Who are “persons discharging managerial responsibility” (PDMR) within an issuer of securities under s.90A and Schedule 10A of Financial Services and Markets Act 2000 (FSMA)?

In the case of Allianz Global Investors GmbH and others v G4S Limited (formerly known as G4S PLC) [2022] EWHC 1081, the High Court considered the meaning of PDMR for the purposes of s.90A and Schedule 10A of the Financial Services and Markets Act 2000 ("FSMA"). It was determined that senior executives (responsible for managerial decisions affecting future developments and business prospects of a company) did not fall under the definition of PDMR where the issuer had directors.

Further, the Court clarified that the term “director” is broad; it includes de jure directors (properly and validly appointed directors of a company), de facto directors (persons who claim and purport to act as directors, although never actually or validly appointed as such) and possibly also shadow directors (persons who are not de jure directors, but in accordance with whose directions and instructions the directors of a company are accustomed to act (section 251(1) Companies Act 2006)).

1. Section 90A and Schedule 10A of FSMA

To establish the civil liability of issuers of publicly traded securities for the publication of false or misleading or incomplete information and for dishonest delay in the publication of information to the capital markets under s.90A and Schedule 10A FSMA, it must be proven that a PDMR within the issuer: (1) knew or was reckless about whether a statement was untrue or misleading; or (2) knew an omission to be a dishonest concealment of a material fact; or (3) acted dishonestly in delaying the publication of that information.

A PDMR is defined under Schedule 10A, paragraph 8(5) FSMA as: 

"(a) any director of the issuer (or person occupying the position of director, by whatever name…