Background
On 24 November 2025 the Privy Council handed down its decision in Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53. The advice of the panel of judges was given by Lord Leggatt. Whilst this case concerns several issues, the one issue that is addressed in this blog is the fraudulent misrepresentation (deceit) claim. As set out below, Lord Leggatt’s reasoning may have significant implications for s.90A FSMA claims.
In simple terms the Plaintiffs alleged that by reason of fraudulent misrepresentations made by an agent of the Bank, Mr Lescaudron, they had suffered considerable losses. The basis of the misrepresentation claim was that Mr Lescaudron had, by his conduct in recommending investment in life policies, impliedly represented that the Bank was not managing the plaintiff’s accounts fraudulently and did not intend to manage assets within a life insurance policy fraudulently.
The claim was brought in the courts of Bermuda. At first instance, before Chief Justice Hargun, the Plaintiffs succeeded entirely on this fraud claim ([2022] SC (Bda) 19 Civ) but on a cross-appeal the Court of Appeal held the claim failed because the plaintiffs had not pleaded and proved that that Mr Ivanishvili had a conscious awareness of the implied representations ([2023] CA (Bda) 13 Civ). The Plaintiffs appealed this finding to the Privy Council.
The Privy Council decision
The Privy Council allowed the appeal in respect of the awareness requirement and found that [179]:
“…under the law of England and Wales and Bermuda it is not a legal requirement of a claim for deceit that the claimant was aware of the representation or understood it to have been made”.
This is a very significant conclusion which will be followed by the English courts given there is no appellate authority to the contrary (see Willers v Joyce (No 2) [2016] UKPC 44). However, since the financial crisis of 2008 there have been a string of decisions by Commercial Court judges in which it has been held that a claimant must understand the representation that was made in order to bring a claim in deceit (“the Awareness Requirement”). This has led to pressure on claimants’ pleadings (through RFIs etc) and strike outs, as one would expect.
This requirement had become generally accepted by first instance judges and led recently to the high profile decisions in Leeds City Council v Barclays Bank Plc [2021] EWHC 353 (Comm) and Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm) where the Awareness Requirement was held to apply and the claims to fail because it had not been satisfied (in Loreley the claim failed for multiple other reasons too).
On the Leeds/Loreley analysis, if a claimant gave no conscious thought to an implied representation (typically arising from conduct by the defendant) and instead made an assumption as to the true position which was at best “quasi-automatic” the deceit claim would fail. The upshot was that in most cases where a claimant wished to rely upon an implied representation it was likely to fail since by their nature implied representations are generally not subject to contemporaneous conscious thought.
The authors of this blog were non-believers that the Awareness Requirement was good law and set out the reasons for such a view in various articles.[1] As we said:
“In our view it is doubtful that there is a rule that the representee must satisfy a factual test of subjective awareness … A person may be unaware of the representation and still be influenced by the representation”.
Happily the Privy Council adopted similar reasoning, citing our articles with approval in the process. Lord Leggatt identified three misconceptions that underpinned the Awareness Requirement.
The Privy Council’s criticisms of the Awareness Requirement
First, the Awareness Requirement was based on the false proposition that reliance cannot be established without awareness of the representation. This undoubtedly was the core basis for the Awareness Requirement. Lord Leggatt explained that all that is required to satisfy reliance is (i) the representation caused the claimant to hold a false belief and (ii) the false belief caused the claimant to suffer loss (at [161]). Awareness of the representation is not needed to establish that a false belief was caused by the representation. In other words, if a claimant can show that it made an assumption caused by the representation that will be sufficient. Thus the controlling factor is causation of the belief, not awareness of the representation. Lord Leggatt demonstrated by an analysis of cases since 19th century that there has not been a decision which held that a representations must be actively present in the mind of claimant prior to the recent Leeds/Loreley line of cases.
Second, the first instance decisions had made the mistake of confusing what in practice will often be required as a matter of evidence, namely for the claimant to say it understood the representation in the sense the defendant intended, with a legal requirement that this must be so (at [175]). As Lord Leggatt noted, that is most starkly illustrated by cases where the representation is ambiguous and only one meaning is false. Unless the claimant can show the sense in which the representation was false was understood then causation of a false belief will not be made out. In other cases where the representation could only have one meaning there would be no need to give any evidence as to the claimant’s understanding of it.
