Financial product mis-selling claims against banks: the increasing willingness of the English courts to strike out allegations of fraud in “appropriate” cases

Herbert Smith Freehills LLP have published an article in Butterworths Journal of International Banking and Financial Law on the increasing willingness of the English courts to deal with opportunistic claims against banks (and other third parties) involving allegations of fraud without the need for a full trial, in “appropriate” cases.

Traditionally, in a financial product mis-selling context, claims against financial institutions involving allegations of fraud, LIBOR manipulation and unlawful means conspiracy have not been amenable to strike out or summary determination. However, the recent decisions in Boyse (International) Limited v Natwest Markets plc & The Royal Bank of Scotland Plc [2020] EWHC 1264 (Ch) and Elite Properties and Ors v BDO LLP [2020] EWHC 1937 (Comm) represent useful additions to the body of English court judgments arising out of financial product mis-selling allegations, which are likely to be of broader interest to financial institutions. In both cases, allegations of fraud were made against the defendant entity, and in both cases, the court struck out the claim/granted reverse summary judgment, finding that these were cases in which it was “appropriate” to deal with the claims without the need for a full trial. The decisions, taken together, could be viewed as an encouragement by the courts for financial institutions to seek to dispose of mis-selling claims at an early stage of the litigation proceedings.

In our article, we examine the lessons learned from Boyse and Elite as to when it will be “appropriate” to strike out/summarily determine mis-selling fraud claims, and the impact of these decisions upon the litigation tactics of defendant financial institutions facing such claims.

This article can be found here: Financial product mis-selling claims against banks: the increasing willingness of the English courts to strike out allegations of fraud in “appropriate” cases. This article first appeared in the January 2021 edition of JIBFL.