Wirral Council (As Administering Authority of Merseyside Pension Fund) v Indivior PLC

The Court of Appeal dismissed the appeal against the Commercial Court judge’s decision to strike out representative proceedings brought under CPR 19.8 on behalf of investors alleging fraudulent statements and dishonest omissions in published information under sections 90 and 90A and Schedule 10A of the Financial Services and Markets Act 2000. The court reiterates that the grant or continuation of representative proceedings is a discretionary exercise under CPR 19.8 to be governed by the overriding objective. Where feasible multi-party proceedings exist, the court must weigh the comparative case-management advantages of each route rather than apply a presumption in favour of representative claims, even in light of Lloyd v Google. Important considerations included the statutory reliance requirement in section 90A, the risk that bifurcation would leave many represented persons with no sustainable cause of action, the need to avoid speculative or "book-building" litigation, and the defendants’ ability to secure early case-management steps (sampling, particularisation, disclosure or strike-out) in multi-party proceedings.

Background and parties. The claims arise from alleged misconduct in relation to Suboxone and an alleged scheme to extend patent protection. Indivior (and connected Reckitt entities) were the defendants. Wirral commenced representative proceedings under CPR 19.8 seeking declarations on common issues under sections 90 and 90A and Schedule 10A of FSMA and relied on the Supreme Court’s reasoning in Lloyd v Google to adopt a bifurcated process (common issues first; individual issues such as reliance, causation and quantum later). Parallel multi-party proceedings were also issued and stayed pending this appeal.

Nature of the application and procedural posture. The defendants applied to strike out the representative proceedings. Michael Green J in the Financial List struck out the representative claim ([2023] EWHC 3114 (Comm)). Wirral obtained permission to appeal and the Court of Appeal heard the matter.

Issues for decision.

• Whether representative proceedings under CPR 19.8 are an appropriate procedure for claims under sections 90/90A and Schedule 10A of FSMA where parallel multi-party proceedings exist.
• How Lloyd v Google and Prudential bear on the availability of a bifurcated representative procedure and the extent of the court’s case-management powers when a claimant seeks to confine stage 1 to common issues.
• Whether the judge erred in (a) treating multi-party proceedings as a viable alternative, (b) finding insufficient evidence that retail investors could not pursue their claims by the ordinary route, and (c) assessing the relevance of funding arrangements.

Court’s reasoning and result. The Court of Appeal upheld the judge. It emphasised that the rule in CPR 19.8 confers a discretion to be exercised in accordance with the overriding objective; there is no automatic presumption favouring representative proceedings simply because the "same interest" threshold is met. The court accepted that Lloyd v Google promotes use of representative procedure in appropriate cases but does not displace the need for the court to compare available procedures and to preserve its case-management powers. The judge was entitled to take into account (inter alia) the statutory reliance requirement in section 90A, authorities showing that sensible case management in securities claims commonly requires some parallel progression on claimant-side issues, the risk of speculative or subscription-based "book-building" by funders, the lack of a cogent explanation from funders why retail claimants were excluded from the multi-party proceedings, and the usefulness of sampling/particularisation and early strike-out in multi-party litigation (illustrated by other cases). On that basis the judge’s exercise of discretion was within its generous ambit and the appeal was dismissed.

Wider implications. The court stressed that representative proceedings remain an important flexible tool, particularly where multi-party litigation is impractical; but where an effective multi-party route exists the court should weigh which procedure best furthers the overriding objective and preserves appropriate case-management controls.

Appeal dismissed. The Court of Appeal held that the judge had correctly exercised the unfettered discretion under CPR 19.8 in accordance with the overriding objective. In circumstances where parallel multi-party proceedings were available and where reliance (a statutory ingredient under section 90A) could mean many represented persons have no claim, permitting Wirral to press a bifurcated representative route that would preclude the court making early case-management orders (sampling, particularisation, disclosure or strike-out) was not appropriate. The judge’s concern about the funders’ lack of transparency and the risk of "book-building" reinforced that the representative procedure should not oust the court’s case-management powers; his decision was within the generous ambit of discretion and was therefore upheld.

Appeal from the High Court of Justice, Business and Property Courts (Commercial Court, KBD, Financial List) — Michael Green J ([2023] EWHC 3114 (Comm)). Permission to appeal granted by Males LJ. Appeal determined in the Court of Appeal ([2025] EWCA Civ 40).