Are Internal Regulatory Compliance Reviews Relevant to Bank Misselling claims? Yes, Says High Court in First Virtual Hearing After Lockdown
Fine Care Homes Ltd v NatWest Markets plc  EWHC 874 (Ch) concerns a claim for negligence and misrepresentation based on the alleged mis-selling of an interest rate hedging product. The Court recently granted, in part, Fine Care Homes Ltd’s (“Fine Care“) application for specific disclosure against NatWest.
The hearing of the application took place via Skype on 25 and 26 March 2020 and was one of the first virtual Court hearings, coming just two days after the Government imposed lockdown on 23 March 2020.
Specific disclosure of regulatory compliance review
In particular, the Court ordered NatWest Markets plc (“Bank“) to disclose its file relating to the review of the sale of the interest rate hedging product that the Bank had carried out under an agreement with the Financial Conduct Authority (“FCA“). The review had been in response to the FCA’s concerns about the sales of these type of products and focused on the Bank’s regulatory compliance. The Bank argued that the review was irrelevant because it did not go to the issues to be considered at trial.
However, despite the Bank’s “powerful arguments”, it was held that the review files were relevant and disclosure was ordered on the basis that:
“…although those conducting the review were not applying (or purporting to apply) the common law principles which will need to be considered at trial, they were considering compliance with the relevant regulatory requirements which… will no doubt inform – and indeed provide the starting point for – the application of those common law principles“.
Preparation for remote hearings
In response to various public announcements in the lead up to lockdown, the Chancellor of the High Court issued a Protocol on Remote Hearings on 19 March 2020 setting out best practices for hearings which were due to take place within the Business and Property Courts. It was grasped relatively quickly that while physical attendance at hearings was likely to be inappropriate, rather than simply adjourn, where possible hearings were still to take place, albeit remotely.
Following a test run, which highlighted some practical and technical considerations, the hearing of this case ran smoothly. The judge in this case praised the parties’ proactive conduct to ensure the efficient progress of the hearing. See our previous blog post here on how the Courts have adapted to working remotely.
In 2013, the FCA ordered several high street banks to set up an independent review to assess whether non-sophisticated customers had been sold complex products that they did not understand. Banks were ordered to address ant concerns raised by the review, which included changing the terms of the hedging agreement or, in some cases, paying out compensation to the customer. This prompted a new wave of misselling claims, to which this decision will be relevant.