David McIlroy and Nathan Webb consider the recent Court of Appeal decision in CGL v RBS [2017] EWCA Civ 1073, which addressed the scope for small businesses bringing claims against banks for alleged mis-selling in breach of regulatory rules.
 
The decision involved three conjoined appeals and in each case the claimant alleged that it had been sold an interest rate hedging product in breach of the provisions in the FCA Handbook. The appellants had submitted claims to the redress scheme and contended that the banks in question had not dealt with their claims fairly and had not applied the rules which had been agreed with the FCA when the scheme was set up.
 
In considering whether banks owed companies a common law duty of care which paralleled the regulatory rules, Beatson LJ (giving the sole judgment of the Court) relied upon the previous decision in Green & Rowley v RBS [2013] EWCA Civ 1197 and held that there was no duty of care in relation to the redress scheme.
 
The article, which can be found here, explores Beatson LJ’s judgment and why, in the authors’ view, it was unexpected, illogical and unfair.

The article was originally published in the October 2017 edition of the Butterworths Journal of International Banking and Finance Law at page 548 and is reproduced here with permission and thanks.

Darragh Connell considers the recent High Court decision, Re BBH Property 1 Ltd & Ors [2017] EWHC 2584. Roth J appointed the Official Receiver as the provisional liquidator of 13 separate companies where it was likely they would be wound up in the public interest. 

The companies in question were involved in one of two projects. The projects were crowdfunded by investors sourced through introducer companies. In doing so, prospective investors were provided with various representations. Amongst the most notable representations was the statement made by BBH Property 1 Ltd on the front page of its investment brochure characterising the UK project as “a spectacular investment secured by a spectacular asset”. 

As it transpired, the purported representations were said to false. Security was not put in place and the investors’ monies were dissipated without the companies acquiring the properties. It appears that the investors may receive little return on the funds invested.

The Secretary of State for Business, Energy and Industrial Strategy presented petitions to wind up the 13 companies pursuant to s.124A of the Insolvency Act 1986 on the basis that it was expedient in the public interest to do so. In the mean time the Court exercised its jurisdiction under s.135 of the Act to appoint a provisional liquidator at any time after presentation of a winding-up petition but before the making of a winding-up order.

The article is reproduced here. This material was first published by Sweet & Maxwell, Provisional Liquidation in the Public Interest and the Perils of Crowdfunding “a spectacular investment” (2017) 30 Insolvency Intelligence, Issue 8 at p.129 and is reproduced by agreement with the Publishers.
 

Susanne Muth considers the FCA's recent update on systemic failings in the provision of advice on pension transfers. 

The update focuses in particular on the advice (or lack thereof) being given on transfers from defined benefits schemes to defined contributions personal pension schemes.

The article can be found here.

If you think you have lost out as a result of unsuitable pension transfer advice, we are able to advise you on your claim and on the best route to compensation.

Susanne Muth considers the recently released Interim Summary Report into the workings of RBS's Global Recovery Group.

Click here to download the article. 

If you think you may have a claim against a lender relating to your treatment by a business support unit — whether that's RBS/GRG or another bank — we are able to give you clear advice as to the best avenues to take it forward.

Contact clerks@forumchambers.com for assistance.
 

Ruhi Sethi-Smith has written the editorial for this month's Commercial Litigation Association Newsletter, looking at the duty to act in good faith in commercial contracts.

Click here to download the newsletter. 

Forum Head of Chambers, David McIlroy, was recently interviewed by Channel 4 News regarding the decision of the Serious Fraud Office to charge Barclays and four former bankers with fraud and financial assistance in connection with Barclays' dealings with Qatari investors in 2008. You can watch David's interview here.

For further information, please contact Pat Webber.
 

Forum Head of Chambers, David McIlroy, was recently interviewed by William Turvill of City A.M. regarding the swaps mis-selling Court of Appeal case, CGL v RBS.  The article is available here.

For further information, please contact Pat Webber.

We are delighted to announce that Susanne Muth has joined Chambers from October 2017.
 
Susanne appears regularly in the High Court in London and the regional Business and Property Courts.  Her wealth of experience in the areas of commercial litigation, professional negligence and financial services regulation will complement our expertise in our core areas of work and further broadens our offering to clients in London, Manchester and Bristol.
 
For further details of her practice please get in touch with Pat or Conor on 020 3735 8070 or clerks@forumchambers.com.

