In the first of a series of articles on banking litigation, Simon Duncan discusses how limitation can be used to counter swaps mis-selling claims
Many claimants are seeking damages for having been “mis-sold” an interest rate hedging product. However, limitation, if raised, can form an absolute defence to such claims.
In Kays Hotels Ltd v Barclays Bank Plc [2014] EWHC 1927 (Comm) the claimant was faced with this difficulty. The claimant had entered into an interest hedging product with a “collar” in December 2005. The claimant considered that this product had been mis-sold, more particularly that the bank was in breach of contract, breach of statutory duty and in breach of a common law duty of care (the “negligence claim”) having “mis-sold” the product.
Facts
The proceedings were issued on 8 November 2012. The bank’s position from the outset was that the claim was time-barred. The bank applied to have the claim struck out or otherwise summarily dismissed. The claimant accepted that the breach of contract and the breach of statutory duty claim were both time-barred. However, they contended that
