Michelmores’ Corporate team has advised the leading Cerebral Palsy charity, Paces Sheffield on its bond offer which is currently being promoted by Triodos Bank and was launched on their crowdfunding website in June. Investors are invited to support the specialist school which offers life-changing skills for children with Cerebral Palsy and other neurological motor disorders. The bond offer will raise capital to support the charity’s ambitious growth plans including a new premises which will enable the school to increase its capacity by 75%.

The team has also advised Mama Bamboo on its EIS share offer, likewise listed on Triodos’ website. Mama Bamboo’s award winning sustainable baby products are made using 100% compostable bamboo fibre and the company is the only UK nappy brand to be B-Corp certified. The company aims to raise over £500,000 to support the marketing and technology required to accelerate sales growth. As an early stage and growth company, Mama Bamboo’s share offer qualifies under the EIS tax relief scheme, as assured by HMRC in May.

Corporate partner, Alexandra Watson led the Michelmores team with support from Adam Quint and Jess Hopkins.

Alex said:  ‘It was a pleasure to support both Paces Sheffield and Mama Bamboo to bring their investment opportunities to market on the Triodos website. The response from investors has already been positive and we look forward to continuing to monitor the individual offers and seeing the progress made in the corresponding growth plans.’

The valuation of rural mast sites under the Electronic Communications Code (“New Code”) has been under the spotlight again with a new decision from the Upper Tribunal in the case of ON Tower UK Limited v JH & FW Green Limited [2020].

The site in question was let on a contracted out 1954 Act lease with provisions which allowed the operator to share and upgrade the site, subject to “payaway” terms to the landlord.

The landlord accepted that the operator had the right to a New Code agreement but the issues in contention were:

• What equipment can the operator install;
• Should the operator’s right to upgrade equipment be limited;
• Should the operator’s right to share the site be limited; and
• What is the correct rent taking these 3 issues into account.

Equipment

The operator wanted freedom to add equipment to the site, whereas the landlord wanted to maintain the status quo, having taken a careful inventory of current equipment.

The landlord was willing to allow sharing and upgrading, but only on a strict interpretation of para 17 of the New Code, so that the changes had to have a minimal adverse impact on the visual setting and impose no additional burden on the landowner (burden meaning an additional adverse effect on enjoyment of the land or loss, damage or expense).

However, these New Code rights only form the statutory skeleton for the agreement between the parties. They are restricted rights and if any meat was to be added to these bones it had to be by way of negotiation or direction of the Upper Tribunal.

The operator’s position was that they were in the business of providing the infrastructure for broadband and mobile phone connections. Upgrading and sharing without limitation was essential, because technology and the market were moving quickly and unpredictably. This concern was exacerbated by the Court of Appeal’s decision in Compton Beauchamp[1] where it ruled that an operator cannot go back to the Tribunal for additional rights once an agreement is imposed.

The landlord had obvious concerns about the roll out of 5G, which requires larger and noisier equipment. Given the operator’s desire to go beyond the basic statutory right, the Tribunal had to consider the evidence from both parties.

The operator acknowledged that the 5G roll out would require a new mast, but argued that the South Downs National Park status of the site would act as a sufficient control.  The landlord stated its concerns about additional traffic, security risks, disturbance, visual appearance and radiation.

The Tribunal had to engage in a balancing exercise to determine the terms of the agreement. Under the New Code it may (not “must”) grant a New Code right, providing that the relevant conditions were met. These conditions are set out in paragraph 21 and are that the prejudice caused to the landlord must be able to be compensated by money and be outweighed by the public benefit that will ensue from the grant of the right. Further, New Code rights are not absolute and may be the subject of terms to ensure that the “least possible loss and damage is caused by the exercise of the code right.”

In exercising this discretion the Tribunal were not convinced that the site’s appearance would change drastically with the upgrade to 5G given its small size (70 sq ft), although acknowledged the other concerns of the landlord were relevant, albeit exaggerated. In any event, disturbance, noise and access issues were addressed in the proposed new lease, so any breach would entitle the landlord to damages or, where necessary, injunctive relief. The Tribunal did not, therefore, see a need to modify the rights to cause the least possible damage to the landowner arising from the grant of upgrading rights, which go beyond the basic terms of paragraph 17.

Site sharing

The Tribunal then had to consider the right to share the site.  This could not be done on the same basis, as sharing is not a New Code right; the Tribunal has discretion to grant a right to share on such terms as are appropriate to ensure that the least possible loss and damage is caused to the landlord. A balance has to be struck between enabling the operator to share the site in order to provide a high quality telecommunications service and the objections of the landlord.;

The operator in this case was an infrastructure provider (rather than a network operator) so its equipment (masts, cabinets and other equipment) were passive. The operator had to be able to share with any network operator or it could not continue its business.  The Tribunal decided the landlord’s objections were not well founded, so granted the operator an unrestricted right to share. The paragraph 17 conditions were not required, given the same safeguards of planning law and lease terms explained above.

Consideration & Compensation

The Tribunal confirmed the approach taken in the Islington[2] case, where any compensation for predictable loss and damage was included in the assessment of consideration, to avoid inevitable subsequent claims. This does not stop a landowner making later claims under paragraph 25, but a second bite only exists for those litigating and is not available if a deal is reached by agreement.

The Tribunal continued in assessing consideration by adopting a framework previously used in the Hanover[3] and London and Quadrant[4]cases:

1. Assess the alternative use value of the site, which would be the rental value of its current use or of the most valuable non-network use. This process would be heavily influenced by location and be a matter of evidence in each case;
2. Add a rental value to reflect any additional benefits conferred on the operator – in Hanover, the site was protected by a manned security gate; and
3. If the letting would have a greater adverse effect on the willing lessor, than the alternative use, on which the existing use value was based, then this should be reflected by a rental adjustment.

This case was the first one arising on a lease renewal, as opposed to a new agreement for a previously undeveloped site. The operator’s expert determined a rental value of £500 p.a. after carrying out the 3 stage process, with half the value attributed to stage 3, to reflect a rolling break clause after 5 years and a right to enter other landlord’s property.

Comparables

Comparable evidence of other rural sites on similar lease terms was also considered by the expert.  Of these 23 renewal agreements, 16 of them contained caveats which made clear that the operator in each case was agreeing a rent higher than that which would be determined by a Tribunal in accordance with paragraph 24 of the New Code.

As such, the expert considered the comparables to be unreliable in terms of arriving at a true paragraph 24 valuation. They were also considered to be too high because they were a blend of consideration and compensation, so the expert deducted the value of what he called an “incentive payment” made by the operators to oil the wheels of commerce.

These deductions were around £1,000 in each case and resulted in rental values of £500 for 16 sites and £1,000 for a further 4, with outliers at greater sums of £1500 and £3,000 for 4 further sites.

