On 2 March 2018, the Court of Appeal handed down its highly-anticipated judgment in Property Alliance Group (“PAG”) v Royal Bank of Scotland (“RBS”), dismissing all of PAG’s grounds of appeal and overturning a finding of fraudulent misrepresentation against RBS. The case has been closely watched as it was the first claim for damages arising from LIBOR manipulation to reach trial. Although PAG was unsuccessful on the facts, the Court of Appeal decision carries potentially significant consequences, in particular for LIBOR setting banks.

Introduction

In January 2016, PAG’s claim was transferred into the (then recently-created) Financial List[1] in the High Court, by Order of the then Chancellor, Sir Terence Etherton. Now, as Master of the Rolls, he was one of the three judges hearing PAG’s appeal in the Court of Appeal. In January 2016, he directed that the PAG action was in effect a ‘test case or lead case’ on the basis that:

. . . the allegations concerning the alleged misselling of the four interest rate swaps and particularly the allegations concerning the alleged improper conduct of RBS in relation to the fixing of LIBOR rates involve important issues of general market significance, which are clearly relevant to other participants in the markets and their clients. It is well known, that there are others who have claims and are now or are likely in the future to be litigating, in relation to similar issues arising out of the alleged rigging of LIBOR rates. It seems reasonably clear that the judgment following trial in the present proceedings will have an impact on other cases already launched and those which will be launched in the future. It is also likely that decisions about provisions in the agreements between RBS and PAG limiting RBS’s exposure to claims for negligence will have relevance elsewhere in the markets.

Indeed, the Court of Appeal decision has significant implications for a potentially large number of other misselling claims that are pending or currently before the courts. It provides clarification of the duty owed by banks when providing information to customers. The decision also provides important clarification as to when a party may exercise an unfettered contractual right – a point of some consequence for other claims which may arise as a result of activities of RBS’s Global Restructuring Group (“GRG”) in particular.

Of potentially most significance, however, is the Court of Appeal’s finding that in proposing a sterling LIBOR denominated transaction, RBS made an implied representation to the effect that RBS was not manipulating and did not intend to manipulate sterling LIBOR. PAG’s claim itself was unsuccessful because it failed to establish on the facts that RBS had manipulated sterling LIBOR.

Background

PAG is a property investment and development business that, at the time of the relevant swaps, used RBS as its principal source of commercial banking facilities. PAG entered into LIBOR-referenced finance agreements with RBS which required that PAG enter into interest rate hedging instrument(s) that were acceptable to RBS. The proceedings concerned four such swap transactions entered into between 2004 and 2008 (the “Swaps”).

From 2007-8, interest rates went down dramatically, with the result that the level of interest that PAG was paying under the Swaps substantially exceeded what it was receiving under them. This had a corresponding impact on the break costs, which, when PAG terminated the Swaps in 2011, totalled £8.261 million. Previous to this, RBS had transferred its relationship with PAG to GRG in 2010, which then instigated valuations of the properties held by PAG over which RBS held security.

PAG sought rescission of the Swaps and/or damages. A number of the points that were heard at first instance were not pursued on appeal. Four key issues were considered by the Court of Appeal, namely whether:

(1) RBS fraudulently made implied representations about LIBOR and how it was set which were false (the “LIBOR Claims”);

(2) RBS was wrong to have PAG’s portfolio revalued in August 2013 (the “Valuation Claim”);

(3) RBS may be liable in tort for negligent misstatement as a result of an alleged failure to provide PAG with information about potential break costs (the “Negligent Misstatement Claim”); and

(4) RBS falsely represented to PAG that each of the Swaps was a “hedge” and, hence, that it would reduce PAG’s interest rate risk (the “Misrepresentation Claim”).

Of particular significance is that part of the judgment dealing with the LIBOR Claims, which we address first.

