Edward Cumming QC and Harry Samuels consider the scope for ESG-related litigation in the Journal of International Banking and Financial Law

21 April 2022

Edward Cumming QC and Harry Samuels consider the scope for ESG-related litigation in the Journal of International Banking and Financial Law

The Journal of International Banking and Financial Law has published an article by Edward Cumming QC and Harry Samuels that considers the recent proliferation in ESG-related disclosure requirements for companies – and public awareness of the same – and the way in which this stands to drive an increase in litigation. This article examines the reporting and disclosure obligations for companies in the UK, and then considers how shareholders or activists might litigate when firms are found to have given incorrect or misleading information. After concluding that there are potential difficulties with proving reliance and causation, the article suggests practical steps companies might consider to try to limit the risk of liability.

XXIV Old Buildings’ specialist barristers have particular experience of issues engaged by the increasing trend towards ESG-related litigation both in the financial services sphere and in the private wealth sphere.  Members have been instructed in relation to a range of claims concerning financial services firms, including claims under s.90 and s.90A of FSMA 2000.  They also have extensive expertise in advising in relation to the proper discharge of fiduciary duties insofar as they may engage ESG considerations. Edward Cumming QC recently appeared in the trial of proceedings by charity trustees seeking relief to enable them to adopt investment policies that would exclude investments considered by the trustees to be misaligned with the goals of the Paris agreement and so in conflict with the charities’ purposes: see Butler-Sloss & ors v Charity Commission & anr  [2021] EWHC 1104 (Ch) for Michael Green J’s decision giving permission for those proceedings.

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