Business Solicitors Suffolk – Bank legal success

Dermott Thomas

‘News has come through that the keenly awaited decision from the Court of Appeal on one of the leading mis-selling cases has been upheld in favour of the Bank, the Royal Bank of Scotland.

Although the facts of that case were rather particular as the Bank did seem to spend some time trying to explain the transaction and the Claimants involved had a certain level of sophistication the Judge in the original decision confirmed that in his judgment a Bank’s terms and conditions “can be invoked to negate or delineate the ambit of any duty of care”.

In virtually all the mis-selling cases currently advanced on the back of interest rate hedging the Banks will have attempted to disclaim the fact they were giving “advice”.

In many cases this will have been very confusing as the businesses involved will have been introduced to an “advisor” who proceeded to provide them with presentations and advice on the most suitable product to hedge the risk of interest hikes prior to concluding the sale of the same.

It would be surprising if the Courts gave full judicial approval to professional advisors disclaiming the fact they are advising.  Our own insurers would be delighted if we were able to tell clients that they cannot rely on our advice because it is not really advice but just looks suspiciously like it.

The full Court of Appeal judgment will not be published until later this year and it will be interesting to see whether the Court of Appeal has made any wide ranging declarations on the issue of these disclaimers or merely confirmed that the Green and Rowley case is in fact a case that is out of step with the vast majority of current Claimants in that the particular claimants had a certain level of sophistication and the Bank in that case did make some effort to explain the risks.

The FCA intervened on another point where it felt the Judge in the original decision had erred in relation to the extent of information a financial institution has to give to discharge the regulatory burdens on it whether or not it is “advising”.

It seems we will have to await the detail of the reasoned judgment to see what impact it has on the thousands of cases pending against the Banks for mis-sale.’

Dermott Thomas is a business solicitor specialising in litigation and dispute resolution at Barker Gotelee, Suffolk Solicitors.

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