Swaps Mis-selling case, Green and Rowley v RBS, is today being heard in the Court of Appeal. The appeal from the Queen’s Bench Division (Commercial) is being heard before Court of Appeal (Civil) Judges: Lord Justice RICHARDS, Lady Justice HALLETT and Lord Justice TOMLINSON.
A3/2013/0138 Green & Anr -v- The Royal Bank of Scotland
The Appeal is that of the Claimants and is an appeal from the order of His Honour Judge Waksman QC, dated 21st December 2012, filed 18th January 2013 which dismissed the claim in favour of RBS.
We provided legal comment on Green & Rowley v RBS back in December 2012. The decision, which was highly fact-sensitive, was decided in favour of the bank, who convinced the court that it had properly explained the risks of the product.
Intervention by the Financial Conduct Authority (FCA)
In January 2013, the Financial Conduct Authority (FCA) sought and gained permission to participate in the appeal. The FCA explained that in so doing it wanted to be considered impartial. The FCA wanted the opportunity to explain its regulatory framework of rules and its interpretation of them to the Court of Appeal.
Eleven UK banks have agreed with the FCA to review their past sales of interest rate swaps and provide redress (not necessarily monetary compensation) to customers who were misled or not given adequate information in the sales process.
We consider the FCA’s comments will have been helpful to the Appellants but are most unlikely to be determinative in this appeal.
Time Bar / Limitation of Swaps Mis-selling Claims
It should be noted though the fact that Green and Rowley for some reason decided to accept the section 150 FSMA claim was time barred without making any legal challenge on this issue. The section 150 FSMA claim ought to have been the strongest element of the case and the acceptance that it was time-barred may prove unfortunate as this aspect cannot be easily challenged in the Court of Appeal given it was not determined by HHJ Waksman QC in the lower Court.
This illustrates the importance of a careful analysis of a case in order to calculate the correct limitation dates applying to each element of the claim and demonstrates the importance of instructing a specialist law firm dealing with swaps mis-selling claims from the outset.
Expert swaps litigation lawyers ought to assess the case on its merits (and demerits) and then manage it carefully. This entails adopting an appropriate litigation or FCA Review strategy for the particular case. It is important to obtain bank held documents and telephone recordings and to carefully consider the issue of limitation which is not as simple as six years from the date of the trade telephone call as many believe.