Landowner’s expert’s approach

The Landowner’s expert took two approaches to the valuation. The first was market value based on evidence of 15 transactions.  The Tribunal rejected 11 of these, as they were deals that were completed after the New Code came into effect, but implemented terms that reflected the old regime, to which the parties were contractually committed.

The Tribunal pointed out, that in both Hanover and London and Quadrant, evidence of this sort could not be taken as a reliable guide to no-network assumption valuations required by paragraph 24. The expert’s justification for persisting in presenting such evidence was that further research had shown that the rents were, despite the caveat, actually calculated on the basis of the New Code.

This argument was rejected by the Tribunal in terms that thinly disguised its exasperation at having to explain for a third time that such evidence is useless.

The remaining transactions were also not helpful, as they were either 1954 Act renewals to non-Code operators, urban sites or sites with significant alternative use value. The landowner’s expert figure was £5,500 based on these comparables, with an additional £1,500 pa to reflect the grant of access and use of a generator.

The second approach valued the alternative use of the site at £50, with an ultimate consideration of £7,800 pa. This was based on agreements granting access rights to third parties like Network Rail and Northumbrian Water, the granting of non-network benefits by the landowner and compensation to reflect health and safety concerns.

The Tribunal found the evidence presented by the landowner’s expert to be of very little help, with both his proposed valuations being higher than the passing rent. The Tribunal said that this told them that the expert had not accepted or understood the paragraph 24 valuation process.  Under lengthy cross examination the expert remained insistent that his evidence was relevant and the Tribunal fired a clear warning shot in saying that if this happened again, such evidence would be rejected without the need for further cross examination.

Operator’s expert’s approach

In contrast the operator’s expert evidence pointed to the fact that rents of £1500 or above were the norm, ignoring the effect of transitional incentive payments. These were commercial deals struck to avoid the cost of Tribunal proceedings and do not reflect the paragraph 24 reality.

However, the Tribunal considered that the operator was underestimating consideration values and overstating how much was paid as a commercial inducement – a doubling of the consideration was thought to be more realistic.

Tribunal’s approach

Taking the 3 stage approach set out above:

1. The experts agreed a nominal £100 pa alternative use value;
2. Additional benefits conferred on the operator included a right to keep a mast on the site, electric supply, right to enter other property of the landowner and tenant’s rolling break clause after 5 years. The operator said £400, the landowner said £1300 and the Tribunal ruled £600; and
3. Adverse effect on landowner was considered by the Tribunal to be caused by the access rights (to the “heart of a private rural estate”) and the loss of amenity caused by likely replacement of the mast for 5G upgrade purposes. This was valued by the Tribunal at £500, although it stated that if rents of nearby properties were negatively affected, this could form the basis of a subsequent compensation claim.

The cumulative consideration was therefore £1200 pa, which seems right when considered against a comparable put in evidence comprising a consensual deal at £2,500 for a similar wooded site on a rural estate. Compensation was awarded for legal and professional fees. The legal fees were allowed in full but a breakdown of the valuer’s fees was required as the landowner was not entitled to be reimbursed for any litigation related expense.

Our Natural Capital hub contains information and resources written by our team of experts as well as papers and online materials authored by a variety of sources including the UK Government, the UN, Conservation International and the World Forum on Natural Capital.

The International Integrated Reporting Council (IIRC) is a global coalition of regulators, investors, companies, standard setters, the accounting profession, academia and NGOs. The coalition promotes communication about value creation as the next step in the evolution of corporate reporting. and in particular promotes Integrated Reporting <IR>.

Their mission is to establish integrated reporting and thinking within mainstream business practice as the norm in the public and private sectors. Their vision is to align capital allocation and corporate behaviour to wider goals of financial stability and sustainable development through the cycle of integrated reporting and thinking. The resources tab includes useful FAQs, and the International <IR> Framework which establishes the Guiding Principles and Content Elements for integrated reporting.

To access this resource please click here: ‘Integrated Reporting Council‘.

If you have any questions about Natural Capital our Agriculture team would be pleased to hear from you: please click here for their full contact details.

To access our Natural Capital hub, please click here.

For Multi Academy Trusts (MATs), a variety of information must be published on its main website as well as each Academy’s website. Whilst some MATs are operating under multiple Funding Agreements, we recommend that you publish everything required under the latest DfE model Funding Agreement as well as the Academies Financial Handbook. This will need to include any charging information.

On the MAT website, an Academy must publish:

• its annual accounts no later than the end of January following the financial year to which the accounts relate
• its current Memorandum & Articles of Association and Master Funding Agreement
• the required information relating to governance structures, including for example the structure and remit of the members, board of trustees, its committees and local governing bodies, and the full names of the chair of each (where applicable)
• information about its Pupil Premium, including for example the amount of Pupil Premium allocation that it will receive during the Academy Financial Year
• if received, information about its Year 7 literacy and numeracy catch-up premium funding
• various details about its curriculum, including for example the content of the curriculum and its approach to the curriculum.

On the individual Academy’s website, you must publish:

If applicable, the Academy’s most recent Key Stage 2 results as published by the Secretary of State in the School Performance Tables:

• average progress scores in reading, writing and maths
• average ‘scaled scores’ in reading and maths
• percentage of pupils who achieving the expected standard or above in reading, writing and maths
• percentage of pupils who achieving a high level of attainment in reading, writing and maths

If applicable, the Academy’s most recent Key Stage 4 results as published by the Secretary of State under the following column headings in the School Performance Tables:

• progress 8 score
• attainment 8 score
• percentage of pupils who achieving a strong pass (grade 5 or above) in English and maths
• percentage achieving the English Baccalaureate
• percentage of pupils continuing in education of training, or moving on to employment at the end of 16 to 19 study
• information about where and how parents (including parents of prospective pupils) can access the most recent report about the Academy published by the Chief Inspector
• information as to where and how parents (including parents of prospective pupils) can access the School Performance Tables published by the Secretary of State.

Finally, and by way of best practice, we recommend that each Academy’s website includes the following information: contact details, admissions arrangements, Ofsted reports, behaviour policies, values and ethos. Whilst this is not a legal requirement for academies, the information is both important and helpful!

The European Court of Justice (“ECJ”) has given a preliminary ruling on the jurisdiction of member states in relation to copyright materials published without the owner’s consent.

The Austrian case of Pez Hejduk v EnergieAgentur.NRW GmbH, Case C-441/13 concerned the use of photographs by a conference organiser on a website and the subsequent option to download these photos by website users. The owner of the photographs did not consent to this and sued the conference organiser for copyright infringement. It was argued that the Austrian Court did not have jurisdiction to hear the case on the basis that the conference’s organiser’s website had a .de domain name and was directed at German, not Austrian users.

The ECJ’s view was that under Article 5(3) of EC (44/2001) Brussels Regulation, proceedings could be brought in any member state where the relevant website was accessible. As set out in Pinckney v KDG Mediatech AG Case C-170/12, this was sufficient to seise the court, an activity did not need to be “directed” to that member state, i.e. through a country-specific, top-level domain name. However, the ECJ did make it clear that the courts where a website was accessible  could only determine damages which had been incurred within their own member states.

