Shareholder class actions – new webinar and “handy client guide”

Herbert Smith Freehills has today released the third in our series of webinars on class actions in England and Wales, looking at shareholder class actions. In the presentation Simon ClarkeHarry Edwards and Kirsten Massey discuss the outlook for shareholder group actions in England and Wales, the types of claims (eg under sections 90 and 90A FSMA) and remedies likely to be pursued by shareholder group claimants, and some challenges in bringing and defending these actions. Clients and contacts of the firm can register to access the archived version by contacting Prudence Heidemans.

The webinar is accompanied by the fourth in our series of short guides to class actions in England and Wales, Shareholder class actions, which has been published here (together with our first three editions: (i) Overview of class actions in the English courts; (ii) Group Litigation Orders; and (iii) Data breach class actions).

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Harry Edwards
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Commercial Court rejects EURIBOR implied representations

The Commercial Court has dismissed claims that a bank made implied representations as to EURIBOR rate-setting in the context of selling an interest rate swap: Marme Inversiones 2007 SL v NatWest Markets plc & Ors [2019] EWHC 366 (Comm).

This is the second civil court trial judgment considering IBOR manipulation, the first being Property Alliance Group Ltd v Royal Bank of Scotland [2018] 1 WLR 3529 in which the claim relating to LIBOR manipulation was also dismissed (see our banking litigation e-bulletin). Together, these decisions are a reminder of the difficulties of proving allegations that IBOR-setting banks made implied representations when selling IBOR-linked products. The combined effect of these judgments suggests:

  • The requirement to identify specific conduct which led to the implied representation being made is important (and should not be underestimated). In the context of these transactions, a bank simply entering into an IBOR-linked swap is unlikely to justify the implication of any representation wider than the limited representation formulated by the Court of Appeal in PAG (see below).
  • Implied representations must be certain and obvious: if there is “elasticity of possible meaning“, this will indicate the absence of an implication.
  • The broader and more complex the alleged representations, the more active and specific the conduct must be to give rise to the implication.
  • Proving reliance on any representations which are implied will be fact-specific and onerous.
  • Falsity must be specifically proven: it is not sufficient to draw inferences on the basis of conduct relating to other benchmarks (such as an IBOR in a different currency) or indeed findings of the regulator.

In PAG, the Court of Appeal held that the bank made the narrow implied representation (at the time of entering into the swaps) that it was not itself seeking to manipulate GBP LIBOR and did not intend to do so in the future (however the claimants could not prove that the representation was false). In this case, the court’s view was that a similar narrow representation in relation to EURIBOR could theoretically have been implied, but this implied representation was not alleged, and was not shown to be false in any event.

Background

The proceedings arose out of interest rate swaps set by reference to EURIBOR, entered into between Marme Inversiones 2007 SL (“Marme“) and the defendant banks (the “Banks“). The Banks sought various declarations that they had lawfully terminated the swaps and that Marme owed them €710 million plus interest.

Marme sought rescission of the swaps ab initio and/or damages of up to €996 million on the basis that one of the Banks (RBS plc, “RBS“) negligently/fraudulently made representations regarding the integrity of the process of setting EURIBOR (on its own account and as agent for the other Banks) and that Marme relied upon those representations when entering into the swaps. Marme did not contend that the representations were made expressly, but that they should be implied from the circumstances and RBS’s conduct.

Decisions

The court found in favour of the Banks. It granted the declarations sought and held that the alleged representations did not fall to be implied.

The court distilled the following principles from existing authorities considering implied representations:

  1. It is possible for a representation to be made expressly or impliedly through words or conduct. For a representation to be implied, silence or mere assumption is not usually enough as there is no general duty of disclosure. It is necessary to view the words or conduct objectively to determine whether an implied representation has been made. The natural assumptions of the reasonable representee will be helpful in assessing whether an implied representation has been made through the conduct of the representor.
  2. Whether or not a representation is implied is ultimately a question of fact to be determined in the circumstances of the particular case: see also Deutsche Bank AG v Unitech Global Ltd [2013] EWCA Civ 1372.
  3. More may be required, in terms of words or conduct, to prove an implied representation which is wide in meaning or complex.
  4. It is less likely that a representation that is vague, uncertain or ambiguous would be objectively understood to have been made from words or conduct.

With these principles in mind, the court considered the representations alleged in the instant proceedings, identifying a number of (legal and factual) difficulties with the case alleged by Marme. The key points which are likely to be of broader interest are summarised below.

  • Marme alleged that in the light of PAG, at least some of the alleged representations in this case should be treated as having been “plainly” made by RBS. The court found that in truth PAG provided no support at all for Marme’s case. In PAG, the claimants similarly sought rescission of swap agreements and/or damages on the basis of (among other things) alleged implied fraudulent representations. The Court of Appeal in PAG found that the representations as pleaded could not be implied, but decided that a different implied representation would be justified:

In the present case there were lengthy discussions between PAG and RBS before the swaps were concluded as set out by the judge in the earlier part of her judgment. … RBS was undoubtedly proposing the swap transactions with their reference to LIBOR as transactions which PAG could and should consider as fulfilment of the obligations contained in the loan contracts. In these circumstances we are satisfied that RBS did make some representations to the effect that RBS itself was not manipulating and did not intend to manipulate LIBOR. Such a comparatively elementary representation would probably be inferred from a mere proposal of the swap transaction but we need not go as far as that on the facts of this case in the light of the lengthy previous discussions.

