny Morrissey and Edward Argles have written an article on the structuring of funding in representative securities claims for the April 2024 edition of Litigation Funding magazine.
The article reviews developments in representative securities claims since the Supreme Court judgment in Lloyd v Google [2021] UKSC 50, which raised the possibility of a ‘bifurcated’ approach to bringing claims on behalf of a class of affected parties on through the representative procedure set out in Part 19 of the Civil Procedure Rules. A bifurcated approach is where issues relating to liability are determined on a representative basis in the first instance, and other issues such as loss and damage are determined at a later stage on an individual basis.
The article considers the recent High Court decision in Wirral Council as Administering Authority of Merseyside Pension Fund v Indivior PLC [2023] EWHC 3114 (Comm), in which the Court refused to allow two representative securities claim to proceed, and the later Court of Appeal decision in Commission Recovery Ltd v Marks & Clerk LLP & Anor [2024] EWCA Civ 9, in which the Court rejected a challenge to a first instance decision to allow a claim to be brought on a representative basis.
The role of the funder in the structuring of the claim in Wirral Council features prominently in the judgment, and the Court seems to have been concerned about how the funder was potentially influencing the way in which the claims were being pursued.
The April 2024 edition of Litigation Funding can be accessed via the Law Society Gazette website here.
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