This ECJ decision widens the potential jurisdiction further than in previous case law as unlike in Pinckney, there is no requirement for hard copies to have been received to act as proof of damage in a jurisdiction – anyone can log onto a website and download online materials onto their own devices. It is anticipated that we will see an influx of online copyright infringement claims, as a result.

For potential claimants, this decision is likely to be welcomed as it enables claimants to rely on the jurisdiction of their own member state in order to bring a claim. However, where there has been significant damage, it is likely that the claimant would still be well-advised to sue in the defendant’s member state, to enable it to claim all damages, rather than just those in the claimant’s member state.

For website owners, this decision acts as a reminder to ensure that all content displayed and available for download  has the appropriate consents and licences in place.  This decision will be particularly significant for online users with territory-specific rights, who will now have difficulty arguing that they did not directly target an excluded territory. It is now clear that mere “accessibility” of content in an excluded territory could enable a claim to be made.

For more information please contact Charlotte Bolton, Solicitor in the Commercial Disputes & Regulatory team on charlotte.bolton@michelmores.com or on 01392 687745.

Landowners and developers will find it much more difficult to gain vacant possession of development land or sites which include residential property let on assured shorthold tenancies after 1 May 2026. Landowners and developers should check all existing, as well as any new development schemes, to ensure they will not be caught out by the changes.

With effect from 1 May this year, existing Assured Shorthold Tenancies (ASTs) will automatically become Assured Periodic Tenancies (APTs). It will no longer be possible for landowners and developers to give a simple voluntary notice to terminate APTs, as they currently do under section 21 of the Housing Act 1988 in relation to ASTs.

Currently, ASTs may be terminated upon not less than two months’ written notice followed by a court possession order if the tenant has not vacated upon expiry of the simple notice. This gives a total timescale of between two to four months before vacant possession might be obtained. Under the new APT regime, from 1 May 2026, landlords will only be able to terminate a residential tenancy where certain statutory grounds apply. These grounds are set out in Schedule 2 of the Housing Act 1988, as amended by the Renters’ Rights Act 2025.

Furthermore, a court order will be necessary to establish one (or more) of the statutory grounds. Typical timescales for gaining possession are likely to increase to between six to eight months. There may also be considerable delays to court and tribunal timetables as a large number of landlords and tenants are anticipated to bring rent review and tenancy possession proceedings under the new legislation.

These delayed timings are likely to impact development land. Typically, developers expect landowners to gain vacant possession of land within not more than three months following the grant of planning permission. This is because developers are running up against a limited time period to mobilise and implement development before planning permission expires. Greater uncertainty over timings mean that landowners should be more wary about granting residential tenancies over current or future development land. Developers may also insist upon much earlier possession being sought over such land.

What do landowners and developers need to do now?

Where residential property tenancies are granted over existing development schemes, steps should be taken before 30 April 2026 to manage the tenancy or gain early possession back from the tenant, as after this date section 21 notices will not be able to be served. Landlords will also need to serve an ‘information sheet’ (to be published by the Government in March) on their existing residential AST tenants before 31 May 2026.

New APT tenancies (granted after 1 May 2026) must contain specific details about the tenancy – the Government are due to publish the details of these in January 2026. There are also statutory controls on the level of rent that may be required under such tenancies.

Landlords and developers should be aware of the changes coming into effect on 1 May 2026 and take professional advice on any residential tenancies that they consider could affect a development scheme sooner rather than later, to avoid running into any issues with regaining possession.

Michelmores property teams are working closely with landlords to prepare for the changes being brought about by the change in legislation.

Over the last 12 months there have been four key areas of development in securities litigation in England & Wales:

1. First, there is continued debate over what is required from investors in terms of showing reliance on the relevant misleading statements on which a claim is based, and as part of this, whether passive investors are precluded from participating in claims because of the specific difficulties they face in satisfying any requirement to show reliance.
2. There have been attempts by claimants (and law firms and litigation funders supporting claimants) to find innovative procedural mechanisms to bring securities claims on behalf of groups of investors more efficiently.
3. There continues to be developments in the courts’ approach to some of the key tactical tools available to investors when bringing securities claims, such as the disclosure of sensitive or confidential material held by defendants.
4. At the same time as these issues have been playing out before the courts, there is a growing political debate about the London Stock Exchange’s lack of international competitiveness, and whether this has been prompted in part by a reassessment of legal risks associated with a London listing given the increasing number of securities claims against issuers whose shares are listed in London, or mass consumer claims brought in England & Wales which seek to use an issuer’s listing in London as a basis for establishing jurisdiction. To some extent, this has prompted changes to the prospectus rules and the statutory causes of action investors have against issuers which narrow the scope to bring securities claims.

Each of these developments and the latest relevant cases in the English courts are explored in more detail below.

Passive investors and reliance

Where reliance is an essential element of the cause of action, including the statutory cause of action available to investors under section 90A FSMA, it remains one of the most contested issues in securities litigation in England & Wales.

The strict approach to the reliance requirement in the Allianz case

In Allianz Funds Multi-Strategy Trust & Ors v Barclays Plc [2024] EWHC 2710 (Ch) (Allianz), Mr Justice Leech granted reverse summary judgment in favour of Barclays and against a large cohort of investor claimants whose investment processes were wholly or partially “passive“, “index-linked” or “tracking” in nature who had brought claims against Barclays under section 90A. The passive investor claimants had not pleaded that any decision-maker actually read or considered Barclays’ published information which was alleged to have been misleading; instead, they argued that the requirement to show reliance was indirectly satisfied on the basis that the claimants assumed Barclays’ share price would reflect the content of information published by Barclays, and that Barclays would comply with the applicable regulatory requirements when publishing that information, including by disclosing all relevant negative information about its business. Due to the fact Barclays allegedly did not disclose all relevant negative information in accordance with its regulatory obligations, it was argued by the claimants that the share price ended up being inflated as against what the shares were actually worth. The passive investor claimants were said to have “relied” on the misleading statements in the published information because they assumed that Barclays’ share price reflected the true value of the business.

However, the Court:

• rejected any “fraud on the market” theory of reliance under section 90A (which is prevalent in US securities litigation), whereby reliance by an investor may be assumed where misleading information published by an issuer has an effect on the market price, even though the investor may not have been aware of the specific information which is said to have been misleading;
• held that the test for reliance under section 90A reflects the common law test for reliance in deceit; and
• concluded that price-only or “market” reliance, without some form of informational link between the published information and the claimant’s decision-making process (whether directly or through other sources), was insufficient: a decision-maker must have read and considered the published information, or third parties who directed or influenced their investment decisions must have read and considered the published information.

