BANKING LITIGATION PODCAST EPISODE 18: MONTHLY UPDATE – JUNE 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 Alice Whyte.

You can also listen on Apple or Spotify and find links to our blog posts on the cases covered in this podcast below:

Please subscribe to the podcast channel here to listen to our regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions.

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Consultant
+44 20 7466 2948
Alice Whyte
Alice Whyte
Professional Support Paralegal
+44 20 7466 3782

BANKING LITIGATION PODCAST EPISODE 17: MONTHLY UPDATE – MAY 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 Nic Patmore.

You can also listen on Apple or Spotify and find links to our blog posts on the cases covered in this podcast below:

Please subscribe to the podcast channel here to listen to our regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions.

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Consultant
+44 20 7466 2948
Nic Patmore
Nic Patmore
Associate
+44 20 7466 2298

BANKING LITIGATION PODCAST EPISODE 16: MONTHLY UPDATE – MARCH / APRIL 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 Mannat Sabhikhi.

You can also listen on Apple or Spotify and find links to our blog posts on the cases covered in this podcast below:

Please subscribe to the podcast channel here to listen to our regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions.

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Consultant
+44 20 7466 2948
Mannat Sabhikhi
Mannat Sabhikhi
Associate
+44 20 7466 2859

Biannual Banking Litigation Update: October 2019 – April 2020

Welcome to our latest Banking Litigation Update, in which we highlight a number of the most important cases and developments affecting UK financial institutions over the past six months. You can read our full briefing here: Banking Litigation Update.

Publishing this update in April 2020, we must begin with a reference to the COVID-19 pandemic. While it is primarily a humanitarian crisis, it has of course resulted in unprecedented levels of global financial market volatility and the future economic outlook is uncertain. This inevitably exposes financial services institutions to heightened legal risk in relation to their lending and other banking businesses. However these sorts of issues will take time to manifest and either resolve or work their way through the courts system. To date, therefore, the judgments handed down by the UK courts relating to COVID-19 have dealt exclusively with practical and procedural issues. We have included a COVID-19 section in this publication, highlighting the most important judicial developments in this context so far. However, this is an area of rapid change, and so please check out our COVID-19 crisis hub for our latest insights to keep you abreast of legal issues impacting your business now and those you may face next.

The past six months have been a busy period for securities class actions. The most important development in this sector is undoubtedly judgment being handed down in The Lloyds/HBOS Litigation, which was the first securities class action to reach trial in the UK. HSF successfully defended the claim against Lloyds and the judgment provides much needed clarification on some of the most important battlegrounds which arise in shareholder class actions as well as guidance for listed companies and their directors on various key aspects of capital markets and M&A transactions. But other judgments during this period have also helped to shed light on key issues such as reliance (Tesco), whether s.90A of the Financial Services and Markets Act 2000 (FSMA) applies to shares held in dematerialised form (Tesco again), and the liabilities/obligations of commercial litigation funders to put up security for costs (Rowe v Ingenious Media) and/or to pay the other side’s costs when a claim it has funded fails (Chapelgate v Money). In the world of class actions more generally, the latest big news is the decision of the Supreme Court in Morrisons, which held that the corporation was not vicariously liable for the actions of a rogue employee in leaking employee data to a publicly available file-sharing website. From a class actions perspective, it’s clear that data breach class actions are on the rise in the UK and this judgment should be seen as a setback not a roadblock.

The so-called Quincecare duty of care continues to attract judicial scrutiny, with judgment being handed down by the Supreme Court in the very first case in which this duty was found to have been owed and breached (Singularis v Daiwa). As a reminder, this is the duty imposed on a bank where it has reasonable grounds (although not necessarily proof) for believing that a payment mandate by an authorised signatory of its customer is an attempt to misappropriate the funds of its customer. The spate of recent judgments considering this duty has exposed a risk area for financial institutions as to how payment requests are managed and monitored. Judicial clarification is continuing to evolve, which will determine what (if any) changes need to be made to standard practice, and so we are monitoring developments closely.

This update would not be complete without the obligatory ground-breaking decision on disclosure/privilege. In this edition, we have the decision of the Court of Appeal in Jet2, which found in favour of a dominant purpose test for legal advice privilege. The good news, from the perspective of those seeking to obtain the protection of legal advice privilege for lawyer/client communications to seek or obtain legal advice, is that the decision in this case should not significantly narrow down the protection of legal advice privilege as it was previously understood.

