UK banking litigation – the key trends of 2017 and what to watch in 2018

Much as they did in 2016, cross-border financial transactions continued to generate litigation throughout 2017, and the English courts handed down a number of judgments on the thorny issues of governing law and jurisdiction in cross-border financial transactions. These judgments, in cases such as Dexia Crediop SPA and Deutsche Bank AG v Comune di Savona, demonstrate the complex procedural issues that financial services parties have to contend with before they can even begin to engage with the substance of their disputes. More litigation in this area can be expected in 2018 and beyond.

In the sphere of financial crime, English courts handed down judgment in two cases in 2017 that considered where responsibility for losses arising out of financial criminal conduct lay as between financial institutions and their clients: Singularis Holdings Ltd v Daiwa and UBS AG (London Branch) v KWL. The Defendant’s appeal in Singularis was dismissed by the Court of Appeal recently, and the Supreme Court is expected to decide in March whether it will hear an appeal in the UBS case.

Although not a financial services case as such, the most anticipated hearing of the year is SFO v ENRC on the question of privilege in the context of criminal investigations, which is scheduled to be heard by the Court of Appeal in July 2018. The recent decision in the case of Bilta (UK) Ltd v The Royal Bank of Scotland plc  (in which the Court held that litigation privilege covered an internal investigation prepared in expectation of an investigation by HMRC) is likely to give litigators some hope that the Court of Appeal will reverse the first instance decision of Mrs Justice Andrew. We also await the outcome of the appeal by PAG against the dismissal of its LIBOR claims against RBS in Property Alliance Group Ltd v The Royal Bank of Scotland plc, which commenced on 29 January 2018. The case will set an important precedent for disputes between customers and banks where transactions were linked to LIBOR or other similar interest rate benchmarks.

We summarise the key trends in financial services litigation in 2017 in an article written by Sarah Parkes and me for Practical Law Magazine (available here) and highlight those key cases to watch in 2018 in a short briefing.