Key Facts
- •ClientEarth sought judicial review of the FCA's approval of Ithaca Energy PLC's prospectus.
- •The prospectus's adequacy in disclosing climate-related financial risks was challenged.
- •The claim was filed near the end of the three-month limitation period.
- •ClientEarth argued the claim fell under the Aarhus Convention.
- •The High Court refused permission for judicial review.
Legal Principles
Promptness in filing claims (CPR r.54.5(1))
CPR r.54.5(1)
Standing in judicial review – public interest basis.
Case law on standing
FCA's powers regarding prospectus approval (FSMA 2000, Part 6; s.87A; Listing Rules)
Financial Services and Markets Act 2000 (FSMA 2000), section 85, 87A; FCA Listing Rules 2.2.10
Prospectus Regulation (EU) 2017/1129 – Articles 6, 16, 20; Recital 54; ESMA Guidelines.
Prospectus Regulation (EU) 2017/1129
Standard of review for FCA decisions – rationality.
R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23; R (Ali) v Secretary of State for Justice [2013] 1 WLR 3536; R (Yukos Oil) v Financial Services Authority [2006] EWHC 2044 (Admin)
Aarhus Convention – Article 9(3); Interpretation of 'national law relating to the environment'.
Aarhus Convention, Article 9(3); Venn v Secretary of State for Communities and Local Government & ors [2015] 1 WLR 2328; R (Lewis) v Welsh Ministers [2022] EWHC 450 (Admin); Department for Business, Energy and Industrial Strategy v The Information Commissioner [2017] EWCA Civ 844; Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012; ACCC.C.2013/85 and 86 (United Kingdom), 29 November 2016.
Costs in Aarhus Convention claims (CPR 46.24)
CPR 46.24
Outcomes
Permission for judicial review refused.
Grounds 1 and 2 (inadequate disclosure of climate-related risks) were unarguable; the FCA's interpretation of Article 16 was correct and its decision was rational. Ground 3 (irrationality in concluding prospectus complied with Article 6) was also unarguable.
Claim not deemed an Aarhus Convention claim.
Neither s.87A FSMA 2000 nor the Prospectus Regulation are considered provisions of UK environmental law. The connection between the FCA's decision and environmental protection was deemed incidental and remote.