Since the last edition of this update, we have seen a noticeable uptick in communications from the UK regulators in relation to the discontinuation of LIBOR by end-2021, a deadline the regulators say they remain committed to notwithstanding the COVID-19 crisis. We continue to monitor these developments and consider the effect they may have on the litigation risks of transition, in particular for “tough” legacy contracts which reference LIBOR and are not moved off LIBOR before the benchmark rate ceases. You can find our most recent publications in the relevant section below. Of particular note is the discussion of the US regulator’s bold move to introduce a legislative fix for LIBOR discontinuation, where we have considered its effect on the litigation and regulatory risks posed by LIBOR transition, and highlighted the potential consequences for UK financial markets.

In the current environment, where the need to multi-task is greater than ever before for many people, our banking litigation podcast series offers an easy way to keep up to date with relevant legal developments. You can find archived podcast episodes here and subscribe for the podcast channel here, to listen to our regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions.

We hope you find our update useful and, as ever, please feel free to contact one of us or your usual Herbert Smith Freehills contact if there are any topics which you would like to discuss further.

For more information, please read our Banking Litigation Update.

Rupert Lewis
Rupert Lewis
Partner
+44 20 7466 2517
Chris Bushell
Chris Bushell
Partner
+44 20 7466 2187
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948

BANKING LITIGATION PODCAST EPISODE 11: MONTHLY UPDATE – OCTOBER 2019

Earlier this month, we launched a brand new podcast channel. Our latest monthly update podcast is now live on that channel. In the podcast, we look at key recent judgments likely to be of interest to financial institutions.

Also listen on Apple or Spotify.

You can subscribe to the podcast channel here to listen to our regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions.

You can find links to our blog posts on the cases covered in the latest podcast below:

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948
Mark Tanner
Mark Tanner
Senior Associate
+44 20 7466 2412

Biannual Banking Litigation Update: April 2019 – October 2019

Welcome to our latest Banking Litigation Update, in which we highlight a number of the most important cases and developments affecting UK financial institutions over the past six months.

During this period, there have been a considerable number of judgments relating to the contractual interpretation of financial services agreements. While the legal principles of contractual construction are well-established, this continues to be an area in which disputes are ripe in the financial services sector (and beyond), with many cases progressing to appellate level. Perhaps this is because rival interpretations are often both arguable, but with commercial outcomes which are starkly opposed. In particular, the courts have considered a number of key decisions looking at the role of the contract in circumstances where there has been suspicion of criminal activity. For example, the contractual discretion of a bank to close a customer account without notice where there is suspicion of money laundering (N v RBS); and the right of a borrower to withhold payment under a facility agreement where there is a risk of US “secondary” sanctions (Lamesa v Cynergy). You can read more about these cases by following the link to the Banking Litigation Update below.

A cause of action which has received significant judicial scrutiny recently is the so-called Quincecare duty of care. This is the duty imposed on a bank where it has reasonable grounds (although not necessarily proof) for believing that a payment mandate by an authorised signatory of its customer is an attempt to misappropriate the funds of its customer. The duty relates to what a bank must/must not do in such circumstances. A case considering whether the defence of illegality can respond to a claim for breach of the Quincecare duty has gone all the way to the Supreme Court and judgment is expected this week (Singularis v Daiwa). In another case, the Court of Appeal has found that the express terms of a depository agreement did not exclude the duty and were not inconsistent with its imposition (JPMorgan v Nigeria). Until a couple of years ago, these arguments had only reached trial in a couple of cases since the early 1990s (when the Quincecare duty was established). Banks looking at the way they respond to payment requests which arouse suspicion would be wise to keep abreast of the judicial clarification which is continuing to evolve in this area.

An important regulatory development to be aware of is the latest EU Prospectus Regulation (EU/2017/1129), which is now in full force and effect and represents the most significant overhaul of European securities law since the Prospectus Directive came into force in 2005. The changes introduced will have a direct impact on securities litigation claims, which we have explored in our blog post: What securities litigators need to know about the new Prospectus Regulation.

