CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
FINANCIAL LIST
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR AMCORE BANK NA AND OTHERS (Incorporated under the laws of the United States of America) |
Claimants |
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(1) BARCLAYS BANK PLC (2) BANK OF SCOTLAND PLC (3) BBA TRENT LIMITED (sued in its own right and as a representative of the British Bankers' Association) (4) BBA ENTERPRISES LIMITED (sued in its own right and as a representative of the British Bankers' Association) (5) COÖPERATIEVE RABOBANK UA (6) DEUTSCHE BANK AG (7) LLOYDS BANKING GROUP PLC (8) LLOYDS BANK PLC (9) NATWEST MARKETS PLC (10) NATWEST GROUP PLC (11) UBS AG |
Defendants |
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Adrian Beltrami KC (instructed by Clifford Chance LLP) for the First Defendant
Richard Handyside KC and Christopher Brown (instructed by Hogan Lovells International LLP) for the Second, Seventh and Eighth Defendants
Duncan McCombe (instructed by Macfarlanes LLP) for the Third and Fourth Defendants
Conall Patton KC and Emma Jones (instructed by Milbank LLP) for the Fifth Defendant
Nehali Shah (instructed by Slaughter and May LLP) for the Sixth Defendant
Laurie Brock (instructed by Clifford Chance LLP) for the Ninth and Tenth Defendants
Paul Luckhurst (instructed by Gibson Dunn & Crutcher LLP) for the Eleventh Defendant
Hearing dates: 26 and 27 November 2024
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Crown Copyright ©
Sir Julian Flaux C:
Introduction
Factual and procedural background
"It does appear to me, looking at the evidence of Ms Vernon [the solicitor for the claimant], that though some work has been done since the end of July 2020, not a great deal has been done to progress the case. I have gained the impression that more needs to be done for this case to progress. If it is a matter of resourcing, then it seems to me that more resources need to be devoted to the case. I accept that it is a very large case, but that is in part because the Claimant has chosen to bring proceedings on behalf of such a large number of Claimants. The Claimant necessarily has to accept that it will devote sufficient resources to the case to enable it to proceed properly. If one chooses to bring proceedings in this jurisdiction, one must abide by the rules of the jurisdiction. Part of the overriding objective is for cases to be conducted as expeditiously as possible, conforming to the other requirements of justice."
"The FDIC-R will rely on, inter alia, the difference between: (i) the Bank Defendants' (and/or the other Panel Banks') USD LIBOR submissions during the Suppression Period on the one hand; and (ii) on the other hand the actual costs of borrowing to the Bank Defendants (and/or the other Panel Banks) during the Suppression Period by reference to the costs of funds in transactions the Bank Defendants (and/or the other Panel Banks) in fact entered into and/or expert evidence as to the Bank Defendants' (and/or the other Panel Banks') actual (or likely) costs of borrowing in the interbank market (or markets) for the borrowing and lending of USD."
This has been deleted and the claimant has substituted a reference to Dr Friederiszick's methodology statement dated 28 June 2024.
"A simplified form of the USD LIBOR-submission regression analysis could in principle be conducted using only the disclosure already provided of direct comparator transaction types and… covering a shorter "clean" period (August 2004 to December 2012) than the one for which I requested data. However, the relevant question for me as an independent expert seeking to answer the questions in the most appropriate way is not whether the statistical technique I have proposed can in principle be conducted in a less robust fashion using the existing data, but on whether the additional data requested will render the approach materially more robust and reliable."
Summary of submissions
"even though the Tribunal cannot at this stage say with confidence on the facts of the case that the disclosure sought will be relevant and useful it is possible in the abstract to form a view that as a category it is capable of being relevant and useful and that is sufficient to justify ordering disclosure."
"LIBOR submissions should be determined based upon the following hierarchy of transaction types. Submitters should use their experience of the inter-bank deposit market and its relationships with other markets to develop their LIBOR submission. Greatest emphasis should be placed on transactions undertaken by the contributing bank.
1 Contributing banks' transactions in:
... the unsecured inter-bank deposit market;
... other unsecured deposit markets, including but not limited to, certificates of deposit and commercial paper; and
... other related markets, including but not limited to, overnight index swaps, repurchase agreements, foreign exchange forwards, interest rate futures and options and central bank operations."
"…the Wheatley Review recommends that, in advance of the agreement of a more detailed code of conduct, LIBOR submitters should refer to the suggested submission guidelines set out in Box 4.B in the determination of their LIBOR submissions."
"We recognise of course that these are very large damages claims. However, any estimate will still be reached through averages, extrapolations and aggregates. It does not mean that every logical avenue that might be relevant can be explored, or that all data which is arguably relevant must be provided. As observed by Birss J in Vodafone v Infineon Technologies AG [2017] EWHC 1383 (Ch), at [31]: "while of course more [disclosure] can be better …it is relevant to ask how much more would it be and how much better would it make the result." The decision as to what disclosure to order is appropriate is informed by the views of the economic experts but it is not determined by what data they would like to have or what method they would like to use. It is for the Tribunal to decide."
"It is not therefore simply a question of relevance, as some of the skeleton arguments we received seemed to suggest. Disclosure will only be ordered in relation to a specific category of documents if the Tribunal is satisfied the documents sought are relevant and that disclosure would be necessary and proportionate. The Tribunal will not make an order merely because it determines that the documents are relevant to the issues."
"We consider that sufficient data has already been assembled through the very considerable efforts of all parties to enable pass-on properly and fairly to be tried without the additional data from World Remit or Pets at Home. Whilst we do not doubt that this additional data is data that would be of material benefit to at least some of the experts retained by the parties, we do not consider that it is so material as to oblige the Retailer Claimants to continue to seek to provide this data. The purpose of the exercise has never been either to conduct a sampling exercise with the necessary volume of participants that entails, or to provide complete coverage of all sectors which may be relevant to the claim. All of the parties have more than enough to do in order to prepared for Trial 2, and we consider that the provision of additional data from World Remit and Pets at Home now constitutes a distraction. Furthermore, there is real doubt as to whether the data could be provided in time to enable its effective use by the experts, at least not without disrupting the timetable to trial in a significant way."
"expert evidence and particularity in the statement of case serve two different functions. The function of the expert evidence is not to advance a claimant's case. The function of the expert evidence is to provide opinion evidence, agreeing or disagreeing with allegations which are contained in the claimant's case. It is important that the distinction between the two is maintained."
Discussion