The LIBOR Claims

The claim: PAG’s case was that if it had realised that LIBOR had been manipulated, it would never have agreed to the Swaps in the first place, such that they should be rescinded. The claim for rescission was premised on a series of implied misrepresentations in respect of LIBOR which were said to have been made by RBS. This followed findings by the then FSA of manipulation in connection with RBS’s submissions that formed part of the calculation of Japanese yen and Swiss franc LIBOR, and inappropriate conduct in relation to Japanese yen, Swiss franc and US dollar LIBOR submissions. No specific findings had been made by any regulator in relation to the LIBOR sterling rate.

Previous case law: The only Court of Appeal case to previously address the issue of the extent of LIBOR- related representations by banks was Graiseley Properties Ltd v Barclays Bank plc [2013] EWCA Civ 1372 – a case that was keenly watched before it finally settled. That case led to very clear – albeit obiter – observations from Longmore LJ in a Court of Appeal interlocutory hearing as to whether there was an obligation on a bank to disclose its own dishonesty or breach of statutory duty.

Longmore LJ (with whom Underhill LJ and Sir Bernard Rix agreed) held that “the banks did propose the use of LIBOR and it must be arguable that, at the very least, they were representing that their own participation in the settling of the rate was an honest one.” He went on to hold that in proposing transactions that were governed by LIBOR, the bank’s conduct could constitute an implied representation as much as a customer’s conduct in sitting down in a restaurant amounts to a representation that he is able to pay for his meal. He concluded that “The law should strive to uphold the reasonable expectations of honest men and women”. However, whether or not such (mis)representation could be made out, and whether in such a case liability accrued to the LIBOR setting bank, would need to be tested properly by way of a trial with a full investigation of the facts. PAG was the first such case. At trial, PAG failed even to establish that a representation as to LIBOR has been made by RBS.

The Court of Appeal’s findings – the test for implied representations: The Court of Appeal held that the implied representation under consideration was essentially whether “RBS was representing that, at the date of the Swaps, RBS was not itself seeking to manipulate LIBOR and did not intend to do so in the future.” The Court confirmed that an implied misrepresentation can arise from words or conduct and went on to consider the test for an implied misrepresentation proposed by Coleman J in Geest plc v Fyffes plc [1999] 1 All ER (Comm) 672. It stated that “We do think it is a helpful test, in relation to the existence of an implied representation, to consider whether a reasonable representee would naturally assume the true state of facts did not exist and that, if it did, he would necessarily have been informed of it”. Although it approved the test, the Court of Appeal made clear that there must be clear words or conduct of the representor from which the relevant representation can be implied.

The Court of Appeal’s findings – RBS made a representation as to sterling LIBOR: The Court of Appeal went on to hold that in proposing the Swap transactions with their reference to LIBOR as transactions which PAG should consider as fulfilment of the obligations in the loan contracts, “RBS did make some representation to the effect that RBS itself was not manipulating and did not intend to manipulate LIBOR”. It also stated that “Such a comparatively elementary representation would probably be inferred from a mere proposal of the swap transaction.”

The Court held that the misrepresentation applied to sterling LIBOR as a whole, rather than the approach taken by the trial judge (if, contrary to her finding, an implied misrepresentation had been made), which was to restrict it to 3-month LIBOR. It held that the idea that RBS contemplated manipulating some tenors of sterling LIBOR but not others seemed “particularly far-fetched”.

The Court of Appeal’s findings – limits to the representation: The Court of Appeal was not, however, prepared to extend the implied representation any further than sterling LIBOR. It noted observations made by Flaux J, at first instance, in Graiseley v Barclays that “[i]t seems to me that it is a wholly artificial exercise to seek effectively to divide up the various LIBOR fixings or manipulations into separate currencies.” Flaux J referred to manipulation of LIBOR in a number of currencies and referred to the scope for “cross-infection.”

