UK Court of Appeal to consider potential LIBOR claims – Graiseley test case delayed

The Court of Appeal has granted permission to appeal against the decision of the High Court, in Graiseley Properties Ltd & others v Barclays Bank plc & others [2012] EWHC 3093, to allow the case to proceed to trial as a test case for claimants seeking to bring private actions 'piggybacking' off regulatory findings concerning the manipulation of LIBOR (London Interbank Offered Rate).

The case pending in the High Court concerns alleged mis-selling of interest rate hedging products, payments under which were set by reference to Sterling LIBOR.   Following the publication of regulatory findings against the bank in respect of LIBOR last summer, the claimants sought permission to amend their case to add further claims based on alleged breach of contract and misrepresentation regarding the integrity of the relevant LIBOR rate.

In a judgment dated 29 October 2012, Mr Justice Flaux concluded that the proposed LIBOR allegations had sufficient prospects of success to be allowed to proceed to trial and be tested.  The proceedings were listed for trial in October 2013 and were widely anticipated as a test case.

The Court of Appeal has however now granted the bank permission to appeal Flaux J's decision, with the appeal listed to be heard sometime between September 2013 and January 2014.  As a consequence, the trial in the High Court proceedings has been put back from October 2013 to April 2014, pending the result of the appeal.

This development follows closely upon another case in which the availability of such LIBOR claims has been considered.  The Court of Appeal has recently also granted permission to appeal from a decision of Mr Justice Cooke in Deutsche Bank AG v Unitech Global Ltd & another [2013] EWHC 471 (Comm).  In contrast to the Graiseley case, the appeal in that case is being brought by the claimants against the Judge's refusal to allow LIBOR-related allegations to proceed to trial, on the basis that they did not have reasonable prospects of success.  That appeal is listed to be heard between July and December 2013 and it is possible that the Court of Appeal will consider it in conjunction with the Graiseley appeal.

Both these appeals will be closely watched and we will continue to monitor and report on any developments.