  • Marme submitted that, in the same way as PAG, the representations in this case should be inferred from a mere proposal of the swaps. However, the court observed that the representations in this case were not the same as the (narrow) implied representations reformulated by the Court of Appeal in PAG.
  • The court held that the implied representations were not supported by any other authority, in particular Deutsche Bank v Unitech offered no support. The court emphasised that although the Court of Appeal in Deutsche Bank v Unitech granted permission to amend to include pleas of implied representations about LIBOR, it would be wrong to regard what was decided as having too great a significance (given the appeal related to an interlocutory application to amend statements of claim and merely found that the points advanced were arguable).
  • Importantly, the court was concerned that if Marme’s case on implication was to succeed, it would inevitably involve a ‘watering down’ of the requirement that specific conduct be identified from which any alleged representation is said to arise. It said Marme could identify no conduct other than RBS entering into (and allegedly proposing) the swaps to justify the implication of any representation wider than the limited representation formulated by the Court of Appeal PAG. In the court’s view, this was an “intractable difficulty” for Marme.
  • The court also considered the decision in Geest v Fyffes [1991] 1 All ER (Comm) 672. The court in that case had set out a “helpful test” for evaluating the representor’s conduct in cases of implied representations, which is: to consider whether a reasonable representee would naturally assume that the true state of facts did not exist and that, if it did, he would necessarily have been informed of it. The Court of Appeal in PAG agreed this test was helpful, but it warned that this should not water down the requirement that there must be clear words or clear conduct of the representor from which the relevant representation can be implied. Here, the court said that invocation of the “helpful test” in Geest was not enough by itself – Marme could not merely rely on an internal assumption on its part that RBS failed to correct.
  • The court was concerned about the distinct lack of certainty (and associated lack of obviousness) as to what was entailed in the alleged representations. It said there was the same “elasticity of possible meaning” which had operated against the implication in Raiffeisen Zentralbank Osterreich AG v RBS [2010] EWHC 1392 (Comm).
  • The court accepted that passive conduct may sometimes be sufficient for the implication of a representation. However, it said the broader and more complex the alleged representations, the more active and specific the conduct must be to give rise to the implication.
  • In the court’s view, RBS’s conduct in going along with the swaps was sufficient for the implication of a much narrower representation: namely that RBS was not itself manipulating, and did not intend to manipulate or attempt to manipulate, EURIBOR. However, that implied representation was not put forward by Marme in the action. The court said that this was probably because Marme recognised that it would be “in no position to establish falsity“.

The court therefore rejected the implication of the representations alleged by Marme, the action failed and the court held that the banks were entitled to the declaratory relief sought. In case it was wrong in these conclusions, the court went on to consider questions of falsity and reliance, but this was on an obiter basis given its primary conclusions.

Donny Surtani
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John Corrie
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Ceri Morgan
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PAG v RBS: Court of Appeal dismisses IRHP mis-selling and LIBOR manipulation claim

The Court of Appeal has dismissed the entirety of the long-awaited appeal in Property Alliance Group v The Royal Bank of Scotland [2018] EWCA Civ 355. The result is that all claims against the defendant bank have failed. This is the first substantive decision involving allegations of LIBOR manipulation and interest rate hedging product (“IRHP”) mis-selling to reach the Court of Appeal, and it offers a number of points of binding authority, which are helpful from the perspective of financial institutions.

In this executive summary, we highlight the key legal and factual points decided by the Court of Appeal which are likely to have wider application to claims involving alleged mis-selling of financial products, together with potential commercial implications.

We have prepared a more detailed case analysis in our banking litigation e-briefing, which can be accessed via the hyperlink.

  1. The Court of Appeal has confirmed that the expression ‘mezzanine’ or intermediate duty of care is best avoided. There is no “continuous spectrum of duty, stretching from not misleading, at one end, to full advice, at the other end”. Absent an advisory relationship or special circumstances in which a specific broader duty is established, a financial institution owes no duty to explain the nature or effect of a proposed arrangement to a prospective customer. This restates the orthodox position, from which earlier cases had seemed to depart.
  2. The extent of the duty owed in a non-advised sale of financial products will therefore typically be a duty not to misstate (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465). In order to establish a specific broader duty of care, claimants will need to satisfy one of the traditional tests for establishing a duty of care (as set out in Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28). Further, claimants will need to distinguish the instant case, in which no such broader duty of care was found on the facts.
  3. Of particular interest was the decision of the lower court (flowing from the point above) that, absent special circumstances, there was no positive duty on the defendant bank when selling the IRHPs to disclose to the claimant the bank’s internal contingent liability figure for the IRHP. The Court of Appeal noted that several first instance judgments had reached the same conclusion and could find no basis for interfering with the High Court’s decision on this point. Absent special circumstances, this decision – along with the previous decision of the Privy Council in Deslauriers and Anor v Guardian Asset Management Limited (Trinidad and Tobago) [2017] UKPC 34 (see our e-bulletin) – means that it will be extremely difficult for claimants to argue that these figures ought to have been provided (indeed, the Court of Appeal noted that it remains the defendant bank’s practice not to do so).
  4. This case should therefore help focus the issues in ‘mezzanine’ duty claims. It may be appropriate for defendant banks to review the scope of any more onerous information-related duties which have been alleged, and make clear in correspondence that the burden is on the claimant to prove the existence of a specific duty of care (and this burden is likely to be reasonably onerous). Such claims may be amenable to strike out and/or summary judgment. Addressing such issues early in proceedings may help reduce the scope of disclosure and the evidence to be served, ultimately reducing time and cost.
  5. Departing from the judgment of the High Court, the Court of Appeal did find that in selling GBP LIBOR linked products, the bank made the narrow implied representation (at the time of entering into the IRHPs) that it was not itself seeking to manipulate GBP LIBOR and did not intend to do so in the future. However, on the current facts, the claimant could not prove that the representation (concerning GBP LIBOR) was false. The Court of Appeal held that falsity will need to be specifically proven; it would not be sufficient to invite the court to draw inferences on the basis of conduct relating to other benchmarks (such as LIBOR in a different currency) or indeed findings of the regulator. It is thus likely that claimants will continue to face significant hurdles to succeed in such claims. In particular, proving reliance on any representations (which is likely to be fact specific) and that the representations were in fact false, will be onerous.
  6. Although the Court of Appeal did not overturn the High Court’s decision, it emphasised a point likely to arise in other cases involving an exercise of a contractual discretion – namely that such a contractual power needs to be exercised for legitimate commercial aims and not used maliciously. In the current case, the bank exercised a power in the relevant loan agreement to instruct a valuer to prepare a valuation of the claimant’s assets which were charged to it. The claimant argued that the bank had no reason to do so and thus the exercise of the power was wrongful. On the facts, the Court of Appeal disagreed. However, the rule may be of wider application.

For a more detailed analysis of the decision, read our banking litigation e-briefing.

