We have published our latest Banking Litigation Update, summarising some of the more important cases and developments affecting UK financial institutions over the past 6 months, including:

MIS-SELLING CLAIMS

  1. Confirmation of the Court’s current approach to IRHP mis-selling claims is good news for financial institutions
  2. High Court dismisses application in swaps mis-selling case for specific disclosure of similar complaints against the defendant bank
  3. High Court finds no continuing contractual duty to correct investment advice 
  4. FCA past business reviews: what duties, if any, do financial institutions owe directly to customers? High Court finds no contractual obligations, but tortious duties are arguable 
  5. High Court strikes out claim for mis-selling of an interest rate hedging product on the basis of a pre-existing settlement agreement which was binding and precluded such claim
  6. Regulatory standards found to be relevant to the sale of an unregulated product
  7. Court of Appeal grants permission to appeal question of whether a company falls within the definition of “private person” at section 138D FSMA and therefore has a right of action for breach of COBS

CONTRACTUAL CONSTRUCTION

  1. Court of Appeal resolves redemption dispute concerning £3.3bn “CoCo” notes by reference to their commercial purpose 
  2. Supreme Court clarifies test for implying terms into a contract 
  3. High Court applies key principles of contractual interpretation to CMBS documentation
  4. Court of Appeal considers limitations on the principle of business common sense as an aid to contractual interpretation

DISCLOSURE & PRIVILEGE

  1. No litigation privilege where witnesses were deceived as to true purpose of meetings 
  2. High Court confirms legal advice privilege can include lawyer’s summary of facts
  3. Court orders disclosure of confidential SFO and client documents 
  4. High Court refuses order requiring a party to comply with data subject access request

JURISDICTION

  1. Court refuses jurisdiction challenge in respect of a claim for declaratory relief for breach of a jurisdiction clause (and grants summary judgment at the same hearing) 
  2. Commercial Court protects express choice of jurisdiction under Article 25 of the Recast Brussels Regulation, finding no trespass on the administrative acts of another state

OTHER SIGNIFICANT DECISIONS

  1. Directors’ duties owed to company not shareholders when seeking shareholder approval for transaction 
  2. Application of the SAAMCo principle to negligent valuations in information memoranda 
  3. Supreme Court rewrites English law rule on penalties
  4. Court casts doubt on the use of Norwich Pharmacal orders to require recipient banks to identify customers receiving mistaken payments
  5. FCA uses Court proceedings for the first time to obtain both financial penalties and permanent injunctions against a firm in a case of alleged market abuse

To read the full Update, please click here