The judgment in Green & Rowley v RBS is certainly not helpful to claimants in swap mis-selling cases, but on careful analysis, it is less bad than it might seem given the following:
- HHJ David Waksman QC himself observes that the case is “highly fact-sensitive” (at para 21). The judge found that the claimants were “both intelligent and experienced businessmen” and that “this particular swap was very straightforward” (para 37). In many of the cases we have seen and are progressing against the banks, the claimants were significantly less sophisticated and the products significantly more complicated.
- In addition, the section 150 FSMA claim (which ought to have been the strongest element of the case) was time-barred in Green & Rowley. 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.
- Waksman J found that no recommendation had in fact been made by the bank in relation to the swap. He does state (at para 48) that if such a recommendation had been made, this would have constituted ‘advice’, therefore potentially opening up the bank to a Hedley Byrne type liability.
- The judge declined to determine whether the exclusion clauses in the swap documents would be effective (at para 117, since he found no liability to exclude). This therefore leaves open the possibility that on a different case, in which the bank did make a clear recommendation, the negligent mis-statement argument could be run.
Another point which Green & Rowley illustrates is the evidential difficulties arising in relation to matters which often happened six or more years ago. Where (as will often be the case) the memories of the witnesses differ, the court is likely to conclude, on the balance of probabilities, that the contemporaneous documents were an accurate record of what was said. In many cases these will be the bank’s documents. Therefore we consider it imperative for claimants to obtain disclosure of these documents at an early stage, either under the Data Protection Act or CPR Rule 31.16.
Clearly there is a need for using a specialist swaps mis-selling legal team from the outset especially firstly to assess the case on its merits (and demerits) and then secondly to manage it carefully in particular on the issue of obtaining all of the bank held documents and recordings and also on the issue of limitation (which is not as simple as many commentators think and is not necessarily as simple as six years from the date of the trade telephone call).
The full judgment is available here.
M Ali Akram (Principal)