John Corrie
John Corrie
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Ceri Morgan
Ceri Morgan
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Ajay Malhotra
Ajay Malhotra
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Nic Patmore
Nic Patmore
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High Court rejects another interest rate hedging product mis-selling claim: key points of general application

London Executive Aviation Ltd v The Royal Bank of Scotland PLC [2018] EHWC 74 (Ch) is the latest in the line of unsuccessful claims against financial institutions based on allegations of mis-selling interest rate hedging products (“IRHPs”). The bulk of the reported cases in this field to date are interlocutory decisions, so the full reasoned judgment in this case provides a helpful summary of the current law and the court’s approach. Key points of general application to note are as follows:

  • It is well-established that banks do not generally owe any duty to advise on the merits of investments. However, if it is alleged that a bank actively agreed to give advice in relation to the investment and therefore took on the duty to advise with reasonable care and skill, a claimant must be “able to identify words of advice”.
  • If advice has been given by a bank, the claimant must still prove that there was a relationship of proximity between the parties giving rise to a duty of care on the part of the bank. Factors pointing against such a duty in the instant case included the fact that there was no written agreement to advise (the bank would only be remunerated for its time and effort if the customer in fact purchased an IRHP) and the sophistication of the claimant.
  • Significantly, the court endorsed the formulation of the ‘mezzanine’ duty articulated in Property Alliance Group v Royal Bank of Scotland EWHC 3342 (Ch): the potential duty of care under consideration is wider than a duty not to misstate, is fact dependent and is a duty “falling on the advisory spectrum”; thus a bank salesperson is not always under a duty to explain fully the products he/she wishes to sell. In the instant case, the court did not expressly decide whether the so-called mezzanine duty existed, because it found that there was no potential breach on the facts. There are conflicting first instance decisions as to whether or not the so-called mezzanine duty may arise in this context, the trend has been to find against such a duty (see our recent e-bulletin), but the issue is likely to need to be resolved at appellate level.
  • The court will be alive to the fact that witness evidence may be affected by hindsight and is prepared to make inferences from the contemporaneous correspondence and documentation, even where this contradicts oral testimony at trial.

Against the growing body of authority in favour of the banks, claimants have been creative in their attempts to get around the legal obstacles. An argument recently adopted by claimants concerns the alleged failure by banks to disclose internal credit liabilities at the time the IRHP was sold. Claimants allege that if the magnitude of the credit liability had been disclosed, they would have recognised that the IRHP was too risky and effectively wiped out any benefit. This argument was made in the current case on two different footings. Firstly, the claimant alleged that the bank had breached its so-called mezzanine duty by failing to disclose the bank’s contingent liability for the IRHPs in question (known in the defendant bank as the credit line utilisation (“CLU”)). Secondly, the claimant alleged that the bank had fraudulently or negligently misrepresented the benefits of entering into the IRHPs, in particular by failing to disclose the CLU.

Both arguments failed on the facts, with the court emphasising that a claimant must be able to show that an appreciation of the contingent liability (the CLU) would have made a difference to how the claimant would have proceeded with the transaction. This firm stance in relation to contingent liabilities follows a recent decision of the Privy Council, which confirmed that in a commercial relationship between experienced lenders and borrowers, the lender will not ordinarily owe a duty of care to disclose information about its internal lending policies or its approach to evaluating loan applications (see Deslauriers and another v Guardian Asset Management Limited (Trinidad and Tobago) [2017] UKPC 34, read our e-bulletin).

BACKGROUND

The parties

London Executive Aviation Ltd (“LEA”) was a small private aircraft chartering business with annual profits of circa £1 million. In 2007 and 2008, it took out two loans (the “Loans”) with Lombard North Central plc, part of the Royal Bank of Scotland group, for a total of £12.9 million to purchase more aircraft to expand the business. Under the Loans, interest was calculated at a variable rate (subject to a minimum base), but LEA paid fixed monthly instalments with a single balloon payment at maturity. The size of the balloon payment was dependent on whether interest rates fell or rose through the term of each Loan. If interest rates rose, the fixed payments would pay off less capital and more interest and the balloon payment would be higher. If rates fell, the balloon payment would be smaller as the fixed payments would service more of the capital.

LEA was introduced to an FSA authorised IRHP adviser at one of the companies in the Royal Bank of Scotland group (the “Bank”), Mr Brindley, to discuss hedging the original Loan in July 2007, to mitigate the risk of a large balloon payment. Mr Brindley had extensive communications with LEA’s directors (including Mr Margetson-Rushmore) in 2007 and then again in 2008, which included hedging the second Loan. Mr Margetson-Rushmore’s wife was also party to those discussions. She was a qualified solicitor (having trained at Linklaters) with a subsequent 15-year banking career, including working in the field of Eurobonds and heading the UK leveraged finance team at UBS AG. However, she had not been involved with banking or financial services since 2004 and had no direct experience of IRHPs.

The Swaps

In February 2008, LEA entered into two relatively complex IRHPs (together, the “Swaps”):

  1. A 10-year ‘dual rate swap’ under which LEA paid a fixed rate of interest of 4.69% if the floating rate stayed between a floor of 4% and a ceiling of 6.25%. If the floating rate fell below the floor or above the ceiling, LEA paid 5.35%. The notional amount of capital was £4 million for years 0-5 and £6 million for years 6-10. It was cancellable by the Bank after five years and quarterly thereafter.
  2. A 10-year ‘value collar’, again for an initial notional amount of £4 million and then £6 million and cancellable by the Bank on the fifth anniversary only. Under the value collar:
  • If the floating rate fell below a floor of 3.75% LEA paid the difference between that rate and 5.49%.
  • If the floating rate rose above 5.75% (the ceiling), the Bank paid LEA the difference between that base rate and 5.75% (effectively capping LEA’s rate at 5.75%).
  • If the floating rate remained between 3.75% and 5.75%, neither party made payment.

At the time LEA entered into the Swaps, circa £7.1 million remained outstanding under the Loans. Subsequently, interest rates fell to unprecedented levels, with an adverse impact on demand for private aircraft charters. While the fall in rates facilitated an early repayment of the Loans by LEA (the fixed monthly payments paying off more capital), it also meant that LEA was significantly out of the money on the Swaps (paying the higher rate under both Swaps, being 5.35% under the dual rate Swap and 5.49% under the value collar Swap).

The claim

LEA brought proceedings against the Bank alleging that Mr Brindley, on behalf of the Bank:

  1. Negligently advised LEA to enter into the Swaps which were unsuitable (the advice claim).
  2. Negligently provided information about the Swaps because the information provided was inadequate to enable LEA to make an informed decision (in particular, in relation to the risks if interest rates fell and the potential magnitude of break costs) (the mezzanine claim).
  3. Misrepresented the benefits of entering into the Swaps, either fraudulently (in the tort of deceit) or negligently (in the tort of negligent misstatement or under the Misrepresentation Act 1967) (the deceit and misrepresentation claims). In particular, this claim focussed on an allegation that Bank failed to disclose that it had attributed a contingent liability of £1.6 million to the Swaps (the CLU).

