The High Court recently ruled on how the trial should be split in Various Claimants v Entain PLC [2026] EWHC 1622 (KB) ("Entain"); the decision further supports the notion that there is no "one size fits all" approach when determining the appropriate trial shape in group claims brought under ss.90 and 90A of the Financial Services and Markets Act 2000 ("FSMA").

Background

Entain is currently defending claims brought by investors seeking compensation pursuant to ss.90 and 90A (and Schedule 10A) of FSMA. The Claimants allege that they have suffered loss as a result of: (i) untrue and misleading statements in a number of Entain's prospectuses,  annual reports and other statements published between 2011 and 2023 (“Published Information”) and/or material omissions from the Published Information; and/or (ii) dishonest delay in publishing information to which Schedule 10A of FSMA applies (the "Claims").  Entain denies the Claims in their entirety.

Backdrop of split trial decisions in similar cases

The question of the most efficient and appropriate way to shape trials in ss.90 and 90A FSMA cases has been the subject of considerable debate between claimants and defendants and has been considered by the Courts on a number of previous occasions. Although the starting point generally is that all issues in a case should be dealt with in a single trial, the Courts have found that for these types of cases it can be appropriate to split the trial, with certain issues being dealt with in a first trial ("Trial 1") and others deferred to a second trial ("Trial 2"). However, the nature of the split has varied between cases; in some cases (such as those against RSA, G4S and Serco), the Court has ordered that "defendant-side" issues (namely, liability) be dealt with in Trial 1, with the "claimant-side" issues of reliance, causation and quantum being hived off to Trial 2. However, in other cases (such as Tesco, Barclays and, most recently, Boohoo), the Courts have seen fit to have more of the issues in Trial 1, with just quantum left for Trial 2. Our previous analysis of the split trial decision in the Boohoo case can be found here.

The Entain split trial decision

At the first Case Management Conference in the Entain case, which took place on 16 to 18 June 2026, Entain sought an order from the Court that reliance, causation and limitation be included in Trial 1. It was already agreed between the parties that the other issues of the Claimants' standing and the Defendant-side liability issues would be tried in Trial 1. The Claimants contended that reliance, causation and limitation should be deferred until Trial 2. Mr Justice Trower decided that, in these particular circumstances, the Claimants' proposed split was the preferable one.

However, Trower J also found it was important to take "steps to ensure that the whole litigation burden is not loaded on Entain in the early part of the proceedings" [74]. He therefore ordered that the sample Claimants give disclosure on the vast majority of Trial 2 issues ahead of Trial 1.

Discussion

In making his decision, Trower J rejected the notion of there being an "orthodox" approach. He noted that "not every case has reached the same conclusion and it is important to emphasise that the right answer in each case will be dictated by its own facts and circumstances" [19].

In determining the right approach to trial shape in each case, "there will always be a wide range of considerations for the court in determining how to proceed" [17]. These considerations include cost, efficiency and best use of court time, the likely best approach for achieving settlement and the litigation burden.

As to the facts and circumstances, that these proceedings are brought by large groups of Claimants and that the period under examination is lengthy were found to be relevant considerations. The Claimants made the point that the cases in which the Court ordered a split where reliance was included in Trial 1 tended to be on a more modest scale than the current proceedings; in the cases against Tesco, Barclays and Boohoo, the statements and omissions relied on periods between three and a half and five years. In these proceedings, the relevant period is 12 years, which is closer to the eight year period in the cases against G4S and Serco, the 12 years for Standard Chartered and the 13 years for Glencore, in all of which the split was either the same or almost the same as the one ordered by the Court here.

Along with the time period, another relevant element is complexity; the case against Entain is brought under both ss.90 and 90A FSMA (others, such as the case against Boohoo, are s.90A only). The Claimants noted that their Claims are based on a large number of statements in and omissions from 37 items of published information spanning the 12-year period and relate to three separate prospectuses published in 2013, 2015 and 2018, and one supplementary prospectus also published in 2018. The Claimants argued that the result of this is that their case involves a large number of permutations which they alleged, and the Court agreed, would be cumbersome and potentially unnecessary to deal with in their entirety in Trial 1. In light of this concern, Trower J made the point that "proper case management should regulate the proceedings in a manner which tries to ensure that a great deal of time and money is not wasted in adducing evidence on permutations based on what turns out to be the wrong counterfactual" [68]. However, this concern may well be less acute in cases with a smaller scope; in other cases, including those identified above, the Court has found it would be manageable to deal with the various permutations of the claimants' case in Trial 1.

Conclusion

A key takeaway from this decision is that, when considering the appropriate trial split in a ss.90/90A FSMA case, the Courts look to take a pragmatic approach. In making this decision, they are mindful of a range of factors, such as efficiency and costs, but also issues of fairness such as the litigation burden.

The overarching message from the Courts is that there is no "one size fits all" approach, as emphasised by Mr Justice Green in Boohoo and reiterated by Trower J in this case: "the varied conclusions reached by the various judges who have been required to consider the position demonstrates that this is not an issue in which one size fits all [29]."

Although reliance and causation were deferred to Trial 2 in this case, Trower J issued a word of warning that: "claimants who choose to bring civil claims, particularly those valued in the billions, should only do so if they are ready willing and able to make good the cause or causes of action which they plead. They should not commence these sorts of claims safe in the knowledge that they will be able to defer dealing from the outset with claimant-side issues such as reliance and causation because they are likely to be hived off to a second trial" [63]. In this particular case, the Claimants will still have to give disclosure on the vast majority of Trial 2 issues in advance of Trial 1.

Overall, the Entain decision reinforces that there is no single “orthodox” approach to trial structure in ss.90 and 90A FSMA securities litigation and the Court's approach to the appropriate split will depend on the particular facts and circumstances of each case.

Clifford Chance has represented and is representing defendants in previous and ongoing ss.90 and 90A FSMA cases.