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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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