DECISION

The court dismissed the claims in full. A summary of its detailed reasoning now follows.

The advice claim

The court dismissed LEA’s claim that advice was given or that any advisory duty arose on the facts.

The court recited the well-established proposition that banks do not generally owe any duty to advise on the merits of investments, but that if they choose to do so in the course of business, they owe a duty to advise with reasonable care and skill. The first issue to consider was therefore whether any of the statements alleged by LEA amounted to advice. The court had sympathy with the Bank’s complaint that it was not clear precisely what advice was alleged to have been given to LEA by Mr Brindley, noting that LEA had failed to identify any advisory language from Mr Brindley’s discussions of the merits of the Swaps. The court commented that, while background and context are important, they “cannot be a substitute for being able to identify words of advice”, without which “it makes the claim almost impossible for a defendant to contest”.

The court proceeded to consider the instances of advice in the particulars of claim which seemed to have the most potential to count as advice, but again found that there was no evidence to support the allegation. It also considered LEA’s allegation that Mr Brindley gave advice about the likely future course of interest rates, in particular by expressing his view that interest rates were unlikely to drop below 5%. The court held that this did not constitute advice that interest rates were bound to rise.

In case it had been wrong to find that no advice had been given, the court considered briefly whether (had the Bank given advice about the Swaps) there was a relationship of proximity between the parties giving rise to a duty of care on the part of the Bank (Standard Chartered v Ceylon Petroleum [2011] EWHC 1785 (Comm)). The court held it was clear from the absence of a written advisory agreement that no advisory relationship existed. In particular, the parties had agreed that the Bank would only be remunerated if the customer in fact purchased an IRHP; that incentive meant that the Bank’s interests to some extent diverged from LEA’s. In any event, there were no indicia of an advisory relationship and no objective evidence that LEA treated Mr Brindley as someone who was advising them on whether or not to enter into the Swaps.

LEA’s sophistication also pointed against an advisory relationship: Mrs Margetson-Rushmore was “keen to convey [that she] could drive a hard bargain”. She had requested a ‘live’ spreadsheet so as to stress test the proposed IRHPs in different interest rate scenarios. She also requested various forward curves and then discussed with the Bank the significance of those being inverted. Part of LEA’s case was that the Swaps contained features which made them entirely unsuitable for LEA’s business and the fact LEA had agreed to enter into such products must mean that they were not sophisticated enough to assess whether the products were appropriate. It was in this context that Mrs Margetson-Rushmore’s sophistication was most relevant, the court finding that each element of the IRHPs offered by Mr Brindley was in response to her desire to reduce the floor of the range in each of the trades as low as possible.

However, even though the court found that there was no cause of action based on the unsuitability of the Swaps, it went on to consider LEA’s complaints about various features of the Swaps, because these complaints appeared to be at the heart of LEA’s claim. In this regard, the court noted:

  • The specific terms of the Swaps that favoured the Bank, in particular its callable feature, were the quid pro quo for achieving a lower floor rate. The notional amount of the overhedge also allowed LEA to benefit from a lower floor. These features did not make the Swaps unsuitable.
  • While not critical of LEA’s witnesses, the court found their evidence to have been affected by hindsight and the impact of low interest rates on LEA – had interest rates risen, LEA would have benefited from the Bank being bound by the Swaps. As such, the alleged inflexibility of the Swaps did not make them unsuitable.

The court therefore concluded that the negligent advice claim failed. Accordingly, the court did not have to opine on whether or not contractual terms estopped LEA from claiming advice was given.

The mezzanine claim

Under this head, LEA claimed that the Bank was negligent in providing information about the Swaps because the information that had been provided was inadequate to enable it to make an informed decision. LEA’s argument was based on the proposition that a bank that undertakes to explain the nature and effect of a transaction owes a duty to take reasonable care to do so, even if what is said does not equate to advice to enter into the transaction.

The court endorsed the formulation of the so-called ‘mezzanine’ duty articulated by Asplin J (as she then was) in PAG v RBS:

The potential duty of care under consideration is wider than a duty not to misstate, is fact dependent and is a duty “falling on the advisory spectrum”. [Asplin J] rejected a formulation of the duty which suggests that once information is provided by a bank, a salesman is always under a duty to explain fully the products he wishes to sell even where no broader advisory relationship has arisen. I agree with Asplin J’s comment that to take such an approach is to blur the line between a salesman and an advisor.”

The court did not expressly accept that a mezzanine duty applied on the facts of the instant case. It approached the claim by considering the three categories of information which LEA claimed that Mr Brindley had failed to fully and properly explain. Again, without accepting the existence of the duty on the facts of the case, the court held that there was no potential breach of the so-called mezzanine duty in relation to any of the three categories of information, as explained below.

1. Failure to explain what would happen if interest rates fell

The allegation was that Mr Brindley failed to explain what would happen if interest rates fell and the Bank chose not to exercise the call option. The court held that this allegation lacked substance, since it was common sense that if the Swaps were not cancelled then they would continue until they expired after 10 years. Mr Brindley said nothing unfair or inaccurate in his discussions with LEA regarding the callable feature.

2. Failure to explain the full terms of the ISDA agreement

The court held that while Mr Brindley’s description of the governing ISDA was wrong, LEA received the agreement well in advance of the trades and Mrs Margetson-Rushmore was clearly familiar with ISDA from her banking experience. There was no evidence that anyone at LEA was influenced by what Mr Brindley said. In fact, Mr Margetson-Rushmore’s evidence was that he did not rely on the statement – contrary to LEA’s pleaded case.

3. Failure to disclose the CLU or otherwise explain potential breakage costs and other risks

LEA submitted that one of the poor sales practices identified by the then FSA in its 2012 investigation into mis-selling of IRHPs, was a failure to explain the potential magnitude of breakage costs, and one way in which the Bank could have done this would have been to disclose the CLU. However, as a matter of fact, the court held that the Bank had provided numerous qualitative written and oral warnings about the potential for break costs, whose magnitude was in part dependent on market conditions. The court commented that it was not “complicated or surprising” that a customer may have to compensate the bank if it terminated a contract early. Nor would it be surprising if the size of that payment was greater if the deal was profitable for the bank.