The decision removed a substantial proportion of the claim, representing all the passive, index-linked, or tracking investor cohort of claimants. It was widely seen as a significant restriction on the scope of section 90A claims because of the significant presence of passive investors operating in the market and the fact that the decision effectively meant that such investors could never satisfy a requirement to show reliance. This was controversial in view of the purpose behind section 90A, which was intended to make it easier for investors in general (rather than some types of investors but not others) to bring claims against issues for misleading statements in their published information.

The more open approach in the Standard Chartered case

The Court took a more cautious approach in Persons Identified in Schedule 1 v Standard Chartered Plc [2025] EWHC 698 (Ch).  On an application made by Standard Chartered to strike out or obtain reverse summary judgment in respect of claims brought by a group of investors on the basis of indirect or “market reliance”, Mr Justice Green declined to follow the approach taken by Leech J in the earlier Allianz decision. Whilst accepting that section 90A does not import a market-reliance presumption, in his judgment in Standard Chartered Green J emphasised:

• there has been no decision on the meaning of “reliance” under section 90A;
• the test for reliance in deceit – which Leech J had imported into section 90A – was itself a developing area of law, particularly in relation to a supposed requirement to show “conscious awareness” of the representation (or representations) forming the basis of the claim in deceit;
• the need for caution before ruling out particular modes of reliance (including reliance mediated by intermediaries, investment processes, or pricing signals) without trial; and
• Allianz should not be treated as having conclusively determined the boundaries of permissible reliance for all cases.

This is not to say that Green J considered that Leech J had been wrong in Allianz in deciding that passive investors could not satisfy the test for reliance, but as a matter of case management, he considered that the passive investor claims should be determined at trial and should not be dismissed at an interlocutory stage of the proceedings without the benefit of the additional evidence available at trial.

The latest developments

After the High Court decisions in Allianz and Standard Chartered, the Privy Council’s decision in Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53 (Credit Suisse Life) rejected “conscious awareness” as a free-standing requirement for reliance in the tort of deceit. This decision has added further – and potentially definitive – weight to the argument that evidential features such as active reading or recollection should not too readily be elevated into legal elements of a cause of action based on misleading information, something which is highly relevant to securities claims brought by passive investors. The earlier decisions which were identified as being “wrong” in Credit Suisse Life include decisions which were reviewed and followed by the Court when dismissing the claims of passive investors in Allianz.

A question left undecided by Credit Suisse Life is whether the analysis of the requirement of conscious awareness in deceit in the Privy Council’s judgment should be extended to apply to the statutory cause of action under section 90A given the wording of that provision (and Schedule 10A which is linked to section 90A). The Court in Allianz drew parallels between the test for reliance in deceit and the test in section 90A, but the restatement of the test in deceit in Credit Suisse Life may lead the courts to reassess whether it continues to be appropriate to link the two.

A further relevant development which post-dates the decisions in Allianz and Standard Chartered has come from the Skatteforvaltningen v Solo Capital Partners LLP & Ors [2025] EWHC 2364 (Comm) (SKAT) trial judgment, in which the Court examined how complex financial transactions are executed in practice, including the role of automated and algorithmic trading systems. Although SKAT was not a securities case, it was a claim in deceit, and the Court’s analysis reflects a broader judicial willingness to engage with how decisions are made in modern financial markets. The Court recognised that trading strategies may operate through automated processes that incorporate assumptions about counterparties’ conduct or market norms, even where no individual trader consciously evaluates each piece of information, and that the test for reliance should accommodate this. At [531] of his judgment, Mr Justice Andrew Baker said that the law:

“[R]cognises the possibility of mechanistic or automatic reliance that may be sufficient, so that there is inducement, although the making of the individual decision said to have been induced does not involve thought being applied by any human mind to what is or is not being conveyed by the words and/or conduct constituting or giving rise to the representation”

This has clear potential relevance to the reliance debates in Allianz and Standard Chartered, where the question is how far reliance may be shown in the absence of direct, conscious engagement with disclosed information. Together with the Privy Council’s reasoning in Credit Suisse Life, these developments during the course of 2025 suggest that – notwithstanding the Allianz judgment – the courts may be increasingly open to the idea that reliance may be established in cases of algorithmic and process-driven investment decision-making.

The unanswered question

The question of whether passive investors can bring securities claims where the cause of action has a reliance requirement presently sits uneasily between a relatively strict approach in Allianz and a more open, evidence-driven approach in Standard Chartered (although the Court in Standard Chartered left it open to adopt the same approach in Allianz once there had been a trial).  The Court of Appeal had been expected to consider the issue again in early 2026, and particularly the effect of the Credit Suisse Life judgment on securities claims under section 90A and the correct approach in relation to claims brought by passive investors, in the context of an appeal of Green J’s judgment in Standard Chartered. However, it was announced that this claim was settled in late 2025.

Representative actions in securities claims

In Wirral Council v Indivior Plc; Wirral Council v Reckitt Benckiser Group Plc [2025] EWCA Civ 40 (Wirral), the Court of Appeal confirmed that CPR rule 19.8 representative actions will rarely be suitable for securities claims.

What is a representative action, and what are the advantages of this procedure?

A “representative action” is a claim where a named claimant acts as the representative of a class of investors who are not themselves parties to the proceedings. The representative claimant brings the claim on the basis that the investors it is representing all have the “same interest” in the claim.  Any resulting Court judgment in the claim is then binding on the investors who are being represented and, equally, may be enforced by those investors. This is different from the usual way securities claims are brought on behalf of large numbers of investors in England & Wales, which involves “opt-in” group actions where each investor participating in the action is required to become a named claimant in the Court proceedings and expose themselves to the risks associated with being a claimant.

One of the advantages of using the representative action procedure in securities claims is that it is closer to what investors are used to in US class actions, where they can receive the benefit of a judgment or settlement, but without actively participating in all the Court proceedings. For this reason, the proposed representative claimant in Wirral argued that the use of the representative procedure would enable higher rates of participation by institutional investors who often did not want to become named claimants. A further argument deployed by the representative claimant was that retail investors are regularly prevented from participating in securities claims because of the smaller value of their claims compared to institutional investors (which affects the commercial assessment of acting for such investors on a contingent basis), and the representative procedure may enable retail investors to benefit from a judgment in favour of the representative claimant.

