Alex Fox & Emma Davies suggest there is reason for cautious optimism for claimants involved in interest rate swaps litigation
For many individuals and businesses affected by the mis-selling of interest rate hedging products, securing compensation or redress must resemble a near impossible obstacle course.
The Financial Conduct Authority’s (FCA) review has left many potential claimants unsatisfied and out of pocket—and in some cases, out of time to bring a claim in the courts. Limited companies have faced a further barrier, with the courts holding that they could not pursue a claim against a financial institution for breach of statutory duty because they are not “private persons”. Those who have succeeded in getting their case before the courts have found further hurdles, with the courts preferring to construe contracts literally, usually in favour of the banks, and refusing to extend or re-examine the reality of a bank’s duty of care to its customers.
But all is not lost. Recent decisions indicate that the ground is shifting slightly—not earth-shattering movements, but potentially great enough to level the playing field slightly.
