High Court considers appropriate split for trial of s.90 and 90A FSMA claims in Entain litigation

In a securities class actions brought against Entain Plc under ss. 90 and 90A of the Financial Services and Markets Act 2000 (FSMA), the High Court has held that issues of reliance and causation, and certain limitation issues, should be held over to a second trial to be determined together with the quantification of loss. The first trial will therefore be limited to "defendant-side" issues, as well as issues relating to the individual claimants' standing to bring the claims: Various Claimants Listed in the Schedules to the Claim Forms v Entain Plc [2026] EWHC 1622 (KB).

The decision emphasises that the questions of whether there should be a split trial, and if so the appropriate split, depend on a wide range of considerations. There is no "one size fits all" approach, and little definitive guidance can be gained from other cases.

The court noted that part of its duty to further the overriding objective by actively managing cases is to deal with as many aspects of the case as possible on the same occasion, and so the "obvious starting point" is that all issues should be tried at a single trial. However, that must be balanced against other factors including questions of costs, practicality and the efficient and proportionate preparation of witness evidence.

The court also commented that those who choose to bring civil claims, particularly those valued in the billions, must be ready, willing and able to establish those claims, and not assume that they will be able to defer dealing with "claimant-side" issues such as reliance and causation because they are likely to be hived off to a second trial. In this case, although the court ultimately found that reliance and causation should be determined at a second trial, it ordered all the sample claimants to give disclosure (but not produce witness statements) on those issues before the first trial. This, it said, would strike the appropriate balance between, on the one hand, minimising wasted costs and, on the other, minimising delay and ensuring the whole litigation burden did not fall on the defendant in the early part of the proceedings.

For further information, please see our Litigation blog post.