Going from Bad to Worse: Claims against Banks’ Business Support Units
 
The activities of the Royal Bank of Scotland’s Global Restructuring Group (“RBS GRG”) have been subject to widespread criticism in the media. The headlines have been welcome for affected customers and unpalatable for RBS. But what does it mean for your business?
 
At Forum, we know how to get behind the headlines. Whether you have suffered at the hands of GRG, or were unfortunate enough to be a customer in Barclays Special Situations / Business Support, Lloyds Global Business Support Unit, HSBC Commercial Recovery Unit or Santander Corporate Restructuring Team, you may be contemplating litigation. We have extensive experience of acting for small and medium-sized businesses against banks which have crossed the line in their treatment of customers. We have dealt with claims that banks have under-valued assets, refused sensible repayment schemes and asset sales, imposed property participation fee agreements (where the bank ends up owning a share in your business), imposed excessive fees and interest charges, as well as other wrongful actions. We know that some of these claims are best pursued as a part of a group action whilst others needed to be handled individually. One size does not fit all. We won’t treat you as just a number because we know the importance of providing a personalised service.
 
If you think you may have a claim against a bank relating to your treatment by a Business Support Unit, we are able to give you an initial assessment for a fixed fee and if we think that your claim has a realistic prospect of success we will give you clear advice as to the best avenues to take it forward.
 
If you want to find out more, please contact us at clerks@forumchambers.com or on 020 3735 8070.

We are delighted that Forum Chambers has been shortlisted in two categories of The Modern Law Awards 2016: Chambers of the Year, and ABS of the Year. 

The Modern Law Awards were established four years ago "to celebrate and identify sparkling talent and success in entrepreneurship, market development, business management and best practice in the modern legal services arena."

The results will be announced at a ceremony in November. 

Forum is delighted to announce that Nathan Webb has accepted an invitation to join chambers. 

Nathan has been with Forum since April 2016 as a Third Six Pupil. During that time he has shadowed and assisted members of chambers with both written work and court work. He has also accepted instructions in his own name and has been in court regularly.

He has appeared in the High Court winding up list and in the county court on winding up and bankruptcy petitions, as well as applications for possession, strike out/summary judgment and charging orders. He has also conducted small claims trials dealing with issues of contract and consumer credit law.

Solicitors have said that they “would not hesitate in instructing Nathan again”.

Nathan accepts instructions in all of chambers’ core areas of work.

Forum Chambers is delighted to announce that David McIlroy has been appointed as Visiting Professor in Banking Law at SOAS, University of London.

You can see David's SOAS profile here.

 

Lloyd Maynard is successful in High Court application for a stay of interest rate swap proceedings to enable claimants to pursue redress before the Financial Ombudsman Service. Burton J agreed that a stay of proceedings for 1 year would not cause the defendant banks prejudice and the Claimants could not be faulted for having issued proceedings close to the expiry of limitation.

A copy of the Lawtel summary is available here.
 

It is a virtue of English contract law that in litigation it produces outcomes in line with commercial expectations. For this reason, Lloyd Maynard considers dissatisfied customers within the FCA Redress Scheme are unlikely to have a claim for breach of contract. Find out why, as Lloyd addresses Mitting J’s hypothetical question raised in the recent Holmcroft Properties judicial review hearing.
 
This article has been published in the June 2016 edition of the Journal of International Banking and Finance Law ((2016) 6 JIBFL 356).

You can download a copy of our article from our Publications page.

Darragh Connell’s review of “The Law & Practice of True Sales” (1st Ed.) has been published in the April 2016 edition of the Journal of International Banking and Financial Law ((2016) 4 JIBFL 241). The book is written by Nicholas Grandage and Daniel Franks, partners at Norton Rose Fulbright LLP. It considers the relevant English law regarding the recharacterisation of a sales transaction as something other than an outright transfer such as the creation of a mere security interest.

A copy of Darragh’s review is available here. The book itself can be bought here via Lexis Nexis. 

Two recent High Court decisions dealt a blow to claimants wanting to allege that the FCA's interest rate swap Redress Scheme produced the wrong result. 

We take a look at the impact of those decisions for would-be Claimants who want to complain that the Redress Scheme produced the wrong result, and discuss the options still available to companies aggrieved by the outcome. 

You can download a copy of our article from our Publications page.

