Roundup of upcoming cases and anticipated UK regulatory developments

On the Horizon

SUMMER 2016

Cases to watch

  • Fondazione Enarsco v Lehman Brothers Finance SA & Anor – early termination provisions in ISDA Master Agreement (1992) – what does the requirement to provide a calculation of loss “within a reasonably practicable time” mean? Defendant’s application for permission appeal to be heard by Court of Appeal on 5 July
  • Property Alliance Group Ltd v RBS – swaps mis-selling and LIBOR manipulation case – case ongoing and scheduled to last until 29 July
  • Libyan Investment Authority v Goldman Sachs – the LIA is suing its former financial advisor over investments made in complex derivatives which the LIA claims it did not understand. The trial is scheduled to run until the end of July
  • (1) Bailey (2) MTR Bailey Trading Ltd v Barclays Bank – swaps mis-selling case – the Court of Appeal will hear an appeal on 11 or 12 July. One issue it will consider is when a company might constitute a “private person” for the purposes of s.138D (formerly s.150) of FSMA 2000

Regulatory developments

  • Government intends to consult on regulations implementing the Fourth Money Laundering Directive at some point after July
  • The PSR is expected to publish its final report on its market review into the ownership and competitiveness of infrastructure provision
  • HM Treasury is expected to consult on how PSD2 will be transposed in the UK
  • The CMA is expected to publish its final report on its market investigation into retail banking in early August
  • The FCA is expected to publish its final report on its market study into investment and corporate banking in the summer
  • The FCA is consulting on Minor Handbook changes related to requirements for firms dealing with mortgage borrowers experiencing a payment shortfall. Comments due by 10 August

AUTUMN 2016

Cases to watch

  • Gemini (Eclipse 2006-3) Plc v CBRE and Warwick Street LLP – investment vehicle Gemini is suing CBRE for an alleged overvaluation of a 37 property portfolio. Gemini also claims substantial damages for swap losses under interest rate hedging instruments. The trial starts on 3 October for 10-12 weeks
  • Arcadia Group and Ors v Visa – allegations that Visa charged anti-competitive credit card fees. Due to go to trial on liability in October
  • Bank Mellat v HM Treasury – the bank is suing for losses arising out of a 2009 Treasury order which prohibited UK financial institutions from doing business with the bank due to its alleged links with Iran’s nuclear programme. The trial starts in October

Regulatory developments

  • New National Cyber Security Centre to open in London
  • The FCA intends to publish its final report on its credit card market study in Q3
  • Senior Managers’ Regime – relevant firms are to identify staff carrying on either a client dealing significant harm function or an algorithmic trading significant harm function and ensure that they are trained in respect of the conduct rules by 7 September. Firms must also comply with the new whistleblowing rules by this date
  • The Ministry of Justice is expected to introduce restrictions on the charges and manner in which Claims Management Companies can contract with consumers

Judgments expected soon

  • Supreme Court – Willers v Gubay – does a tort of malicious prosecution of civil proceedings exist in English law?
  • Court of Appeal – JSC BTA Bank v Ablyazov (Defendant) and Shalabayev (Intervener) – should an intervener be joined into the bank’s application for a charging order over property which he claims to be the beneficial owner of in circumstances where the court has already decided on the criminal standard of proof that the defendant is the true beneficial owner?
  • Supreme Court – Patel v Mirza – illegal contracts – is P entitled to recover money transferred to M in furtherance of a contract entered into for an illegal purpose in circumstances where P only withdrew once the contract could no longer be performed?