The Solicitors Regulation Authority (“SRA“), the regulatory body of solicitors in England and Wales, has conducted a thematic review of law firms acting on claims alleging “mis-sold” PPI. The review highlighted what the SRA regards as two significant shortcomings of such firms: (i) overcharging clients, and (ii) the use of standardised letters.
Financial Ombudsman Service releases plans and budget for 2018/19
On 28 March 2018, the FOS published its plans and budget (“Plan“) for the 2018/2019 financial year. The Plan follows a formal consultation by the FOS with its stakeholders in December 2017.
Squire Patton Boggs to host financial services conference on 18 April in London
Squire Patton Boggs’ London office will be welcoming over 100 legal and compliance professionals from a range of banks and financial institutions next week for a major financial crime and regulatory risk conference. We are hosting the event for the leading industry forum, MLROs.com. There will be a full programme of speakers covering a wide range of topics including:
- A regulator’s view of AML regulation.
- An update on the GDPR roll out with just five weeks to go.
- How to respond to a visit from the FCA.
- The role of metadata in tackling financial crime.
- A mock AML trial.
- The FCA’s approach to anti-bribery.
See the full programme and event details here.
We are looking forward to meeting all our guests on 18 April at what should be a thought-provoking event. There are a limited number of tickets still available via the MLROs.com website or available to clients and friends of the firm – please get in touch with your SPB contact.
Commercial Court evaluates the mechanism for calculating “close-out amounts” in transactions for derivatives under the 2002 International Swaps and Derivatives Association Master Agreement
Introduction
In Lehman Brothers Special Financing Inc. v National Power Corporation and another [2018], the Commercial Court was tasked with evaluating the mechanism for calculating “close-out amounts” in transactions for derivatives under the 2002 International Swaps and Derivatives Association Master Agreement (“2002 ISDA”). The 2002 ISDA is a standard market agreement used to set out the standard terms in transactions for derivatives; this replaced the 1992 ISDA Agreement (“1992 ISDA”). The 2002 ISDA is used widely in international markets for sales of derivatives including bonds, stocks and commodities.
In this case, the Court was faced with two challenging questions:
- Can a determining party make a second determination of a close-out amount?
- Does the 2002 ISDA impose an obligation on the determining party to act in an objectively reasonable manner (as opposed to a “rational” manner as stated under the 1992 ISDA)?
FCA publishes approach to enforcement consultation document
Last week the FCA published for consultation a paper describing its approach to enforcement. It has invited feedback on the paper by 21 June 2018.
Steel v NRAM: the Supreme Court re-examines liability for negligent misstatement
Last month the Supreme Court decided, on an appeal from the Scottish Inner House of Court of Session, that a borrower’s solicitors did not assume responsibility for, and thereby owe a duty of care to, the other side (the financier) in a commercial transaction.
The Court looks again at the rights of third parties identified in FCA notices
In the recent case of FCA -v- Grout [2018] EWCA Civ 71, the Court of Appeal confirmed the restrictive approach to third party rights pursuant to FCA notices previously laid down by the Supreme Court in Macris -v- FCA [2017] UKSC 19. We previously reported on the Macris decision on its way to the Supreme Court and following the judgment.
Singularis Holdings Limited – beware of Quincecare
Over 25 years ago, the case of Barclays Bank Plc v Quincecare [1992] 4 All ER 363 established that a bank owes a duty of care to both its customer and third parties to protect against fraud. In summary, a bank will be liable if it has reasonable grounds for believing that a payment it makes will be defrauding the customer.
The case of Singularis Holdings Limited v Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch) was significant, as it was the first instance in which a bank was found to have breached a “Quincecare duty”. The recent appeal of Mrs Justice Rose’s judgment in this case was unsuccessful in the Court of Appeal. An brief analysis of the judgment, as well as the associated implications for financial institutions, is detailed below.
Mastercard, the next instalment. The retailer strikes back
The previous four episodes of the Mastercard saga (as detailed in our previous blog posts) focussed on a number of legal battles between Mastercard and both consumers and retailers.
These disputes have centred on Mastercard’s alleged “uncompetitive” interchange fees and restrictive rules on cross-border acquiring. The latest claim by retailers follows a class action brought on behalf of consumers under the Consumer Rights Act 2015 in relation to the same charges.
The FCA speaks on building cyber resilience
The FCA’s Business Plan for 2017/18 identified cyber risk as a cross sector priority for the FCA. In keeping with the FCA’s drive to encourage firms to acknowledge, confront and manage cyber risk, at the PIMFA Financial Crime Conference on 25 January 2018, Robin Jones (Head of Technology, Resilience & Cyber, FCA) delivered a warning that along with the benefits of technological innovation come threats of increasingly sophisticated cyber-attacks. The most common are data thefts and attacks on company systems.