Third, it was false dichotomy in cases such as Leeds and Loreley to separate representations from assumptions and indeed from non-disclosure (at [175]). It is now clear following Lord Leggatt’s judgment that if the assumption is caused by the conduct of defendant (the conduct generating the representation) that satisfies the causation requirement for a false belief. Hence the waiter who assumes, based on the conduct of a customer sitting down at a table, that the customer is honest is sufficient. Characterising the customer as committing ‘mere’ non-disclosure rather than a representation is to present a false dichotomy. The question is whether in the circumstances the conduct including silence amounted to a representation.
General implications of the Credit Suisse Life decision
The main implication of the decision for common law cases is that there is scope for an increased use of implied representation claims because the Awareness Requirement has fallen away.
All the other hurdles regarding implied representations remain. In particular, it is no easy matter to find complex or complicated implied representations as is made clear in Loreley (see [293]-[296]) and has been shown by the Libor-type cases. In that regard it is worth noting that the finding of the implied representation in Credit Suisse Life was not challenged in the Court of Appeal nor the Privy Council.
However, what may now be given a new lease of life is an implied representation that the counterparty is honest in respect of the relevant dealing in question. This implied representation is generally not difficult to find because it is simple and underpins the effective workings of many commercial relationships. It is also often assumed by a customer/client without any conscious thought.
These findings may be used by claimants to say that an assumption of honesty caused them to believe the counterparty was honest and that in turn led them to enter into the transaction. However, it would be wrong to say that in most commercial cases as a matter of course there will be an implied representation as to honesty and there will be reliance upon that representation by means of an assumption. That is too generalised an approach.
Further, the presumption of inducement has been thought to be parasitic upon an awareness of the representation: ACL Netherlands BV v Lynch [2022] EWHC 1178 (Ch) at [515 (7)]. It may now be said that is wrong. But that is an undecided point, and it may be argued to the contrary that different considerations apply to a factual presumption than to the question of how a representation can influence a representee.
What does this mean for s.90A FSMA claims?
As to s.90A FMSA the big question is whether the Privy Council decision makes a difference to the reliance requirement. Credit Suisse Life is of course not a s.90A case. However, s.90A is often analyzed through the lens of the common law deceit claim because it requires dishonesty. Indeed, Leech J decided in Allianz Funds Multi-Strategy Trust v Barclays Plc [2024] EWHC 2710 (Ch) that s.90A does impose an awareness requirement and that claimants who had not read and considered the published information had no claim (one of us has written a blog on this case – see here). Whilst Michael Green J reached a different decision as to the awareness requirement in Persons Identified in Schedule 1 v Standard Chartered Plc [2025] EWHC 698 (Ch) that was at least in part on case management grounds (see [85]).
If there is no Awareness Requirement for a common law deceit claim there may be an argument that no such requirement applies under paragraph (3) of Schedule 10A to FSMA.
Could then a tracker fund bring a claim under s.90A? One immediate difficulty is how one could demonstrate that a tracker fund held the “false belief”. That said it may well be easier for a claimant to produce a witness who can say that “I assumed the published information was true and not misleading and that formed part of the reason I invested”. What this throws up is that precisely what will satisfy the causation test is critical and remains to be decided.
Putting aside tracker funds, the Credit Suisse Life approach would not just impact upon misleading statements in published information but also on how an investor can rely on an omission in published information. These are not straightforward issues. Here, the court is unlikely to simply read across the common law deceit position to s.90A because of course deceit does not lie for pure omissions at common law. This is a statutory cause of action with an express reliance requirement which involves a construction exercise that is entirely separate from the common law. There is also the requirement (not found at common law) that the reliance is “reasonable” which may be construed as imposing a tighter analysis that one of pure causation.
The above implications are to be worked through, and first up will be the Standard Chartered appeal which is taking place in January 2026.
Conclusion
We wanted to finish with an unashamed publicity; 3VB is authoring the first book dedicated to securities litigation, which will explore some of the issues above in more depth. It will be published in the first quarter of next year, in time for the implementation of the statutory reforms to prospectus liability.
[1] Peter de Verneuil Smith QC and William Day “Reliance: a comparison between the common law and s 90A FSMA” (2021) 6 JIBFL 389; William Day “Recent travails of fraudulent misrepresentation” [2021] LMCLQ 636.