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Quincecare and the question of government liability where there has been Bounce Back Loan fraud
Two recent circuit commercial court decisions have considered the scope of a Payment Service Provider’s duty of care to its customer when executing payment instructions (Quincecare duty) in the contexts of identity fraud: Hamblin v World First Limited [2020] EWHC 2383 (Comm) and authorised push payment fraud: Philipp v Barclays Bank UK Plc [2021] EWHC 10 (Comm). This article speculates in the light of these two decisions whether, where scheme funds lent under the Coronavirus Bounce Back Loan Scheme have been misapplied, the British Business Bank could escape liability under the Scheme guarantee on the grounds that the lender has breached its Quincecare duty.
13 June 2024Parent companies’ liability in tort for the acts of their subsidiaries
In this article the authors consider a parent bank’s liability for the torts of its subsidiary in light of the Supreme Court decision in Okpabi v Royal Dutch Shell [2021] UKSC 3.
13 June 2024Financial collateral and Brexit: a comparative perspective
The EU directive on financial collateral (EU Directive 2002/47/EC) (Directive), as implemented in the UK remains (with amendments) on the statute book and has not been directly impacted in any meaningful sense by Brexit. However, given the latitude inherent in the Directive, a marginally fractured legislative landscape has resulted across the member states.
13 June 2024Intermediated securities in a securities class action context
The majority of investors in the UK hold their interests through an intermediated chain of securities. The relationships between the investors in the chain are governed by the contracts they have entered into, and the system is largely operated on a “no look through” basis, meaning investors only have rights against their own counterparties. The Law Commission has considered whether to reform the law in this area, in order to give greater rights to ultimate investors. This article considers the impact of any such reform in a securities class action context.
13 June 2024A new Consumer Duty in financial services: a significant change, or more of the same?
The FCA, after prompting by Parliament, is pressing ahead with its proposals for a new consumer duty of care like approach in financial services, albeit in a way that does not in fact impose a duty of care. Instead, changes to the existing Principles of Business are being suggested, which will sit at the head of a pyramid of measures designed to bring about change. This article considers the likelihood that change will in fact be achieved.
13 June 2024Restructuring debt in the COVID-19 pandemic: class composition in creditors’ schemes
In this article the authors consider recent developments in relation to class composition in creditors’ schemes. With reference in particular to Re Codere Finance 2 (UK) Limited [2020] EWHC 2441 (Ch), they consider whether benefits conferred “outside” the scheme in lock-up agreements may fracture a class of creditors, and the consequences for companies seeking to restructure debt. They also consider whether the recent introduction of Pt 26A restructuring plans may change the focus of class composition analysis going forward.
13 June 2024The road to Banking Union
Bail-in is at the heart of the post-crisis reform in dealing with failing banks. But in the euro area bail-in must pass a public interest test before it can be used, and bail-in has become the exception not the norm. The norm remains “winding up of the entity under normal insolvency proceedings”. The public interest test should be reversed. The use of bail-in to achieve orderly liquidation under a solvent wind-down strategy should serve as the presumptive path for handling banks that are deemed to be “failing or likely to fail”. Together with the backstop from the European Stability Mechanism (ESM) for the Single Resolution Fund (SRF), the reversal of the public interest test will open the door to the creation of the Single Deposit Guarantee Scheme (SDGS) and to the completion of Banking Union.
13 June 2024Uncertain times: COVID-19 and the use of “business days” to measure time under finance agreements
Over the past twelve months, governments have implemented various measures that have created uncertainty around the meaning of the term “business day”. This is further complicated by the historic English law approach, which emphasises the predeterminable nature of a “business day” and discourages investigation into the particular facts of the case. This stands in tension with definitions (including the LMA standard definition) which focus upon banks actually being open for business on a given day. This article considers how, in these circumstances, parties may be able to increase certainty in relation to the way that time is calculated under finance agreements.
13 June 2024The practical challenges of maintaining a European loan book post-Brexit
The question of how UK-based lenders can continue to make funds available to European borrowers remains a key one for market participants. In this article, the authors explore some of the key practical challenges and questions now facing UK-based lenders.
13 June 2024The new pre-pack regulations and the impact on secured lenders
If secured lenders (who fall within the definition of connected persons) and their advisers engage the evaluator prior to the commencement of administration and ensure open communication lines among themselves, the evaluator and the would-be administrator then the goal of increasing transparency in the pre-pack process would likely be advanced in a manner consistent with the efficient execution of a pre-pack sale.
13 June 2024
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