The Court of Appeal noted, however, that Flaux J’s comments were only that the bank’s representations arguably applied to all LIBOR currencies following consideration of an interim application for permission to amend pleadings. It accepted that the facts in some cases may be such that cross-infection might become relevant – evidence of manipulation by a submitter in yen-denominated LIBOR might render false representations in relation to sterling‑denominated LIBOR transactions. However, it did not accept the argument that there otherwise could be “cross-infection” between separate LIBOR currencies such that evidence of manipulation of, for example, dollar LIBOR could constitute evidence of manipulation of sterling LIBOR. In the PAG case, the parties did not have any assumptions or expectations in relation to yen or Swiss franc LIBOR at the time the representations were made – the position in relation to yen or Swiss franc LIBOR could not be said to have induced PAG into the sterling LIBOR‑denominated transactions.

In short, an implied representation was held not to extend further than the particular transactions allegedly induced by the representation. In PAG, the transactions involved sterling LIBOR – hence, the implied representation could not extend further than sterling LIBOR, regardless of the tenor.

The Court of Appeal’s findings – the test for fraud: As the Court found that the implied representation made by RBS was not false, it was not, therefore, necessary to determine whether, via the representation of an employee who was not involved in LIBOR submissions, RBS itself intended to make a representation it knew to be false, which is necessary for a finding of fraud. However, the Court left open the question of how this rule can apply to an implied representation when it was not in the representor’s mind: “It may be the case that an implied representation of this kind can never (or quite rarely) be fraudulent; on the other hand recent decisions about dishonesty, such as Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476 and Ivey v Genting Casinos UK Ltd [2017] UKSC 67, [2017] 3 WLR 1212, may be relevant.” This point will need to be resolved by another case and/or court.

The Valuation Claim

Also of potential significance was the Court’s decision as to whether RBS (through GRG) was wrong to have PAG’s portfolio revalued in August 2013 (the “Valuation Claim”). PAG argued that RBS’s right to require the valuation to be prepared (at PAG’s cost) was not unfettered but was subject to an implied term that required RBS to act “reasonably, in a commercially acceptable or rational way, in good faith, for a proper purpose.”

At first instance, Asplin J held that RBS’s right to commission the 2013 valuation and to recover its cost from PAG was not fettered by any implied term, and, in any event, there had been no breach of any such term. The Court of Appeal upheld the judge’s ultimate conclusion and dismissed the claim, but differed in holding that, although RBS was free to act in its own interests, this right was wholly unfettered: “It can, however, be inferred that the parties intended the power granted by clause 21.5.1 to be exercised in pursuit of legitimate commercial aims rather than, say, to vex PAG maliciously. It appears to us, accordingly, that RBS could not commission a valuation under clause 21.5.1 for a purpose unrelated to its legitimate commercial interests. . . .

The Negligent Misstatement Claim

PAG claimed that RBS was liable in tort for negligent misstatement “by failing to disclose to PAG its estimate of the potential cost of breaking the Swaps during their life or to provide worked break cost scenarios, presented an inaccurate and incomplete explanation of each proposed swap.”

Each of the Swaps was documented in Post‑Transaction Acknowledgements (“PTA”) and confirmations. Each PTA set out the interest rates payable by PAG, including an explanation of what PAG would pay overall if the notional amount of the Swap were considered together with borrowing of a corresponding sum. Each PTA pointed out that PAG would be exposed to interest rate risk if there were a mismatch between “the start dates of the underlying borrowing and any protection.” The PTAs also set out what the position would be if PAG chose to bring the Swap to an end before maturity, explaining that there could be a break cost payable.

Confirmation documents formally recorded that RBS could terminate the structure at zero cost after a certain period. They also included a non-reliance representation that each party was acting on its own account and made its own independent decisions to enter into the transaction.

At first instance, Asplin J rejected PAG’s claim, holding that there was no duty to reveal the extent of the break costs or to provide scenario analysis. In any event, the judge found that PAG did not enter into the Swaps as a result of the information having been withheld. In the judge’s view, the information provided was not inaccurate. She also noted that it was not market practice to give information about potential break costs or MTM (i.e., the worst case cost to PAG of breaking the Swaps at any time during the lifetime of the Swaps) at that time.