LEA also alleged that if it had known that the risk of the CLU (calculated by the Bank at £1.65 million) was greater than the risk of the increased balloon payment under the Loans, it would not have entered into the Swaps. The court noted that LEA had put this part of the case very high, alleging that Mr Brindley was dishonest and misleading by failing to identify the risks.

The court did not accept that an appreciation by LEA of either the value of the CLU or more generally the potential breakage costs would have made any difference. Mrs Margetson-Rushmore had made calculations showing the potential for a £1.7 million exposure under the Swaps. In any event, even if Mr Brindley had laboured the point about breakage costs, the court found that this would not have affected LEA’s decision, as at that point LEA was not contemplating breaking the contracts before maturity.

The deceit and misrepresentation claims

LEA’s “core allegation” under this head was that the Bank had fraudulently or negligently misrepresented to LEA the benefits of entering into the Swaps. The most important aspect of this was the allegation relating to the CLU. The evidence showed that Mr Brindley had told LEA that the Loans’ balloon payment might be £1.6 million higher than expected, based on a 95% worst case scenario prediction. However, the Bank did not disclose that it had allocated a contingent liability of £1.65 million (the CLU) to the Swaps. LEA argued that, while the Swaps were presented as ways to avoid the potential £1.6 million balloon liability, the Swaps themselves created a potential liability of equal value. LEA submitted that Mr Brindley acted dishonestly and deceitfully (or alternatively negligently) in failing to tell LEA about the CLU.

No express misrepresentation was alleged and therefore the court had to consider whether or not there was an implied representation. The court opined that the only implied representation that could be in play was that the balloon payment was “more than [LEA] might ever have to pay under the hedging products if interest rates went down very substantially”.

Applying the established principles summarised in Cassa di Risparmio della Repubblica di San Marino SpA v Barclays Bank Ltd [2011] EWHC 484 (Comm), the court found no such implied representation had been made. No reasonable person would infer that a statement about the potential balloon liability was saying anything about the size of break costs that LEA might face if it decided to terminate the Swaps early when interest rates had fallen. The balloon payment was a liability that LEA was tied into. By contrast, break costs were not something that LEA was bound to make under the Swaps and LEA was not, at that time, contemplating breaking before maturity. There was also a lack of evidence that any of LEA’s witnesses understood Mr Brindley to be saying that the risk LEA faced under the Loans was greater than the risk it faced under the Swaps. The implied misrepresentation claim could therefore not succeed.

Accordingly, the court dismissed all claims.

COMMENT

The judgment provides a helpful overview in relation to the law applicable to IRHP mis-selling claims. Key points of general application are set out in the introduction.

John Corrie
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Ceri Morgan
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Joseph Duggin
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Privy Council: No duty of care owed by a lender to disclose lending policies

A recent judgment handed down by the Privy Council is likely to have wide application to mis-selling claims generally: Deslauriers and another (Appellants) v Guardian Asset Management Limited (Respondent) (Trinidad and Tobago) [2017] UKPC 34. In this decision, the Privy Council has confirmed that in a commercial relationship between experienced lenders and borrowers, the lender will not ordinarily owe a duty of care to disclose information about its internal lending policies or its approach to evaluating loan applications. Nor will it be under a duty to alert a customer to any external influences on its ability to lend further sums, for example regulatory constraints. This will be the case even where a disappointed borrower has made it clear from the outset that it hopes to extend the loan in due course.

The decision will be welcomed by banks and other lenders as limiting the scope of the duty of to provide information. In the instant decision, the context was a loan agreement, but the principle could equally apply to agreements relating to other financial products, such as interest rate hedging products. It may be a helpful antidote to claims brought by customers seeking to expand the duty to provide information to include novel categories of information.

Background

The dispute arose out of a commercial loan transaction for TT$18.6 million (Trinidad and Tobago dollars) advanced by Guardian Asset Management (“GAM”) to Mr and Mrs Deslauriers (the “Borrrowers”), who were property developers engaged in a project known as “Hevron Heights”. The Borrowers gave promissory notes for repayment, and the loan was secured by a demand mortgage over parcels of land belonging to them.

The Borrowers defaulted on their repayment obligations and GAM brought proceedings in Trinidad and Tobago to recover the amount owed. The Borrowers did not dispute the loan or its non-payment, but counterclaimed for losses they said they had suffered as a result of GAM’s failure to make further loans to finance the later stages of Hevron Heights. When the Borrowers sought further lending to complete the Hevron Heights project, GAM refused their application and indicated that there were lending limits which an additional loan would exceed. In consequence, the Borrowers alleged that they were unable to complete Hevron Heights and suffered loss of profits of TT$24 million. The Borrowers contended (amongst other things) that: (a) GAM’s failure to disclose any lending limits to which it was subject amounted to a misrepresentation; and (b) GAM was under a duty of care to inform the Borrowers of any lending limit, and failure to do so amounted to a negligent misstatement.

The Borrowers were unsuccessful at first instance before the High Court of Trinidad and Tobago, and an enforcement order in favour of GAM was made against a property owned by one of the Borrowers. Having unsuccessfully appealed to the Court of Appeal of Trinidad and Tobago, the Borrowers then appealed to the Privy Council.

Decision

The Board of the Judicial Committee of the Privy Council dismissed the appeals in relation to both liability and enforcement.

(1) Misrepresentation

On the facts, the Board had little hesitation dismissing the Borrowers’ claim under the Misrepresentation Act of Trinidad and Tobago (modelled closely on the English Misrepresentation Act 1967). The trial judge, Court of Appeal and the Board all found there was no discussion between the Borrowers and GAM about whether GAM would fund the rest of the Hevron Heights project before the loan was entered into. That finding was fatal to the claim in misrepresentation as any lending limits which affected GAM were simply irrelevant. Silence could not amount to a materially partial or misleading statement and there was no occasion to disclose the lending limits.

There was, further, no evidence before the trial judge that the Borrowers would in fact have been able to complete the Hevron Heights project had the alleged misrepresentation not been made. This was an additional reason why the misrepresentation claim could not succeed.

(2) Negligent misstatement

The Board went on to consider the claim in negligent misstatement, based on an alleged duty of care to inform the Borrowers of any lending limit.

