31. Mai 2022
Disputes Quick Read – 38 von 87 Insights
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
The High Court recently refused permission for members of a pension fund to bring a so-called "multiple derivative claim" which alleged (among other things) that directors of the fund's trustee were in breach of their duty to promote the success of the trustee company due to failure to implement an immediate plan for divestment from fossil fuel-related investments.
In McGaughey v Universities Superannuation Scheme Limited (USSL) the claimants, a university reader and senior research fellow, sought permission to bring a multiple derivative claim against the directors of USSL, the corporate trustee of their pension scheme.
The case is interesting because it applies the common law principles for multiple derivative claims, ie where the claimant is not a shareholder of the company on whose behalf the claim is brought. However, we find it particularly interesting due to the climate change angle.
The claim
The claimants said that while USSL took the view that climate change was a financial risk, the directors had failed to form any (adequate) plan of how to address that financial risk. Their continued investment in fossil fuels without a plan for divestment was, therefore, said to be in breach of their duties to act for proper purposes and to promote the success of the company (sections 171 and 172 of the Companies Act 2006).
They also argued that due to various other considerations (not necessarily relating to financial risk) such as the Paris Agreement and the results of a members' ethical investment survey, the directors were in breach of their s171 and 172 duties by failing to have an immediate plan to divest.
The primary argument was that the company had suffered (or would suffer) financial loss by its ongoing investment in fossil fuels, rather than that the company should divest for ethical reasons. The claimants relied on articles from the Financial Times and a study from Imperial College London as evidence that renewable energy portfolios have consistently performed better than fossil fuels. However, the claimants did not further particularise the loss said to have been suffered by the ongoing investment in fossil fuels.
The outcome
USSL's response set out in detail how it had exercised its investment powers over the last 20 years, including the consideration given to climate change. It explained its view that immediate divestment was not necessarily the best way to achieve net zero. Instead, USSL said it had used its position as an investor to put pressure on companies such as Shell to take further action on climate change.
Leech J refused permission for the claim to continue. He was not satisfied that USSL had suffered any immediate financial loss because of the directors' failure to divest from fossil fuels. He also considered the directors' investment decisions were well within USSL's discretion.
He was not satisfied that the Court would be prepared to grant the declaratory relief sought, which was in somewhat vague terms, or that any useful purpose would be served by doing so.
Comment
This claim bears some similarities with the widely reported claim that ClientEarth has threatened to bring against the directors of Shell. If the ClientEarth case proceeds, we expect to see a much greater degree of particularisation of the loss ClientEarth says Shell will suffer by virtue of the board's current climate strategy.
Leech J's comments in this case will be of use to parties on both sides of similar claims in the future. Directors should note the weight that Leech J put on USSL's detailed evidence about how the directors had exercised their discretion, in particular the evidence that USSL had:
- taken legal advice
- conducted a survey of members
- adopted an ambition of net zero by 2050
- adopted policies for working with the companies in which it invests in the meantime.
Reach out to a member of our Disputes & Investigations team if you want to know more about what this might mean for you.
In dieser Serie
New SFO Director announces bold plans to tackle fraud
21. March 2024
von mehreren Autoren
What are the litigation trends for 2024?
1. February 2024
von Katie Chandler, Emma Allen
ClientEarth v FCA: Challenging Regulator Decisions
12. February 2024
von Tim Strong, Nicole Baldev
First of its kind judicial guidance on the use of AI in the courts
14. December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13. December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23. October 2023
von mehreren Autoren
CAT to hear the first application for a collective settlement approval order
17. October 2023
Failure to prevent fraud – a new offence?
14. August 2023
von mehreren Autoren
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4. August 2023
von mehreren Autoren
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21. July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10. July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1. June 2023
von mehreren Autoren
Disputes Quick Read – developments in the fixed costs regime
3. May 2023
von James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20. April 2023
von James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8. March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2. March 2023
von Katie Chandler, Emma Allen
Disputes Quick Read: further guidance on witness statement preparation rules
14. February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13. February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8. February 2023
von Jessie Prynne
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19. January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3. October 2022
von Gemma Broughall
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22. September 2022
von Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9. August 2022
von Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25. July 2022
von Edward Spencer
Disputes Quick Read: what claims exist when a smart contract is breached?
6. July 2022
von Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28. July 2022
Disputes Quick Read: Disclosure Pilot Scheme – here to stay
21. July 2022
von Edward Spencer
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27. July 2022
von Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29. July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17. June 2022
von Stephanie High
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13. June 2022
von Edward Spencer
Disputes Quick Read: ENRC prevails in claim against former solicitor
26. May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31. May 2022
von mehreren Autoren
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4. April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5. April 2022
von Stephanie High
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31. March 2022
von mehreren Autoren
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21. September 2021
von mehreren Autoren
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13. September 2021
von Edward Spencer
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6. September 2021
von Stephanie High
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2. August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21. July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15. July 2021
von Jessica Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26. May 2021
von David de Ferrars
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5. May 2021
von Stephen O'Grady
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21. April 2021
von Stephanie High
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31. March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26. February 2021
von Tim Strong, Akash Jamang
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24. February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20. January 2021
von Stephanie High
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12. January 2021
von Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23. November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16. October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23. September 2020
von mehreren Autoren
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7. October 2020
von Nick Storrs
Disputes Quick Read: The importance of proper service
26. May 2020
von Edward Spencer
Disputes Quick Read: government guidance for contracts impacted by COVID-19
12. May 2020
Disputes quick read: Mandatory changes to Statements of Truth
18. May 2020
von Katie Chandler
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9. April 2020
von mehreren Autoren
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15. April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27. April 2020
von mehreren Autoren
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21. April 2020
von Stephanie High
Disputes Quick Read: A different approach to witness evidence
11. March 2020
von James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17. March 2020
von Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26. March 2020
von mehreren Autoren
Disputes quick read: climate change activism by litigation
26. February 2020
von Tim Strong, Andrew Howell
Disputes Quick Read: Commercial Court's arbitral power shift
21. February 2020
von Andrew Howell
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2. June 2020
von Georgina Jones
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16. June 2020
von Georgina Jones
Disputes Quick Read: Privilege waiver warning
2. July 2020
von Tim Strong, Georgina Jones
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9. July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21. July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3. December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24. November 2021
von Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8. October 2021
von Katie Chandler
Disputes Quick Read: Climate change litigation – what's the latest?
10. January 2022
von Tim Strong, Jessica Thomas
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20. January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22. March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7. April 2022
von mehreren Autoren
Related Insights
UK announces withdrawal from Energy Charter Treaty
von Karel Daele und Jessica Thomas
ClientEarth v FCA: Challenging Regulator Decisions
von Tim Strong und Nicole Baldev
Witness familiarisation - does it affect the court's assessment of witness credibility?
von Tim Strong und Helen Brannigan