What is the way forward for swaps mis-selling litigation, asks Simon Duncan
The fundamental difficulty that claimants face is that afforded by the supremacy of contract in English law. The banks have entered into contractual relationships with their business customers on terms that exclude the provision of advice. The same terms make it plain that the bank deals on an execution-only basis and that the customer should seek their own independent advice as to the suitability of the swap, or otherwise.
Where the parties are commercial entities with access to their own legal and financial advice and they elect to make a bargain, the English courts will hold the parties so bound. Equity will be very slow to intervene in such circumstances. Against this doctrinal position, the reported cases thus far make unsurprising reading (see Green & Rowley v Royal Bank of Scotland [2013] EWCA Civ 1197).
However, I suggest that what we have seen thus far
