Commercial Court dismisses challenge to exercise of options in swap confirmations incorporating 2000 ISDA Definitions

The Commercial Court has dismissed a challenge to the exercise of options contained in five extendable interest rate swaps which incorporated the 2000 ISDA Definitions: Alfred Street Properties Ltd v National Asset Management Agency [2020] EWHC 397. The challenge was brought on the basis that notice was either not given by a contractually prescribed method … Read more

LIBOR transition: What does the US regulator’s proposed legislative fix mean for UK financial markets?

The Alternative Reference Rates Committee (ARRC) in the US has published a proposal for New York legislation to assist the transition of financial contracts away from US dollar (USD) LIBOR:  Proposed Legislative Solution to Minimize Legal Uncertainty and Adverse Economic Impact Associated with LIBOR Transition (see the ARRC press release). The legislation is not yet … Read more

What does Lloyds/HBOS tell us about sections 90 and 90A of FSMA?

Herbert Smith Freehills LLP have published an article in Butterworths Journal of International Banking and Financial Law considering how the findings in Sharp v Blank [2019] EWHC 3078 (Ch) (also known as The Lloyds/HBOS litigation) may be of assistance in interpreting sections 90 and 90A of the Financial Services and Markets Act 2000. Lloyds/HBOS is the only securities … Read more

Class actions against financial institutions: impact of High Court decision to order security for costs against a litigation funder

In a recent decision which will be welcomed by defendants to funded group litigation, including financial institutions, the High Court has ordered security for costs against a commercial litigation funder in Rowe v Ingenious Media Holdings PLC [2020] EWHC 235 (Ch). The decision follows the court’s approach to security applications against litigation funders in the RBS Rights … Read more

High Court finds no implied contractual duties in connection with past business review

Since 2015 there has been a series of judgments in which claimant customers have (ultimately unsuccessfully) sought to impose contractual and tortious duties on financial institutions relating to the institution’s conduct of the 2012 past business review into the alleged mis-selling of interest rate hedging products (the “PBR”). The latest decision from the High Court … Read more

Is coronavirus likely to be a valid basis for avoiding contractual obligations?

With the continuing rise in the number of cases of novel coronavirus worldwide, in addition to obvious implications of the outbreak for individuals, businesses are likely to be exposed to a heightened risk of legal implications arising across their supply chain. In this briefing, Natasha Johnson, Robert Moore and Yasmin Mitha consider the scope for parties to rely on coronavirus as … Read more

The Bank of England’s attempts to “turbo-charge” LIBOR transition in the cash markets: will these increase or decrease the litigation risks?

The past week has been important for developments in LIBOR transition, particularly for the cash markets where progress has hitherto been less advanced than other markets. On 26 February 2020, the International Swaps and Derivatives Association (ISDA) and Securities Industry and Financial Markets Association (SIFMA) hosted a joint conference on benchmark reform in London. One … Read more

Court of Appeal confirms funders’ adverse costs liability not limited to amount of funding provided: Arkin “cap” not a binding rule

A decision handed down by the Court of Appeal today has dismissed the suggestion that there is a fixed limit on a commercial litigation funder’s liability for the other side’s costs when a claim it has funded fails: Chapelgate Master Fund Opportunity Ltd v Money [2020] EWCA Civ 246. This is a significant decision and represents … Read more

BANKING LITIGATION PODCAST EPISODE 15: MONTHLY UPDATE – FEBRUARY 2020

We have just released our monthly update podcast, in which we discuss and debate the key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Daniel May. You can also listen … Read more