Darragh Connell has discussed the recent decision of Knowles J. in GSO Credit & Ors v Barclays & Anor [2016] EWHC 146 with Lexis Nexis. This judgment - the second handed down by a Judge sitting in the new High Court Financial List - has significant implications for the secondary loan trading market. 

For a copy of Darragh's interview, please click here.

For more information on the Financial List, see Philip Currie's earlier article here.

A new specialist list in the Commercial Court and Chancery Division has been set up to deal with complex and high-value financial disputes.

The Financial List, which is managed by designated judges from the two existing courts, can be used for any claim that principally relates to banking transactions and financial products, such as derivatives, bank guarantees, bonds, hedge funds, debt securities and private equity deals, provided that the claim is worth more than £50m.
The list can also be used for any claim which requires particular expertise in the financial markets, or any claim that raises issues of general importance to the financial markets. No limit in value applies to claims in these two categories.

A claim can be issued in either the Commercial Court or the Chancery Division, using one of the new designated claim forms, and will follow the same procedure in each case. Once issued, the claim will be allocated a specialist Financial List judge, who will manage the case from beginning to end. Urgent applications and vacation business can be heard by another Chancery or Commercial Court judge if no Financial List judge is available, and the court can order that enforcement be dealt with by Masters or District Judges.

The rules governing the operation of the Financial List are set out in new amendments to the Civil Procedure Rules: Part 63A and Practice Direction 63AA. There is also a new Financial List Guide, which broadly follows the procedure adopted in the Commercial Court.

The Financial Markets Test Case Scheme

Also coming into effect today is a pilot scheme which, unusually, gives the court jurisdiction to determine hypothetical disputes before a claim actually arises.

The new Practice Direction 51M establishes a two year pilot scheme for financial market test cases within the Financial List. A claim will qualify as a test case provided that it raises issues of general importance to the financial markets in relation to which “immediately relevant authoritative English law guidance” is needed.
Provided that such guidance is needed, a test case can be brought even before a cause of action exists between the parties. However, the parties are required to seek to agree the facts upon which the court will be asked to give its ruling.

Test cases can only be brought with the mutual agreement of the parties, who must have opposing interests as to the interpretation of the law. The court can give permission to allow trade or regulatory bodies to be joined to the proceedings, and the claim may be heard by a Financial List judge sitting alone, or sitting with either another Financial List judge or a Lord or Lady Justice of Appeal. The general rule for test cases is that there will be no order for costs.

David McIlroy looks at just how important a win Barnett Waddington v RBS was for businesses which entered into fixed rate loans.

Read his case analysis here.

David McIlroy and Lloyd Maynard explain why claims for forex manipulation will lead to larger payouts than have been seen for Libor fraud.

You can read the article here or download it here.

David McIlroy predicts a flood of forex manipulation claims in London following recent settlements in New York.

You can read the article here.

Darragh Connell recently delivered a webinar on banking litigation for Lexis Nexis in which he provided legal analysis of a range of recent high profile banking cases including:

• Property Alliance Group Limited v Royal Bank of Scotland plc [2015] EWHC 1557
• R (Holmcroft Properties Ltd) v KPMG LLP (unrep.)(24 April 2015)
• BNY Mellon v LBG Capital No.1 & Anor [2015] EWHC 1560

Further information is available here:
http://www.lexiswebinars.co.uk/practice-areas/financial-services/banking-litigation-update

Christopher Edwards provides an analysis of the recent decision in Taberna v Roskilde, a High Court case concerning misrepresentation in the context of the sale of loan notes.

Dowload the document here.

David McIlroy comments on the warning from the head of the FCA that the banks' middle managers fall into a regulatory blind spot.

You can read the FT article here or download it here. 

Fraudsters are becomingly increasingly sophisticated and the banks are slow to respond.

Original article here.

Read here about why David McIlroy thinks the rule of law matters.

David McIlroy chaired the MBL Financial Mis-selling Conference on 12 May 2015.  You can read his notes here.

Darragh Connell explains how high frequency trading and dark pools work. Read more.

Learn from Lloyd Maynard about how the banks manipulated the Forex markets. Click here to access the slides from his recent seminar.

Discover the boundaries of claims for breach of statutory duty. The boundaries of the claims for breach of the duties contained in the Handbook which regulates financial services are becoming clearer.  Click here to access Chris Edwards’ slides on the topic.