The recent decision in Crestsign Ltd v National Westminster Bank plc is the latest in a series of cases relating to the mis-selling of financial products and provides an extreme example of how banks have been able to escape liability, notwithstanding findings of negligence and unreasonable disclaimers.
The Supreme Court has delivered an important decision on the application of Articles 27 and 28 of EU Regulation 44/2001 in the English courts. The decision has once again emphasised the importance that the English courts in particular attribute to contractual jurisdiction clauses and their willingness to give them wide effect.
The High Court recently considered whether the Royal Bank of Scotland (RBS) was liable to an investor, Torre, in relation to a structured lending facility arranged by RBS for Dunedin Property Industrial Fund (Holdings) Limited. Dunedin went into administrative receivership in late 2008, which led to significant losses to the lenders in the finance structure, including Torre.
The number of new claims launched in the High Court suggests that the increase in substantial, complex litigation following the credit crunch is continuing. Increasingly, claims are being launched against investment banks by institutional investors and other banks that were sold 'toxic' financial products. However, the devastating upsurge in claims that was predicted in the darkest days of the credit crunch has yet to materialise.
In cases arising from the Lehman Brothers insolvency, the English and US courts have recently considered the legality of 'flip' provisions in the context of synthetic collateralized debt obligation transactions. The provisions were challenged in the English courts on the basis that they breached the English 'anti-deprivation' rule, and in the United States under the US Bankruptcy Code.