The Court of Appeal’s approach in Wirral

Notwithstanding these arguments deployed by the representative claimant in Wirral, the Court of Appeal upheld the High Court’s decision to strike-out two large securities claims brought on a representative basis on discretionary case management grounds in favour of alternative opt-in group action proceedings which had been commenced by investors against the same defendant issuers. In adopting this course, the Court of Appeal considered:

• there is no hierarchical presumption in favour of the representative procedure for bringing claims on behalf of large groups of investors when compared to alternative approaches like the more established opt-in group actions;
• the judge has a discretion as to whether to allow representative proceedings to continue;
• the proposed case management structure in Wirral, in which common, “defendant-side” issues would be tried first with little or no involvement of individual claimants because the represented claimants were not parties to the proceedings, would limit the Court’s ability to case-manage individual reliance and causation issues;
• this was considered to run contrary to established judicial practice in the management of securities claims, which involves progressing both “defendant-side” issues and “claimant-side” issues from the outset of proceedings; and
• the Court was sceptical of access to justice arguments about increasing rates of participation in securities claims or expanding the types of investors who could participate to include retail investors, and saw these as either being insufficiently supported by evidence, or stemming from decisions made by the representative claimant’s litigation funder about who was and who was not permitted to participate in alternative opt-in group action proceedings which had not been adequately explained to the Court.

The Supreme Court refused permission to appeal the Court of Appeal’s judgment dismissing the representative action. This means that the representative action procedure is likely to remain exceptional for securities claims. The default mechanism for bringing such claims on behalf of groups of investors will remain opt-in group action proceedings, with the Court retaining close control over the phasing and trial of claimant and defendant-side issues.

Disclosure of regulatory investigation materials by companies facing securities claims

Adverse findings made by regulators help establish many of the constitute elements of the causes of action available to investors against issuers. The consequence of this is that many securities claims follow on from regulatory investigations and findings of misconduct made against issuers.

Against this background, an important issue which can arise concerns whether, and in what circumstances, issuers who are being sued by investors must disclose materials produced during the course of a regulatory investigation which are subject to domestic or international confidentiality constraints.

The guidance provided by the Court in the Standard Chartered and Glencore cases

In Standard Chartered, the defendant bank applied to withhold certain documents from disclosure on the basis that they were subject to strict duties of confidence owed by the defendant to regulators in the US and Singapore. It argued that, if it had to disclose documents in breach of these duties pursuant to an order of the English Court, there was a real risk that it would face criminal prosecution or other serious regulatory sanction abroad. However, in an ex tempore judgment given over two hours at a hearing in early August 2025 (recorded in an approved transcript with the neutral citation [2025] EWHC 2136 (Ch)), Green J dismissed the bank’s application. The Judge considered that foreign confidentiality regimes do not operate as an automatic bar to disclosure in English proceedings:

“[E]ven where there is a real risk of prosecution proved, the English Court will rarely be persuaded to dispense with disclosure, it must be even more unlikely that it would do so because of a risk of a much lesser penalty such as a form of civil enforcement.”

The bank appealed this judgment. The Court of Appeal dismissed the appeal in a judgment handed down in December 2025 ([2025] EWCA Civ 158)).

The approach of the courts to disclosure of material from regulatory investigations was also examined in the Glencore shareholder group action, where the Court analysed whether disclosure of documents related to overseas anti-corruption investigations could expose Glencore or its officers to foreign criminal-law risks. In Aabar Holdings SÀRL & Ors v Glencore Plc & Ors [2025] EWHC 2243 (KB), the Court conducted a detailed assessment of: (1) whether disclosure would constitute an offence abroad (by reference to the applicable foreign law); (2) whether there was a real risk of prosecution; and (3) whether confidentiality protections in the English proceedings could mitigate the risk.

In Standard Chartered and Glencore, the English Court was reluctant to attach any real weight to arguments made by the defendants that they may face foreign prosecution, and proceeded to order the disclosure of documents which the defendants were seeking to withhold. This consistency in approach demonstrates the very high threshold for defendants who want to withhold from disclosure documents which they would be required to disclose under normal disclosure rules, and the difficulties they face in balancing international confidentiality obligations and domestic disclosure requirements.

The use of disclosure for encouraging settlement

It is also worth noting that the Standard Chartered litigation was settled between the circulation of the draft judgment of the Court of Appeal to the parties and the hand down of the final judgment. Although the substance of the settlement negotiations is of course confidential to the parties, the timing of the settlement suggests that the defendant bank’s concerns about potential breaches of confidential obligations owed to foreign regulations may have been a factor in its willingness to enter a settlement. This shows how disclosure can be used as a tactical tool by claimant investors to generate settlement pressure on defendant issuers.

Privilege and the end of the shareholder rule

Another notable development in 2025 is the overturning of the so-called “shareholder rule” on privilege.

Older securities claims such as Sharp & Ors v Blank & Ors [2015] EWHC 2681 (Ch) (a judgment handed down as part of the Lloyds/HBOS shareholder action) and Various Claimants v G4S Plc [2023] EWHC 2863 (Ch) had treated it as established law that a company could not assert legal advice privilege against its own shareholders (save where the privilege relates to documents produced for the purposes of litigation between the company and its shareholders). In late 2024, however, the Court in Aabar Holdings SÀRL v Glencore Plc & Ors [2024] EWHC 3046 (Comm) expressed doubt about the doctrinal foundations of the shareholder rule and held that, properly analysed, it did not form part of English law.

The debate was resolved in 2025 by the Privy Council in Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd (No 2) [2025] UKPC 34, where the Board held that the rule forms no part of the law. This decision removes a tactical tool used by investor claimants in some securities claims to obtain sensitive internal material belonging to defendants.

The wider risk landscape for issuers of securities and prospectus reforms

The broader risk landscape arising from securities litigation

The last few years have seen:

• a growing pipeline of funded securities claims, which often follow a standard model of following on from regulatory investigations and adverse findings by regulators; and
• very large, litigation-funded mass consumer claims, which often target large listed companies because of their ability to pay damages. An example of this is Município De Mariana v BHP Group (UK) Ltd & Anor [2025] EWHC 3001 (TCC), where more than 620,000 Brazilian claimants succeeded at the liability stage against the Australian mining group BHP in relation to the operation of a dam in Brazil. BHP operated a dual-listed structure in Australia and London until 2022, and the Court found English jurisdiction in this case because of BHP’s London listing.

These developments have coincided with subdued IPO activity on the London Stock Exchange, and a steady flow of high-profile companies either moving or considering moving listings overseas, particularly to New York. BHP is only one example of this when it made the decision to end its London listing.

Some commentators have suggested that the risk of securities litigation and mass claims may be influencing perceptions of heightened legal risk associated with a London listing – particularly among international issuers who have more flexibility over listing venue – and contributing to the poor performance of the London stock market. This has potentially stimulated some recent debates around the future of litigation funding and whether the law should be changed to increase the regulatory and procedural burden on litigation funders and claimants bringing funded claims.  It may have contributed to the judicial opposition to the introduction of practices and approaches which are more aligned with securities claims in the US (where is easier to bring large-scale securities claims), such as the decision in Allianz to reject the fraud on the market theory of reliance, and the decision in Wirral to reject the use of the representative action procedure.

Prospectus reforms

One response to concerns about the performance of UK capital markets has been reform of the prospectus regime. In July 2025, the FCA published Policy Statement 25/9 and final version of the new prospectus rules, which will reshape UK prospectus regime with effect from January 2026. The new rules can be found on the FCA’s website here.

