The Financial Conduct Authority (“FCA”) has now applied to intervene in and make written and oral submissions to the Court of Appeal at the appeal hearing of the interest rate swap case of Messrs Green & Rowley v The Royal Bank of Scotland plc.
The first instance decision of His Honour Judge Waksman in the High Court of December 2012 is currently under appeal and is due to be heard by the Court of Appeal on the 14 and 15 October 2013.
Jon Green, senior associate of the specialist financial litigation team of Clarke Willmott LLP solicitors now acting on behalf of the appellants, said:
“The FCA’s intervention to assist the Court of Appeal with regard to the interpretation of the FCA’s own rules is welcomed by my clients.
The appeal in this case raises two key issues,
1. Whether the statutory duty of compliance with the Financial Services Authority’s Conduct of Business Rules (“COB”) COB 2.1 and COB 5.4.3 gave rise to a duty concurrently owed to the bank’s clients in tort (negligence) ;and
2. if so, for the purposes of complying with COB 2.1 and COB 5.4.3, what was required from the bank as regards the extent of the risk warning it should have provided to its clients in relation to the break costs of the swap product.
The Financial Services Authority stated in its Interest Rate Hedging Products Pilot Findings report of January 2013, which found that over 90% of the cases it had looked at did not comply with one or more of their regulatory requirements, that they expected to see:
“…that for the disclosure of break costs to comply with our regulatory requirements, the bank should be able to demonstrate that:
In good time before the sale, the bank provided the customer with an appropriate comprehensible and fair, clear and not misleading disclosure of any potential break costs.”
The FSA report came out a month after the decision of the High Court in the case of Green & Rowley. Messrs Green & Rowley were not provided with the information that the FSA says it would have expected to see to comply with its regulatory requirements.
The decision in Green & Rowley therefore stands at odds with the findings of the FSA set out in its report of January 2013.
The appeal therefore has great significance for anyone sold an interest rate hedging product (“swap”) and any assistance that the FCA can provide to the Court of Appeal in determining the appeal is to be welcomed.”