Looking to the future, the biggest risk area (aside from Brexit) continues to be the discontinuation of LIBOR (and other IBORs) from 2021. IBOR transition teams across the globe are currently grappling with the difficulties posed by transition from IBOR benchmark rates to risk free rate alternatives. However, given the prevalence of IBORs as interest rate benchmarks in contracts across multiple markets and jurisdictions, the demise of IBORs raises questions about the litigation risks which parties to such contracts may face. In our last Banking Litigation Update, we referred you to our article in the Journal of International Banking Law and Regulation: LIBOR is being overtaken: Will it be a car crash? (2019) 34 J.I.B.L.R.. Since then, the FCA and PRA have published a joint statement setting out their observations from the responses of major banks and insurers in the UK to the Dear CEO letters last year (which asked for details of LIBOR preparedness). This joint statement highlighted that there is real divergence across the market, which we have considered in further detail in our blog post: LIBOR discontinuation – FCA thematic feedback on responses to Dear CEO letter.

In the past few months, we have launched two new products, aimed at keeping in-house lawyers at banks up to date with the latest banking litigation developments. In June 2019, we launched a new banking litigation blog, to which you can subscribe to receive email updates on the latest cases as soon as they are published. Earlier this month, and following the success of our banking litigation podcast series, we also launched a new podcast channel dedicated to financial services litigation and regulation. The purpose of the channel is to make it easy for our clients to subscribe for podcast updates which are specifically relevant to them. You can subscribe for the new channel here.

We hope you find our update useful and, as ever, please feel free to contact one of us or your usual Herbert Smith Freehills contact if there are any topics which you would like to discuss further.

Read our full Banking Litigation Update.

 

Rupert Lewis
Rupert Lewis
Partner
+44 20 7466 2517
Chris Bushell
Chris Bushell
Partner
+44 20 7466 2187
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948

HERBERT SMITH FREEHILLS LAUNCHES NEW PODCAST CHANNEL DEDICATED TO FINANCIAL SERVICES LITIGATION AND REGULATION

We are delighted to announce the launch of a brand new podcast channel to provide regular bite-sized broadcasts covering both litigation and regulatory developments for banks and other financial institutions. You can subscribe for the new channel here (we suggest doing this from your mobile device so you can select your preferred app for listening to podcasts, e.g. Apple, Spotify etc.).

This follows the success of our banking litigation podcast series launched earlier this year, which has become popular with in-house lawyers looking for a convenient and time-efficient way to keep on top of rapidly changing developments. The series takes the form of a monthly episode on key developments of interest to the industry, and also special editions on hot topics (for example, the litigation risks arising from LIBOR discontinuance). You can access the back-catalogue of podcasts through the subscription link above or on our banking litigation blog. The platform will be further enhanced by our FSR team who will soon release their own podcast series, providing frequent regulatory insights in the financial services sector.

The launch coincides with the release of the 10th episode of the banking litigation podcast series, which can be downloaded on all the usual platforms: BuzzsproutApple and Spotify. This edition is a monthly update podcast, looking at key recent judgments likely to be of interest to financial institutions. You can find links to our blog posts on the cases covered in this podcast below:

We encourage you to subscribe to the blog to receive posts as soon as they are published.

Rupert Lewis
Rupert Lewis
Partner, Head of Banking Litigation
+44 20 7466 2517
Hywel Jenkins
Hywel Jenkins
Partner, Head of Financial Services Regulatory (UK)
+44 20 7466 2510
John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948

BANKING LITIGATION PODCAST EPISODE 10: MONTHLY UPDATE – SEPTEMBER 2019

In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions.


Also listen on Apple or Spotify.

You can find links to our blog posts on the cases covered in this podcast below:

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948
Sousan Gorji
Sousan Gorji
Senior Associate
+44 20 7466 2750

Banking Litigation Podcast Episode 9: Monthly Update – August 2019

In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions.

Also listen on Apple or Spotify.

You can find links to our blog posts on some of the cases covered in this podcast below:

 

Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948
Dan Eziefula
Dan Eziefula
Senior Associate
+44 20 7466 2182

Banking Litigation Podcast Episode 8: Monthly Update – July 2019

In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions.

Also listen on Apple or Spotify.

You can find links to our blog posts on some of the cases covered in this podcast below:

John Corrie
John Corrie
Partner
+44 20 7466 2763
Ceri Morgan
Ceri Morgan
Professional Support Lawyer
+44 20 7466 2948