It first set out the parameters of the evidence upon which the Borrowers would be entitled to rely (if a proper basis for a negligent misstatement claim could be made out). The Board noted that, in contrast to the misrepresentation claim (for which only correspondence prior to completion was considered), the Borrowers could rely on correspondence sent and received after the conclusion of the contract. This was because the duty of care (if it existed) would be capable of continuing. This was important to the Borrowers’ claim, because after the loan contract was made, there was correspondence in which it became apparent that the Borrowers were looking for further finance from somewhere. The complaint was that GAM failed to inform the Borrowers as to its lending policies in the course of such discussions.

To establish whether or not there was a duty of care, the Board referred to the principles set down in Hedley Byrne & Co Ltd v Heller & Partners[1964] A.C. 465. The Board held that the duty of care postulated depended upon the relationship between the parties giving rise to an assumption of responsibility by GAM for giving professional advice to the Borrowers. However, the relationship between the parties was between a commercial lender and its highly experienced commercial borrower. It was an arm’s length relationship, in which each sought to further its own commercial interests. It was not a relationship of adviser and client. Accordingly, GAM had no duty to disclose to the Borrowers the lending limits to which it was subject.

In reaching this conclusion, the Board made some important observations about the nature of the relationship between a commercial lender and experienced commercial borrower which are likely to be of wider application:

  • It would be very unusual for such a non-advised relationship to give rise to a duty on the part of the lender to advise the borrower about its internal lending policies or approaches to loan applications, still less about any external influences, regulatory or otherwise, which applied to it.
  • It would be extremely difficult to envisage such a duty arising, even if the borrower indicated from the beginning that it hoped to borrow more in the future.
  • Where the court had found that no such discussions had in fact taken place between the parties, it was quite impossible to construct the duty of care contended for.

(3) Enforcement

The Board also dismissed the appeal against the order for the sale of the property owned by one of the Borrowers, rejecting an argument that the Borrower in question had effectively divested herself of the beneficial interest in the property by way of a Deed of Settlement.

Comment

Whilst this Privy Council decision was on appeal from Trinidad and Tobago, it is likely to have application in English law cases considering whether or not a duty of care can be established in similar circumstances, given the similarities of the two systems. Although Privy Council decisions are technically not binding on English courts, they carry great weight and persuasive value (see our litigation post clarifying the status of Privy Council decisions). One legal point to note is that the Board applied Hedley Byrne, and concentrated on the “assumption of responsibility” principle to establish whether a duty of care existed. It did not refer to the three-fold test (foreseeability, proximity and fairness) or the incremental approach. However, whichever test is applied should produce the same result, and given the Board’s decision regarding the lack of a special relationship between the parties, consideration of the other limbs of the 3-fold test would have been unnecessary in any event.

This decision will therefore be of interest to lenders, borrowers and litigators, most particularly in view of the clarification it gives on the limited scope of a lender’s duty of care to disclose its internal lending policies.

John Corrie
John Corrie
Partner
+44 20 7466 2763
Catherine Emanuel
Catherine Emanuel
Senior Associate
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Ceri Morgan
Ceri Morgan
Professional Support Lawyer
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WW Property Investments Limited v National Westminster Bank Plc: Court of Appeal refuses permission for addition of claims regarding LIBOR manipulation

The case concerned an application by the claimant for permission to appeal a decision of the High Court to strike out the entirety of the claim concerning the claimant’s interest rate hedging products (IRHPs”) and its refusal to grant permission to add a new claim. Although not a substantive appeal as such, the case nevertheless illustrates some useful headline points in mis-selling claims.

The Court of Appeal held that the claimant had no real prospect of success in its claims: (1) based on alleged implied contractual terms and misrepresentations regarding the manipulation of LIBOR benchmarks (due to deficiencies in how those claims had been pleaded in this particular case); and (2) that the relevant IRHPs constituted wagering contracts and were invalid at common law. It did, however, grant leave to appeal a third limb of the claim (concerning conduct of the FCA Review).

Importantly, the Court of Appeal found that the claimant had through its conduct affirmed its interest rate swap, which would preclude any claim for rescission. The Court appeared to set a low standard for affirmation, finding that the claimant had affirmed the swap contract by: (1) making payments under the swap until its termination; (2) participating in the industry wide review of sales of IRHPs; and (3) claiming repayment of net swap payments and consequential losses in the proceedings.

Although the Court of Appeal’s decision is technically not binding precedent (as the judgment relates to permission to appeal), this point may have wider significance for LIBOR manipulation claims if other courts decide to follow the Court’s reasoning.

Background

The claimant entered into four IRHPs with NatWest, hedging loans made by that bank: three enhanced interest rate collars in 2004, 2005 and 2007, and an interest rate swap in 2010. In June 2012, the FCA announced that it had agreed with a number of banks (including NatWest) that a redress scheme would be set up to review and compensate certain customers to whom IRHPs had been mis-sold (the “FCA Review“). In this case, the FCA Review provided redress in respect of the three enhanced collars, but found that the swap had not been mis-sold.

The claimant advanced three main claims:

  1. LIBOR Claims: It was an implied term of the swap that NatWest had not previously, and would not in future, seek to manipulate any LIBOR index. Alternatively, there was an implied misrepresentation that NatWest would not manipulate any LIBOR index. This claim was not included in the initial pleading and the claimant had sought permission at first instance for its claim to be amended to include this claim.
  2. Wager Claim: The IRHPs constituted wagering contracts, as contracts for differences are in essence bets on the movement of the underlying rate/asset. It was claimed that such contracts are invalid under common law if the parties have unequal knowledge of the prospects of succeeding in the wager. The claimant argued that the parties had unequal knowledge as only NatWest knew that the IRHPs each had a mark-to-market value in favour of NatWest on the date of sale.
  3. Review Claim: NatWest had breached a duty of care owed to the claimant to carry out the Review diligently and to take proper account of all the evidence. The Review should have offered redress for the swap and offered additional consequential losses in relation to the three enhanced collars.

At first instance, HH Judge Roger Kaye QC in the Leeds District Registry struck out the entirety of the claim as having no real prospect of success and refused permission for the addition of the LIBOR Claims. The claimant sought permission to appeal.

Decision

The Court of Appeal refused leave to appeal the strike out of the Wager Claim and refusal to allow the amendment to include the LIBOR Claims. However, it granted permission to appeal the judge’s decision to strike out the Review Claim.

