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09 March 2017 / Kumaran Sivathillainathan
Issue: 7738 / Categories: Opinion
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Unnatural selection in financial mis-selling

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The courts not defendants should be shaping case law in financial mis-selling litigation, says Kumaran Sivathillainathan

A High Court claim being brought by Wenta, a Queen’s award-winning not-for-profit, against NatWest and RBS in relation to interest rate hedging product (IRHP) mis-selling may have important implications for the approach adopted by claimants, defendants and the court in IRHP mis-selling litigation.

Titan Steel & the “private person” test

Under s 138D (previously s150) of the Financial Services and Markets Act 2000 (FSMA 2000), a “private person” is entitled to bring a claim for damages against a bank that has breached the Conduct of Business Sourcebook rules (COBS), which are the rules that govern how IRHPs should be sold (prior to 1 November 2007, the relevant rules were the Conduct of Business rules).

In Titan Steel Wheels v The Royal Bank of Scotland [2010] EWHC 211 (Comm), [2010] All ER (D) 137 (Feb), the High Court decided that companies carrying on business of any kind were not “private persons” and were therefore not entitled

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NEWS
The government is considering introducing a Serious Fraud Office (SFO) financial incentives scheme for individuals who report economic crime
Defendants will attend their first court hearing virtually via a secure link from a police custody suite, the Ministry of Justice (MoJ) has confirmed in its response to Lord Leveson’s independent review of the criminal courts
The Law Commission has proposed a major overhaul of product liability laws to bring them in line with the digital age and era of artificial intelligence (AI)
The Sentencing Council is consulting on three new and three revised guidelines for ‘Bladed article and offensive weapon etc offences’
The Ministry of Justice has laid secondary legislation to allow, for the first time, proceedings in the Administrative Court, a part of the King’s Bench Division in the High Court, and sentencing remarks by the Chief Magistrate to be broadcast
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