UK: England and Wales: common law derivative claims

The ICLR has published a summary for the recently reported decision McGaughey v Universities Superannuation Scheme Ltd [2022] EWHC 1233 (Ch): see here. To quote directly from the summary:

"In order to establish that they had standing or a sufficient interest to continue a claim, it was essential for derivative claimants to demonstrate both that the subject company had suffered a loss and that that loss was reflective of their own loss. The availability of an alternative independent claim against the wrongdoer, for example a breach of trust claim, did not prevent the derivative claimant from having standing. A derivative claimant relying on the fraud on a minority exception to the general rule had to establish a prima facie case that the defendants had committed a deliberate or dishonest breach of duty or that they had improperly benefitted themselves at the company’s expense. It did not provide much assistance to adopt the analysis of a fraud on a power".