The Court of Appeal upheld the judge’s decision on the facts. However, the Court focused on (re)emphasising that the orthodox portion on duties of care, consistent with the Hedley Byrne v Heller duty not to misstate clarification of the law on negligent misstatement, in particular, clarified the relevant tests.

PAG’s case: PAG’s primary case was that RBS was liable for breach of the classic Hedley Byrne duty not carelessly to misstate. PAG relied on a particular passage of Mance J’s judgment in Bankers Trust International plc v PT Dharma Sakti Sejahtera [1996] CLC 518 at 533 that:

[A] bank negotiating and contracting with another party owes in the first instance no duty to explain the nature or effect of the proposed arrangement to that other party. However, if the bank does give an explanation or tender advice, then it owes a duty to give that explanation or tender that advice fully, accurately and properly.

PAG also relied on a subsidiary line of argument (first put forward in Crestsign Limited v National Westminster Bank plc [2014] EWHC 3043) that RBS had breached its common law “mezzanine duty” to: , s [sic] “take reasonable care when providing information to ensure that such information is accurate and fit for the purpose for which it is provided to enable the recipient to make a decision on an informed basis.” (summarised at 43)[.]

The Court examined the jurisprudential context of Mance J’s judgment in Bankers Trust. Importantly, it stated that the expression “mezzanine duty” (or “intermediate duty”), first coined in Crestsign, be best avoided because it unhelpfully suggests that there is a “continuous spectrum of duty” from the duty not to misstate at one end of the spectrum to the duty to provide full advice at the other.. Instead, in the Court of Appeal’s opinion, the focus should be on the responsibility assumed in the particular factual context of the transaction or relationship in issue.

The PAG Court of Appeal judgment reflects a “return” to the orthodox form of Hedley Byrne liability for negligent misstatement, set out in Mance J’s judgment in Bankers Trust. That is, in the absence of an advisory relationship or special circumstances that establish a more onerous duty of care, there is no duty to explain the nature or effect of a proposed arrangement to a customer.

Historically, the concept of a “mezzanine” duty of care may have been developed in order to overcome the protection that had been built for financial institutions by the doctrine of contractual estoppel. Although the concept of what has become known as contractual estoppel was considered in earlier cases, its modern form was established in Peekay Intermark v Australia and New Zealand Banking Group [2006] EWCA Civ 386, where Moore-Bick LJ explained it as follows:

There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, where it be the case or not . . . Where parties express an agreement. . . in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least as far as concerned those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel.”

Peekay has been applied in a series of contractual estoppel cases, including JP Morgan Chase v Springwell Navigation [2008] EWHC 1186 (Comm), Titan Steel Wheels Ltd v The Royal Bank of Scotland plc [2010] EWHC 211 (Comm) and Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc [2010] EWHC 1392 (Comm). Accordingly, it is open to the parties to agree contractually on the factual basis upon which they are transacting, even if those facts are inaccurate; and contractual estoppel will apply to preclude a misstatement claim in relation to those facts. This has resulted in significant protection for financial institutions, particularly in view of the industry use of standardised contractual clauses (for example, in the ISDA Master Agreement) including clauses such as non-reliance, no warranty, no advice, sophisticated investor and risk disclosure statements.

In the aftermath of the financial crisis, a number of cases have considered claims for losses suffered as a result of investments going awry, in which claimants have attempted to circumvent the protective clauses relied upon by the financial institutions, leading to the development of arguments such as the concept of a “mezzanine duty.” For example, in Thomas v Triodos Bank [2017] EWHC 314 (QB), the court held that Triodos Bank owed the claimants an intermediate duty to explain the financial consequences of switching their lending from a variable rate of interest to a fixed rate. The decision suggested that courts may be prepared to infer that a bank has assumed a duty of care to a claimant in circumstances where the bank has voluntarily undertaken to comply with certain principles – in this case, the Business Banking Code, which included a promise to explain the financial implications of a product when asked by a customer – and has not taken steps to limit its liability.