LIBOR Claim

The Court of Appeal found that the LIBOR Claims had no real prospect of success and accordingly refused permission to appeal. Whilst the Court found (following Deutsche Bank AG v Unitech Ltd and Graiseley Properties Ltd v Barclays Bank plc [2013] EWCA Civ 1372) that the existence of both the alleged implied term and implied representation was arguable, it was highly critical of how the claims had been pleaded in this case and found that several essential elements of the causes of action had not been pleaded. For example, in respect of the implied term claim, the claimant failed to allege that NatWest manipulated the relevant LIBOR rates at any relevant time. In respect of the implied misrepresentation claim, the claimant failed to claim that it had relied on the alleged misrepresentation.

Notably, both the High Court and the Court of Appeal found it “plain” that the claimant would not have been able to claim rescission (for breach of the alleged implied misrepresentation) as it had affirmed the swap contract by: (1) making payments under the swap until its termination; (2) participating in the Review and pursuing the Review Claim in the proceedings; and (3) claiming for repayment of all net swap payments and consequential losses in the proceedings.

Wager Claim

The Court of Appeal firmly rejected the Wager Claim, finding:

  1. The alleged common law rule that wagering contracts are invalid if the parties have unequal knowledge (if it had ever existed), would have been abolished by the Gambling Act 2005. In any event, the regime established by the Financial Services Act 1986 and the Financial Services and Markets Act 2000 would have excluded the rule from applying to the IRHPs or any financial instrument which they regulated.
  2. Even had the alleged rule applied, the IRHPs would not have constituted wagering contracts as they had a genuine commercial purpose. The IRHPs protected the claimant from changes in interest rates.
  3. Even had the alleged rule applied, the parties would not have had unequal knowledge, as neither side knew the future course of interest rates during the term of the IRHPs. The fact that the mark-to-market value was in favour of NatWest on the date of sale merely represented the expectations of the market, but ultimately neither party knew what would happen.

The Court also rejected an argument by the claimant, linked to point 3 above, that it is unlawful for a bank to enter into a swap contract with a customer that has a mark-to-market value in the bank’s favour on the date of sale, unless it discloses that fact to the customer. The Court firmly found that there was no realistic basis for claiming an implied term or representation that the mark-to-market is zero at the date of sale.

Review Claim

The Court of Appeal noted that it had recently granted permission to appeal a similar decision of the High Court in CGL Group Ltd v Royal Bank of Scotland [2016] EWHC 281 (QB). Accordingly, it accepted that the Review Claim was arguable and granted permission to appeal. The Court recommended that consideration should be given to listing the two appeals together (CGL is due to be heard in June 2017).

Comment

As the Court noted, it is unusual for the Court of Appeal to issue such a lengthy and detailed judgment in respect of an application for permission to appeal. This was primarily due to the judgment going into considerable depth to explain why the Wager Claim was fundamentally flawed. The Court suggested that it wanted to ensure similar claims were not advanced in future.

Perhaps the most significant part of the judgment is the Courts’ dismissal of the LIBOR Claim and its comments around affirmation. Much of the Court’s reasoning is limited to the particular facts of the case and, in particular, the claimant’s failure to plead its case properly. However, it is notable that the Court found that the claimant affirmed the swap contract (and therefore could not rescind) due to participating in the Review and also initiating proceedings to recover the net swap payments. The findings on affirmation were dealt with briefly in the judgment and the Court’s reasoning was not set out in detail. In addition, the judgment is technically not binding precedent, as it relates to the narrow question of permission to appeal. Nevertheless, if this approach is followed in other LIBOR manipulation cases (and in particular, in the upcoming judgment in Property Alliance Group v Royal Bank of Scotland plc, expected by January 2017), then claimants may struggle to establish rescission for implied misrepresentations regarding LIBOR manipulation. This could deal a severe blow to such claims, as it is likely that the amount of damages in any LIBOR manipulation claim (as distinct from rescission) would be minimal, given that the effect of alleged manipulation on any one product is likely to be negligible.

John Corrie
John Corrie
Partner
+44 20 7466 2763
Dan Eziefula
Dan Eziefula
Associate
+44 20 7466 2182

Court of Appeal clarifies scope of potential liability under the Misrepresentation Act 1967

The recent decision of the Court of Appeal in Taberna Europe CDO II Plc v Selskabet (formerly Roskilde Bank A/S) (In bankruptcy) [2016] EWCA Civ 1262 provides welcome clarity for issuers on the scope of their potential liability under the Misrepresentation Act 1967 (the 1967 Act”) and the use of disclaimers to restrict that scope.

The Court of Appeal held that the publication of an investor presentation in a way that actively invites investors to make use of its contents for a purpose other than the presentation’s original purpose could create sufficient proximity to give rise to a duty of care in relation to the content of the presentation. However, potential liability for a misrepresentation in a document can be avoided by a valid disclaimer of liability contained in the same document notwithstanding that the disclaimer itself had no contractual effect (i.e. was merely a non-contractual notice). Further, the Court of Appeal (contrary to the first instance decision) determined that section 2(1) of the 1967 Act applies only to a contract which the representee has been induced to enter into directly by the representor, and does not extend to obligations of a contractual nature which the representee acquires from a third party and in respect of which it would have no right of rescission.

Factual Background

In 2006 Roskilde Bank A/S (Roskilde”), a Danish regional bank, issued subordinated loan notes with a face value of €80m (the “Notes”). Deutsche Bank acquired €27m worth of the Notes through the offering which, in February 2008, it sold to Taberna Europe CDO II Plc (“Taberna”), an Irish special purpose investment vehicle, for approximately €26.5m. Later that year, the majority of Roskilde’s assets and liabilities (but not the Notes) were transferred to a new bank and in February 2009, steps were taken to put Roskilde into bankruptcy. Recognising that it was unlikely to recover anything in the bankruptcy due to the subordinated nature of its claim, Taberna instead pursued a claim for damages for misrepresentation under section 2(1) of the 1967 Act (liability for which had arguably been transferred to the new bank).

Taberna alleged that it had been induced to buy the Notes in part by a misrepresentation by Roskilde as to the amount of non-performing loans (NPLs”) on its books. In particular, Roskilde had produced an “Investor Presentation” which stated that its NPLs totalled DKK57m, whereas the actual amount of its NPLs was said to be in the region of DKK3.5bn. The Investor Presentation was published and available for download on Roskilde’s website for the purpose of bringing it to the attention of anyone who might be considering buying its notes on the secondary market. However, the presentation contained a series of disclaimers seeking to establish that no representation was made as to any information including projections and estimates, and no liability was accepted for any errors or misstatements.

