In a hearing that, after months of anticipation and an intervention by the FCA, proved in the end to something of a damp squib, the appeal in Green & Rowley was quickly determined by the Court of Appeal earlier today and dismissed. Importantly no harm seems to have been done to other businesses with swaps mis-selling claims.
A3/2013/0138 Green & Anr -v- The Royal Bank of Scotland
The appeal was from the decision of HHJ Waksman QC sitting in the Mercantile Court in Manchester (Queen’s Bench Division (Commercial)). The appeal was heard by the following Lord Justices of the Court of Appeal: Lord Justice RICHARDS, Lady Justice HALLETT and Lord Justice TOMLINSON.
Those following financial services litigation cases against banks in the area of interest rate hedging mis-selling will be well aware of this case and the intervention by the Financial Conduct Authority (FCA) into the appeal. The FCA we understand took the opportunity in a skeleton argument drafted by Nicholas Peacock QC to explain its regulatory framework of rules and its interpretation of them to the Court of Appeal. As we stated in an earlier post, we consider the FCA’s comments will have been helpful to the Appellants but were most unlikely to be determinative in this appeal.
Understanding why the Appeal was Dismissed
We consider the appeal was dismissed because of two principal factors.
Firstly and historically (i.e. prior to the lower court determination), the claimants decided to abandon the section 150 FSMA claim as they (probably) believed it was time barred by operation of the Limitation Act. This was a mistaken concession because in fact certain of the conduct of business rules arguably create duties that run right up to the trade execution call. This highlights the need to instruct expert swaps mis-selling lawyers to prepare, present and argue your case.
Secondly the Court of Appeal were effectively being asked to decide that there was a concurrent advisory duty under common law to comply with the regulatory rules in the face of a decision of fact by HHJ Waksman QC that there was no advice in this particular case.
URGENT: Time Bar in Swaps Mis-selling Claims
This case illustrates the importance of calculating the correct limitation dates that apply to each element of the claim. Expert swaps lawyers would assess the case at the outset when it matters the most and then advise on an appropriate litigation or FCA Review strategy. The issue of limitation is not as simple as six years from the date of the trade telephone call as many believe.
Clearly it is vital to instruct a specialist law firm dealing with swaps mis-selling claims from the outset. Those businesses with mis-sold swaps should see a solicitor promptly as given many swaps were sold in the period of 2005 to 2008 the issue of time bar is effecting and limiting the legal rights of hundreds of cases every week at present. It costs little to protect a legal claim compared to a small fortune if the opportunity to pursue legal rights are lost.
Those businesses who believe they were mis-sold a swap but that do not protect their legal claims will be left utterly reliant on the bank’s own review of whether they mis-sold the IRHP.