PAG suggested that these cases should not be viewed as establishing an intermediate duty of care but, rather, should be characterised by the responsibility assumed in the particular factual context. The Supreme Court has affirmed this orthodox Hedley Byrne and Caparo approach to misstatement and assumption of responsibility in the recent case of Steel v NRAM [2018] UKSC 13, in the context of a negligent misstatement made to a(n) (unrepresented) lender by a solicitor representing the borrower. The court found that, in the absence of a contractual relationship between the parties, an assumption of responsibility must generally be demonstrated in order to establish liability for negligent misstatement. This was not made out on the facts because it was not reasonable for the lender to rely on the statement of an opposing party’s solicitor without independent inquiry or verification.

The Misrepresentation Claim

Finally, PAG claimed that RBS falsely represented that each of the Swaps was a “hedge.” It argued that, in fact, the Swaps did not act as a hedge against the risk of adverse movements in interest rates because they did not overall reduce the interest rate risk exposure.

The effect of the Swaps (as described above) were essentially to provide PAG with interest payments guaranteed to be within a certain range, however high the three-month LIBOR rate went up: “interest rates could either fall (so that RBS would be “in the money”) or rise (with the result that PAG would be “in the money”).”

The Swaps, therefore, acted as a hedge against an increase in rates. PAG argued that given the break costs should interest rates drop and given also RBS’s right of cancellation, the Swaps were not properly seeking protection against adverse movements in interest rates. Given also that the Swaps lasted beyond the period of the underlying loan agreements, the Swaps did not have the character of a hedge.

In the Court’s view, a critical feature on the facts of this case was that each loan agreement required PAG to enter into an interest rate hedging agreement. The purpose of the Swaps was to ensure that PAG was protected against increases in interest rates which otherwise could have affected PAG’s ability to pay interest on the underlying loans.

The focus when entering into the Swaps was on interest rate increases rather than decreases. The Court also found that PAG was aware both that the Swaps extended beyond the period of the relevant loans and of RBS’s cancellation rights under the Swaps such that if the Swaps became commercially unattractive to RBS as a result of interest rate rises, RBS would exercise its cancellation rights.

As such, on the facts, a reasonable person would not have understood RBS’s use of the term “hedge” to have the meaning suggested by PAG (i.e., an overall reduction in interest rate risk exposure) – nor on the facts was this PAG’s understanding. The generic or wider use of the term “hedge” was found not to be misleading. Although the Courts will consider the product, the factual context and the intention and understanding of the parties at the time of entering into the product in determining whether a description is misleading or otherwise, this is nonetheless a helpful a reminder of the importance of caution when labelling a product.

Conclusion

Whilst PAG was unsuccessful on the facts of this test case, the Court of Appeal’s judgment brings clarity as to the ingredients required for a putative claim for misselling of financial products. Possibly of some significance to the broader market is the identification of an implied representation as to LIBOR where a bank has proposed a transaction based on LIBOR – provided that the proposed currency‑denominated LIBOR rate is that in which there is a finding or admission of manipulation. Nonetheless, putative claimants will need to prove reliance on the representation, that the representations were false (in light of likely contractual exemptions or qualifications), and that the relevant institution intended to make a representation it knew to be false.

The case also provides important clarification on the law of negligent misstatement and, in particular, whether a broader duty beyond the duty not to misstate is owed. Importantly, the Court rejected the concept of a mezzanine duty which some, but certainly not all, first instance judgments had suggested may sit between the separate duties to give full advice and to not misstate. As such, the case reflects a confirmation of the orthodox view, namely that, in a non‑advisory relationship, a bank owes a duty not to misstate but is not required to explain the effect of a transaction.

[1] Disputes are eligible for inclusion in the Financial List if they primarily concern financial disputes over £50m, or require particular market expertise, or deal with issues of market importance generally.