At first instance, Mr Justice Eder had found in favour of Taberna on the basis that the Investor Presentation misrepresented the position with regarding to Roskilde’s NPLs and that Taberna was entitled to rely on that information notwithstanding the disclaimer language it contained (since it did not have any contractual effect). Moreover, he found that the measure of damages was the more generous measure under s.2(1) of the 1967 Act notwithstanding that the actionable representation was made by a third party (Roskilde) to the contract which it induced (which was the transfer of the notes acquired by Taberna from Deutsche Bank). Roskilde appealed.

Decision

The Court of Appeal (Moore-Bick LJ delivering the main judgment) allowed Roskilde’s appeal and held that Taberna was not entitled to recover damages under the 1967 Act or otherwise.

(i) Misrepresentation to Taberna

There is of course much case law which confirms that a publication made for a particular purpose does not give risk to duties of care owed to all who happen upon it and who use it for another purpose. So, a prospectus produced to invite investors to purchase shares in a company cannot be used to found a claim in misrepresentation against the issuer of that prospectus by a third party who, after reading the prospectus, buys shares in the market from one of the original allotees (Peek v Gurney (1873) LR 6 HL 377).

The Court of Appeal noted the danger of allowing inroads into this principle, particularly in the digital age. However, it held that where – as here – a company actively invites potential investors to make use of information originally produced for a different purpose, it can “hardly complain” if they do so.

On the facts, Roskilde had directed potential investors to the Investor Presentation on the website in connection with the purchase of its subordinated debt generally. As a result, the Court of Appeal held that the judge was right to find that Taberna, as one such investor, was entitled to rely on representations which the Investor Presentation contained in purchasing the Notes.

(ii) The disclaimer

In circumstances where a party has been induced to enter into a contract by a misrepresentation, liability can only be excluded by agreement. In this case, it was common ground that there was no contract between Roskilde and Taberna which incorporated the disclaimer. On that basis, Eder J held at first instance that the disclaimer language was ineffective, considering it to be no more than an attempt to exclude liability for misrepresentation by non-contractual means.

The Court of Appeal disagreed drawing the important distinction between an attempt to exclude liability which would otherwise arise (“liability-negating clauses”) and so-called “duty-negating clauses” which restrict the scope of apparent representations and seek to prevent liability arising in the first place. In this case, the disclaimer was included in the very document which was said to contain the misrepresentation. Taberna was an experienced professional investor and should have reviewed the Investor Presentation in full, including the disclaimer. The Court of Appeal held that it is clear from section 2 of the Unfair Contract Terms Act that, subject to the requirement of reasonableness, a person can in general by suitable notice effectively make it clear that he is not willing to accept liability for statements contained in a document of which it forms a part. In this case, the Court of Appeal found that, read fairly as a whole, the disclaimer sent a clear message: absent fraud, Roskilde was not willing to accept any liability for the accuracy of the Investor Presentation.

The Court of Appeal also considered the application of the contra proferentum rule to the disclaimer. Moore-Bick LJ noted that there has been an increasing willingness in recent years to recognise that parties to commercial contracts are entitled to determine for themselves the terms on which they will do business. Although the contra proferentumrule may be useful in cases of genuine ambiguity, it should not be taken as the starting point. In this case, the disclaimer was couched in language which made it clear that Roskilde accepted no responsibility for the information contained in the Investor Presentation. Absent the course of dealings between the parties overriding the disclaimer, Taberna could be in no better position than the investors to whom the Investor Presentation was originally addressed.

(iii) Scope of section 2(1) of the 1967 Act

Although unnecessary in light of his decision on the disclaimer, Moore-Bick LJ considered the important issue arising from Eder J’s decision on the scope of claims that may be pursued under section 2(1) of the 1967 Act, and whether it could include claims where a claimant was induced to enter into a contract with a party other than the maker of the relevant representation.

In a surprising finding Eder J held that section 2(1) of the 1967 Act could apply to such circumstances. His reasoning was as follows:

“I readily accept that the facts of the present case are somewhat unusual. In particular, this is not a simple case of only two parties (A and B) where a representation is made by A to B and, in reliance on such representation, B enters a bilateral contract with A. Here, the position is more complicated. Thus, it is plain that at least certain pre-sale negotiations took place between Deutsche Bank and Taberna; that Taberna entered into a contract with Deutsche Bank; and that it was pursuant to that contract (to which Roskilde was not a party) that Taberna acquired the subordinated notes from Deutsche Bank. However, there is equally no doubt…that the effect of such acquisition was to bring Taberna and Roskilde into a contractual relationship – although the precise mechanism whereby such contract came into existence is not entirely clear to me. It is perhaps also noteworthy that, contrary to a “normal” contract, the consideration for the subordinated notes i.e. the purchase price was paid by Taberna to Deutsche Bank not Roskilde. However, I am unpersuaded that these somewhat unusual features take the present case outside the scope of s.2(1).”

Moore-Bick LJ held in clear terms that this was wrong. In particular, he considered that section 2(1) of the 1967 Act is concerned only with the contract which the representee has been induced to enter directly with the representor (and in respect of which it would have a right of rescission) and does not extend to an obligation of a contractual nature which the representee acquires from a third party. In other words, the 1967 Act is concerned with the loss that the representee has incurred as a result of being induced to enter into a contract with the representor. In this case, Taberna’s loss, the price it paid for the Notes, could only have been the subject of a claim under section 2(1) of the 1967 Act if it had been induced to purchase the Notes by the misrepresentation on the part of Deutsche Bank.

Comment

The Court of Appeal’s decision is particularly welcome because it has clarified the position on the application of section 2(1) of the 1967 Act to secondary market purchases of contractual rights (such as the notes). The first instance decision of Eder J opened the door to arguments that issuers of securities on the secondary market could be liable to an indeterminate class of investors under section 2(1) of the 1967. The Court of Appeal’s decision, whilst only obiter on this point, should happily serve to shut this door.

This decision also provides further helpful guidance with respect of the effectiveness of appropriately worded disclaimers which seek to negate the existence of duties in non-contractual documents. However, issuers would still be wise to exercise caution when publishing investor materials on websites or other public forums and recognise that, by doing so, they are exposing themselves to the risk of investors relying on that material for other purposes.

Harry Edwards
Harry Edwards
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Ben Steed
Ben Steed
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James Allsop
James Allsop
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