Property Alliance Group v Royal Bank of Scotland (Ch) 21/12/16

Claims arising out of a bank’s sale of interest rate derivative products failed. The bank had sold four swaps to the claimant between 2004 and 2008. In 2010 the management of the claimant’s banking affairs was transferred to a division within the bank called the Global Restructuring Group. The claimant sought rescission and/or damages arising out of the bank’s representations and/or breaches of contract in connection with the swaps’ sale. The claimant contended that the swaps did not provide a solution to, or protect it from, its interest rate risk and could not properly be described as hedging instruments. The court held that the swaps had been entered into in the context of a hedging requirement in facility agreements, which contained express provisions excluding any advisory duties or fiduciary relationship on the bank’s part and made clear that the claimant was acting on its own account and would be exposed to interest rate risk in certain circumstances. A reasonable representee would have considered references to the term “hedge” in those agreements to be generic and would not have understood them to contain a representation as to the quality of the transaction on which reliance could be placed. There was no implied term that the swaps would be suitable for the contractual purpose of hedging the claimant’s interest rate risk or that the bank had to act in good faith and in accordance with fair dealing which would have been contrary to the terms of the facility agreement which excluded equitable and fiduciary duties. The claimant also contended that it had been transferred to the GRG in breach of implied terms in the facility agreements that required the bank to act in good faith and not in a commercially unacceptable or unconscionable way. The court held there was no such implied term and even if there had been, the bank would not have been in breach of it. In relation to the LIBOR claims the claimant argued that the bank had made misrepresentations including fraudulent misrepresentations guaranteeing the quality of LIBOR and the way in which it was set and that had it known of LIBOR’s manipulation it would not have entered into the swaps which were LIBOR based. Although a term would be implied in each of the swaps that the parties would conduct themselves honestly when performing the contract, the bank’s mere proffering of draft swaps referable to the LIBOR rate was insufficient conduct from which the alleged misrepresentations could reasonably be inferred. Implied terms as to the quality and setting of LIBOR could be implied into the swaps if and only to the extent that they were restricted to the bank’s conduct. The conduct of unknown banks on the LIBOR-setting panel would not have been within the parties’ contemplation. There had been no breach of the implied terms. In any event the evidence did not support the claimant’s contention that it had entered into the swaps in reliance on the LIBOR representations.