Banking Litigation Update

We have published our latest Banking Litigation Update, summarising some of the more important cases and developments affecting UK financial institutions over the past six months, including:

MIS-SELLING CLAIMS

• Property Alliance Group v RBS transferred to the Financial List: top tips for parties wishing to successfully transfer proceedings
• Suresh Sivagnanam v Barclays Bank: High Court limits shareholders seeking a second bite of the cherry in IRHP mis-selling cases
• Deutsche bank AG v Unitech: borrowers seeking rescission for alleged LIBOR manipulation must be prepared to pay the full loan amount outstanding before trial
• CGL Group v RBS: No Suremime-type duty of care owed directly to customer in connection with past business review
• Qadir v Barclays: High Court gives helpful guidance on limitation periods in IRHP mis-selling litigation

CONTRACTUAL CONSTRUCTION

• Windermere VII: Financial List provides guidance of wider market significance on the rights attaching to Class X notes in a CMBS structure
• Alexander v West Bromwich Mortgage Company Ltd: when can lenders rely on contradictory mortgage conditions?
• UCTA reasonableness test may apply even where contract is only partly on standard terms
• Court of Appeal confirms exclusion clauses should be construed narrowly if necessary to resolve ambiguity

DISCLOSURE AND PRIVILEGE

• Court of Appeal clarifies when court will allow inspection of documents mentioned in witness statement or statement of case
• The price of changing experts: disclosure of privileged report

JURISDICTION

• Commercial court decision suggests "torpedo" actions may not be effective where parties have agreed unilateral jurisdiction clause
• Court of Appeal decision confirms stay may be granted despite forum non conveniens waiver clause but precise basis uncertain

OTHER SIGNIFICANT DECISIONS

• Court of Appeal gives guidance for bankers' references: what to include in a request for reference and the circumstances in which liability may be avoided
• Commercial court finds commitment letter unsigned by one party to be legally binding
• Supreme Court holds that a settlement may be set aside for fraud even if fraud was suspected
• Supreme Court reformulates test for when a claim will fail due to illegality
• Predictive coding ordered despite party's objections
• Courts taking tough line on disproportionate costs
• Herbert Smith Freehills LLP contributes chapters to the recently published First Edition of Getting the Deal Through – Financial Services Litigation 2016
• Herbert Smith Freehills LLP contributes chapters to the recently published Second Edition of The Securities Litigation Review
• Guide to Dispute Resolution in Asia Pacific – A multi-jurisdictional review
• Arbitrating disputes under the ISDA Master Agreement

Click here to read the Update.