The reforms are framed as part of a broader effort to revive London’s capital markets and attract major listings. As the FCA explained when it published the new prospectus rules, the intention is to “make it easier for companies to raise capital in the UK and reduce costs when admitting securities to UK public markets” and “improve the relative competitiveness of our regulation compared to other jurisdictions“.

Key features of the new rules include:

• limiting the circumstances in which a prospectus is required for further issues by already-listed companies; and
• a more permissive regime for forward-looking statements, including a protected category where specified conditions are met.

Fewer prospectuses

The reforms may have the effect of narrowing investors’ ability to bring certain types of securities claims. Section 90 FSMA and the provision replacing it, Regulation 30 of the Public Offers and Admissions to Trading Regulations 2024, provide investors with a cause of action against an issuer where the issuer has made misleading statements in a prospectus. If the prospectus rules are changed to reduce the circumstances in which an issuer is required to publish a prospectus, it naturally follows that there will be reduced scope for claims based on prospectus liability under section 90/Regulation 30.

The introduction of “protected forward-looking statements“

In addition, the new safe-harbour provisions for forward-looking statements in prospectuses (known as “protected forward-looking statements” or “PFLRs“) found in Part 3 of Schedule 2 of the Public Offers and Admissions to Trading Regulations 2024 make it more difficult for investors claimants to bring claims based on certain forward-looking statements contained in prospectuses. Instead of being able to bring claims in circumstances where the defendant issuer (and anyone else responsible for a prospectus) did not reasonably believe in the truth of a forward-looking statement at the time it was made, investor claimants will have to show that the defendant issuer (and other defendants, as the case may be) knew the forward-looking statement to be untrue or misleading or was reckless as to whether this was the case, or that an omission from a forward-looking statement constituted a dishonest concealment of a material fact. This introduces a knowledge requirement into the cause of action which is presently missing from section 90.

A knowledge requirement is always difficult for claimants to demonstrate because it can require a claimant to have evidence addressing the internal affairs of the defendant or the state of mind of the defendant company’s management at the time the prospectus was published. Even where the reality is that the issuer knew the relevant forward-looking statement was untrue or misleading at the time it was made, claimants may not be able to show this with a sufficient degree of confidence at the outset of proceedings to bring and plead a claim which requires them to adequately address the state of the defendant’s knowledge. Accordingly, the consequence of the introduction of a knowledge requirement will be to seriously curtail the circumstances in which investors can bring claims where an issuer has seriously underperformed against its stated expectations, even where the issuer has deliberately misled the market about how it was expected to perform.

How we can help

Members of our Commercial & Regulatory Disputes team have considerable experience acting in securities claims.

Jennifer Morrissey, who is a member of the team and acts as Head of Securities and Investment Disputes, acted for the claimant investors in the Lloyds/HBOS shareholder group action, one of the first major securities claims in the English courts. Since then, she has acted on a number of high-profile disputes between investors and issuers of securities. This has recently included acting for investors in the listed real estate investment trust Home REIT plc, whose shares were suspended from trading in early 2023 following allegations of wrongdoing in the management of the company.

Please contact Jennifer Morrissey or Edward Argles if you would like to explore how we can assist you with a securities claim.

Michelmores has advised the management team of Taking Care, part of AXA Health, on its LDC-backed management buyout (MBO).

Taking Care provides personal alarm and monitoring services and operates as part of AXA Health, a leading UK private healthcare provider with over 82 years’ experience. The MBO team was led by Steve Gates and Duncan Worthington. Michelmores has acted for the business for several years and was delighted to support the management team on this significant milestone.

The Michelmores team advising on the deal was led by Richard Cobb, Head of the Firm’s Corporate team and the Firm’s Senior Partner. Richard was assisted by Senior Associate, Victoria Miller, Trainee Solicitor Ellis Arnold, Rachael Lloyd (Partner, Employment), Karen Williams (Parter, Banking) Danielle Collett-Bruce (Managing Associate, Banking). Michelmores worked alongside Quantuma Advisory Limited and K3 Tax Advisory.

Richard Cobb commented:

“We were pleased to support the management team on this LDC-backed MBO. Having advised the business for a number of years, it was a pleasure to work with Steve, Duncan and the wider team on an important transaction that positions the business well for its next stage of growth.”

Steve Gates, on behalf of the management team, added:

“Michelmores has supported the business for a number of years and know it extremely well. Richard and the team’s practical, responsive approach and deep understanding of the transaction were invaluable in guiding us through this MBO and achieving a successful outcome.”

Michelmores’ award-winning Corporate team of specialist lawyers advises clients across the UK, US, and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. For more information, visit our website.

The recent case of Save Bristol Gardens Alliance v Bristol City Council [2025] EWHC 3191 (Admin) provides guidance on the Court’s approach to the use of ‘outdated’ versions of Natural England’s Biodiversity Metric in planning applications. As discussed in previous articles, the Biodiversity Metric is used by developers to assess and demonstrate their site’s compliance with the 10% biodiversity net gain requirement under legislation.

The Claimant challenged the grant of planning permission for the redevelopment of Bristol Zoo Gardens (the Site) on three grounds, however, here we focus solely on the first. Namely, that:

‘The Defendant acted unlawfully in adopting the planning officer’s advice and recommendation that the development’s contribution to biodiversity net gain should be measured by applying Natural England’s ‘Biodiversity Metric 3.0′ published on 7 July 2021’.

The chronology of events here is critical:

• The Landmark Practice (Landmark) were commissioned to assess the biodiversity net gain of the proposed Site. Landmark carried out their initial site survey on 21 July 2021;
• At this time, the latest iteration of Natural England’s Biodiversity Metric was version 3.0 (Version 3.0);
• Natural England (NE) published version 3.1 (Version 3.1) of the Biodiversity Metric in April 2022; and
• Notwithstanding the publication of Version 3.1, Landmark published their biodiversity net gain report (the BNG Report) for the Site based on Version 3.0 on 29 October 2022.

The BNG Report

Based on Version 3.0, the BNG Report concluded that onsite gain would stand at ‘4.53 habitat (area) units, which equates to 39.86% net gain, and a gain of 1.96 hedgerow (linear) units, representing 376.35% net gain‘.

In the BNG Report, Landmark acknowledged that the Biodiversity Metric had been updated since their initial site survey, but referred to Natural England guidance set out in Biodiversity Metric 3.1:

‘Users of the previous Biodiversity Metric 3.0 should continue to use that metric (unless required to do otherwise by their client or consenting body) for the duration of the project it is being used for as they may find that certain biodiversity unit values metric 3.1 generates will differ from those generated by Biodiversity Metric 3.0.’

