The first Appeal hearing involving the mis-selling of interest rate swaps began at the Court of Appeal, which could have significant implications for thousands of businesses.
Over 40,000 interest rate swap products have been sold throughout the UK attached to business loans as a protection against interest rate rises. As a result, businesses have been paying additional fees that run into hundreds of thousands of pounds to protect against interest rate rises that have not occurred, and face extortionate penalty costs if they break their contracts.
Clarke Willmott LLP is acting for Paul Rowley and John Green in the Appeal. The business partners claim that RBS mis-sold them an interest rate swap in 2005 by failing to inform them of the additional costs attached to the swap. The costs have totalled £400,000 against a £990,000 loan Their claim was dismissed in December 2012 but since then the FSA, which was recently replaced by the FCA, has published a review of its investigation into the selling of interest rate swaps and concluded that in order to comply with its regulatory requirements, it expected banks to provide customers with:
”an appropriate, comprehensible, fair, clear and not misleading disclosure of any potential break costs”
The review also found that over 90% of the cases it had looked at did not comply with one or more of their regulatory requirements. Clarke Willmott LLP is acting for dozens of clients affected by interest rate swaps, with the average break costs for these amounting to £353,000.
Jon Green, the appellants’ solicitor, said: “Messrs Rowley and Green were not provided with a comprehensible and fair disclosure of the potential break costs associated with their product. Indeed, it is difficult to imagine someone entering into an agreement such as this after being properly advised of the risks involved.
“This is potentially a watershed case for the thousands of businesses that have been impacted by interest rate swaps. However, those who may have a case should seek advice as to their position now as in most instances they will only have six years from the date of the swap agreement to commence proceedings.”
Phil Orford, Chief Executive of the Forum of Private Business, said: “This is another example of small businesses being hit hardest by hidden fees. Most interest swap products were not suitable for small businesses as evidenced by the number of complaints and the sheer scale of the cost burden placed upon innocent business owners. This was commission focused mis-selling in its worst form.
“The Forum of Private Business continues to support many members as they travel their own path to resolve and reconcile the damage these products have done to their businesses. This appeal will be an interesting milestone given previous guidance and, if successful, could lead to a PPI style overhaul of the way claims are settled, benefitting many other business owners who have also found their claim for recompense rejected.”
A final decision on the case is expected later this year.