SCHEDULE 10A LIABILITY OF ISSUERS IN CONNECTION WITH PUBLISHED INFORMATION
5(1)An issuer of securities to which this Schedule applies is liable to pay compensation to a person who—
(a)acquires, continues to hold or disposes of the securities, and
(b)suffers loss in respect of the securities as a result of delay by the issuer in publishing information to which this Schedule applies.
(2)The issuer is liable only if a person discharging managerial responsibilities within the issuer acted dishonestly in delaying the publication of the information.
(a) section 102A(1), (2) and (6) (meaning of “securities” and “issuer”);
Defined in Sch.10A para.8(6) · see it in the full Act(a) “securities” means transferable securities as defined in Article 2(1)(24) of the markets in financial instruments regulation, other than money market instruments as defined in Article 2(1)(25A) of that regulation that have a maturity of less than 12 months (and includes instruments outside the United Kingdom);
Defined in Sch.10A para.8(1) · see it in the full Act(a) section 102A(1), (2) and (6) (meaning of “securities” and “issuer”);
Defined in Sch.10A para.8(6) · see it in the full Act(5) For the purposes of this Schedule the following are persons “discharging managerial responsibilities” within an issuer—
(a)any director of the issuer (or person occupying the position of director, by whatever name called);
(b)in the case of an issuer whose affairs are managed by its members, any member of the issuer;
(c)in the case of an issuer that has no persons within paragraph (a) or (b), any senior executive of the issuer having responsibilities in relation to the information in question or its publication.
Defined in Sch.10A para.8(5) · see it in the full ActApplies the paragraph 5 claim requirements concerning dishonest delay in publishing correct information and confirms that reliance is not required for that claim. (see paras [15]-[16])
The court declined to accept summarily that paragraph 5 requires the issuer eventually to publish corrective information. The wording, legislative purpose and overlap with paragraph 3 required examination against the actual facts at trial (see paras [94]-[120]). Paragraph 5(1) was read as imposing liability for loss resulting from delay by the issuer in publishing information to which Schedule 10A applies. The court held that the provision did not clearly require a later corrective publication and left the construction for trial (see paras [97]-[108], [117]-[120]). The judgment records that paragraph 5(1)(a) requires acquisition, continued holding or disposal of securities. The application did not turn on that element, which was not finally determined (see para [97]). The court focused on whether the phrase information to which Schedule 10A applies required a later publication by recognised means. It found substantial arguments against that construction and declined to decide the issue summarily (see paras [98]-[108], [117]-[120]). The judgment records that paragraph 5(2) makes issuer liability conditional on dishonest conduct by a person discharging managerial responsibilities in delaying publication. The distinction between dishonesty concerning delay and dishonesty concerning publication contents was noted but not finally determined (see paras [97], [109]-[112]).
Paragraph 5(1) applies to delay by an issuer in publishing information to which Schedule 10A applies. The relevant information must ultimately have been published or its availability announced by recognised means; permanent non-publication is outside the provision (see paras [138]-[145]). Paragraph 5(2) imposes liability only where a person discharging managerial responsibilities acted dishonestly in delaying publication. The claimants’ pleaded non-publication case could not satisfy this statutory condition (see paras [138]-[145]).
What each judgment says about Schedule 10A, paragraph 5 is in the case-law panel in the full Act.