The Bristol Tree Forum’s (BTF) objections to the BNG Report

BTF submitted that Biodiversity Metric 3.0 was unworkable for the purpose of calculating urban tree habitat. The issue had been remedied by Biodiversity Metric 3.1, and this latter metric showed the Site would in fact deliver a biodiversity loss of 22%. BTF concluded that Version 3.0 could still be used in respect of certain calculations within the BNG Report, but Version 3.1 should be used in relation to Urban tree habitats.

On 24 March 2023, Natural England published Biodiversity Metric 4.0 (Version 4.0). BTF stated this latest metric had ‘revolutionised the way urban trees are valued, making it clearer than ever that they are a very important habitat’. They put forward that the Site, under Version 4.0, would result in a net biodiversity loss of 12.52%.

In response, Landmark submitted a further technical note saying it was unreasonable and disproportionate to undertake updates on each release of subsequent versions of the metric. They pointed out that DEFRA themselves felt Version 3.0 was robust enough to release, and be used, to inform development across the country.

What did the Court have to determine?

The Court had to determine whether the planning officer had misled the Committee in any material way in submitting that the BNG Report was reliable, notwithstanding BTF’s objections.

The Court concluded the Committee had not been misled, and that the planning officer had exercised his judgement rationally. Mr Justice Mould set out the following reasoning in his judgment:

• NE’s advice is that the Biodiversity Metric should be used ‘at all stages of a project or scheme, from site selection and options assessment through to detailed design’. The Claimant argued that the first stage of the project must be taken from submission of planning permission (which would have meant a later version of the Biodiversity Metric being used by Landmark). The Court did not accept the Claimant’s argument. The Court stated:

‘considerable lead time…  [is] required… to work up the project from its inception to its state of readiness for submission to the local planning authority under a planning application. NE’s advice in paragraph 1.11 of the metric 3.0 User Guide is founded on that practical reality’. In short, Landmark were right to use and consider Biodiversity Metric 3.0 at the date of the site survey.

• NE’s written advice in such instances is that users should use the metric they began with unless requested to do so by their client or the consenting body. No such request was forthcoming, as Landmark had reflected in their technical note in response to BTF.
• Had BTF’s objections been irrefutable or accepted as correct by the defendant’s nature conservation officer, the decision to treat the BNG Report as reliable would have been difficult. However, on the evidence, BTF’s argument was not irrefutable. Landmark had already refuted it reasonably on the basis of NE’s guidance.
• NE’s guidance on the difference between Versions 3.0 and 3.1 did not state that the contested Table 7-2 in Version 3.0 (that dealt with urban trees) was unworkable or unusable – this was simply BTF’s argument. NE did not suggest that those using Version 3.0 should refresh their work by interpolating calculations.
• It is also worth pointing out that Landmark had re-run the biodiversity calculation applying a more precautionary assumption about the longevity of urban trees on the Site. Landmark acknowledged the proposed gain accordingly dropped from 39.86% to 36%.

Should you wish to discuss any of the issues raised in this article, please contact Edward Wilson.

Since starting our first few months at Michelmores, we have found that our placement year has been an excellent opportunity to develop transferable skills and gain insight into a legal career. We have been involved in important legal work, learning from experts in our teams and developing our understanding of specific areas of law.

Beyond gaining practical experience, we’ve also had the chance to connect with graduates and colleagues across the firm, which has been invaluable in shaping our understanding of the profession and developing future career aspirations.

Reflecting on our experience so far, we have put together our top tips for anyone thinking of applying for a placement year.

Research Firm

Thoroughly researching the firm will help you to really stand out. Moreover, it will help you to understand whether a firm is the right one for you. As a starting point, we recommend researching the firm’s sectors, practice areas, values, culture and goals for the future. You can use the firm’s website to find out more, for example Michelmores has a helpful insight and news article page. For a deeper understanding of the firm’s work, we highly recommend using other sources such as tuning into Michelmores’ podcasts.

Attending law fairs and events enable you to meet and talk to the Early Careers team and current placement students. They can give you more information about the programme and what it’s like to work at the firm so we recommend if you’re interested in applying to utilise these opportunities to help with your research.

Don’t worry about legal experience

Although any prior legal experience can be beneficial, it is not necessary nor expected when applying for a placement year. Instead, focus on the transferable skills you’ve gained through the experience you do have, whether this is from part-time work, volunteering, or extracurricular activities.

The more examples you can draw upon the better. Make sure you understand what is required of you for the role and explain why your experience has made you well-equipped for this opportunity.

Be commercially aware

Strong commercial awareness will help you in your applications as well as navigating work as a placement student. It’s important to understand how changes and events can influence how a law firm works and to demonstrate this in your application.

To keep up to date, using news article pages on a firm’s website can help you to stay commercially aware. You can also keep an eye on current affairs on your favourite news sites e.g. BBC, Financial Times. When reading about a new development, have a think about how this would affect a law firm, their areas of work and their clients.

Michelmores holds an informative commercial awareness workshop that provides a useful breakdown as to what this concept means and how it may be developed.

Keep an eye out for events

As we’ve shared, attending events can help with your research and they are good networking opportunities too. Michelmores host multiple events both in person and online throughout the year, which provide useful information on applications and the Firm itself so make sure you look out for these here: Events at Michelmores.

An event we found particularly helpful was an application and interview skills workshop run by Michelmores at our university so we would suggest seeing what opportunities are running that you can sign up to.

Additionally, universities will hold career events with networking opportunities. This can be a great way to build connections and gain insider tips on how to succeed in a legal career.

Be yourself

While it may be a cliché, expressing your personality throughout your application enables you to present yourself authentically and emphasise the distinctive qualities that differentiate you from other candidates. It is important to be confident in what you have to offer to successfully pitch yourself. Identify your main skills, how you’ve developed these and why these will help you to succeed in a placement role. Additionally, consider what values are important to you and whether these align with the firm.

Ultimately, being yourself will help you in the long term; if you are offered the role, you can feel assured that you were selected for your honest self and the skills you have.

Reach out/get help

Applying for placements on top of the pressures of the academic year can be challenging so it’s important to keep in mind the support that is available.

Using a firm’s website to help with any questions you may have is a good starting place but if you have any further queries, reach out to their Early Careers team. We found that the Early Careers team at Michelmores were keen to offer help when needed.

Furthermore, utilise the placement team/careers team at your university. They were immensely knowledgeable and helped to ease the stress of applications. They can help guide you to any online resources that can assist your preparation for any psychometric tests and interviews that you may be invited to.

Natural capital projects aim to restore ecosystems and deliver biodiversity benefits. They also generate carbon credits which can be sold or used for the benefit of the landowner, developer or initial project investors. These projects are vital for climate action and sustainability, but they involve long-term, complex, multi-party agreements and technical processes. This complexity often leads to disputes that can escalate into litigation. In this article, we explain where disputes can commonly arise during the lifecycle of a natural capital project.

Pre-project stage (contract formation)

The earliest stage of a natural capital project involves negotiating the contracts and defining responsibilities. Disputes often arise over land access and who owns the benefits provided by nature, such as carbon credits.

