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25 July 2014 / David Pope
Issue: 7616 / Categories: Features , Commercial
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Swaps mis-selling litigation is not over yet, says David Pope

Limitation is looming large in swaps mis-selling litigation. Most of the swaps and other interest-rate hedging products (IRHPs) about which bank customers have complained were sold in or before 2008. The usual six-year limitation period, which generally runs at latest from the date of sale, has therefore expired in most cases. Any new mis-selling claim is likely to be met with a limitation defence. Many existing claims already have been.

The recent decision in Kays Hotels Ltd v Barclays Bank plc [2014] EWHC 1927 may have thrown customers a limitation lifeline, however. For Mr Justice Hamblen refused to strike out a mis-selling claim on limitation grounds even though proceedings began seven years after the IRHP in question was sold.

Facts of Kays Hotels

The customer in Kays Hotels ran a small hotel near Ipswich. In late 2005, it borrowed £1.34 million from Barclays and, as a hedge against its interest-rate exposure under the loan, it entered into a form of IRHP known as

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NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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