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Interest Rate Swap Mis-selling Claim Dismissed by the Court of Appeal

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A recent decision by the Court of Appeal has dismissed the appeal of Mr Green and Mr Rowley against the Royal Bank of Scotland for the mis-selling of an interest rate hedging product. But what does the decision mean for existing and future claims?

At the Appeal, lawyers for Green and Rowley argued that the High Court had been wrong to find that there was no common law duty to comply with the Conduct of Business Rules (“COBs”) when a service was being provided. The Court of Appeal rejected the argument outright and so the Appeal failed.

On the face of it, the Court of Appeal’s decision could be interpreted as a bad sign for other mis-selling claims but it should not discourage affected bank customers from pursuing complaints through the FCA Review or from issuing Court proceedings.

A significant problem for Mr Green and Mr Rowley in this case was that the easiest claim for them to advance was time-barred.

The case that Mr Green and Mr Rowley were left to run was highly fact specific and turned on the strength of the evidence presented as to what precisely was said to them in relation to the suitability of the products available to them. Unfortunately for Mr Green and Mr Rowley, they had no contemporaneous written documents to support their contention that the bank had given them negligent advice. Whereas the bank was able to produce notes from the time the interest rate hedging product was entered into and provided witness evidence which the Court described as impressive.

The case has not changed the law in respect of the main causes of action which affected bank customers rely: namely, breaches of COBS, misrepresentation, negligent misstatement or negligence. However, the case does serve to highlight the importance of seeking legal advice as soon as possible not only to avoid claims becoming time-barred but also to ensure that vital evidence is preserved and witness statements are recorded before recollection of key events fails.
 

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