Carbon credits are tradable certificates representing one tonne of carbon dioxide that has been removed from the atmosphere or prevented from being emitted. Businesses purchase carbon credits to offset their own emissions, helping them improve their own sustainability credentials and potentially achieve “net zero”. If ownership of these credits is unclear, conflicts between landowners, developers, and investors are inevitable.

Misrepresentation is another risk: where environmental benefits or project feasibility are overstated. This can lead to greenwashing claims, where companies are accused of misleading stakeholders about sustainability, or to carbon credits being invalidated after they have been sold. Greenwashing and misrepresentation are major ESG concerns for businesses and will likely continue to be going forward.

Funding commitments also pose challenges; if investors fail to meet agreed milestones, it can trigger breach of contract claims.

It will not be a surprise that we consider clear contract drafting and early legal due diligence on the feasibility and sustainability benefits of projects to be essential to avoid these pitfalls.

Finally, community engagement is also important; failure to secure local support for projects can result in injunctions or reputational harm.

Baseline assessment

Once the project begins, a baseline assessment establishes the starting environmental conditions at the site. This step is critical to show the improvements provided by the project.

Disputes can occur if data accuracy is questioned or if valuation methods for natural capital assets differ. It is essential to use recognised, standard methodologies and transparent reporting from the outset to give clarity to all interested parties, including regulators where relevant. For example, this will reduce the likelihood of disputes over the increased value of the site attributable to the improvement in biodiversity.

Quality of work

Contractors exceeding (or failing to meet) the scope of agreed tasks or failing to deliver tasks to the appropriate standard can lead to claims for delays or defective work. Poor quality, such as planting unsuitable species, may result in a project failing or under-performing.

Successful projects require clear scopes of work and contracts; a clear understanding amongst all parties of the required quality of work and a regular assessment of that work as it progresses to ensure quality (including, for example, potentially prescribing an agreed list of species and age of trees to be planted at a site); and active dialogue with all parties, including contractors and the community to maintain trust and avoid disputes.

Financial model

Natural capital projects often generate revenue through carbon credits.

Disputes frequently arise over the ownership of credits and revenue sharing between landowners and investors. To mitigate these risks, contracts should define ownership clearly, include profit-sharing mechanisms, and address market fluctuations.

Governance and risk management

Breaches of environmental obligations, ESG objectives or misrepresentation in related statements (i.e. greenwashing) can lead to enforcement actions by regulators and civil claims by interested parties.

Another major risk is force majeure: unforeseen events like floods, climate change-related events or policy changes that disrupt projects but have not been caused by the conduct of any of the parties. For example, projects could foreseeably fail in the medium term due to the effects of climate change. If contracts lack clear force majeure clauses, disputes over obligations and termination rights can arise. These risks can be managed in the contract drafting stage and also through the purchase of appropriate insurance, which is essential.

Shareholders are also increasingly active in holding boards to account in relation to taking the environment into account (or complying with any express provisions in a shareholders’ agreement or the company’s Articles). In particular, by suggesting that nature considerations are now part of a director’s statutory duty to exercise due care and skill and promote the success of the company, which includes the long-term consequences of decisions and their impact on the environment.

Monitoring and reporting

Natural capital projects have to be actively monitored throughout their lifespan to ensure that they continue to deliver their intended outcomes, such as carbon capture or biodiversity gains. If they fail to deliver their objectives, carbon credits generated by the scheme and sold can be invalidated. In that case, claims can arise between any parties who have purchased the carbon credits (or who effectively funded the project to benefit from them), those who own or developed the natural capital asset and contractors or those deemed to be at fault for its failure.

Regular independent audits and the use of digital reporting platforms that transparently display the data and are readily accessible by interested parties can reduce the risk of disputes and build confidence in the performance and management of projects.

Long-term management

Long-term management of natural capital projects is a key risk area because they often span decades.

Arrangements must be unambiguously documented in contracts, otherwise disputes can arise over things like ongoing maintenance obligations: who is responsible for maintaining different aspects of a project after the initial investment and funding have ended. Lifecycle funding plans and contracts can cover what happens in different scenarios, like a landowner selling the land or a developer or investor selling its stake in a project, ensuring continuity over the life of a project.

Developing law and policy

This is a developing area of law and policy in England and Wales and that means the law has not always caught up with what is happening on the ground. In early natural capital projects, parties relied on published “guidance” and draft legislation. The fact that the law is developing means that it can change and those changes can impact projects that are already documented. These projects need to be kept under review to ensure they are compliant or are drafted in a way that protects them from such legal developments.

Summary

Natural capital projects offer immense environmental and financial benefits, but they also carry significant legal risks. By understanding these risks and implementing robust governance, transparent monitoring and reporting, and fair and comprehensive contractual arrangements, stakeholders can minimise the risk of disputes and build resilient projects that deliver long-term value.

If you have a dispute relating to ESG compliance, reporting or a natural capital project please contact Nick Roberts, a Managing Associate in Michelmores’ Commercial & Regulatory Disputes team.

Michelmores has advised the sellers of Ocean Fish Group, one of the South West’s oldest and most established fishing and processing businesses, on its sale to Falkland Islands-based Fortuna Ltd.

Ocean Fish Group, whose heritage dates back to 1740, has grown into a leading vertically integrated supplier to UK and European retail, wholesale and foodservice markets. Under the Lakeman family’s ownership, the Group has expanded significantly through targeted acquisitions and strategic partnerships, establishing itself as a key player in the sector.

Fortuna, the largest fishing company in the British Overseas Territories, enters the UK fishing market for the first time through this transaction. The acquisition is expected to support Ocean Fish Group’s ambitions for continued growth, strengthened supply-chain resilience and increased access to global markets.

Michelmores advised the sellers on all aspects of the transaction, drawing on its cross-disciplinary expertise and long-standing relationship with the Ocean Fish business. The Michelmores team was led by Partner Henry Taylor with assistance from Managing Associate Chris Smedley, and Associate Ben Adams, both from the Firm’s Corporate team, Corporate Tax Partner Cathy Bryant, Commercial Partner David Thompson and Real Estate Managing Associate Matt Jones.

Leigh Genge, CEO of Ocean Fish, comments:

“Henry and the wider Michelmores team’s support throughout this process has been invaluable. Their understanding of our business, our heritage and our goals helped ensure a smooth and successful transaction as we join forces with Fortuna.”

Henry Taylor added:

“We are proud to have supported Ocean Fish on this landmark transaction for a business with such deep roots and significance within the South West’s fishing industry. This deal marks an exciting chapter for Ocean Fish Group, and we wish the business all the very best as it moves forward.”

Other advisers to the transaction included FRP Advisory and HSBC.

Michelmores’ award-winning Corporate team of specialist lawyers advises clients across the UK, US and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. Read more on our website.