Event Report

Hot on the heels of commercial disputes and international arbitration summits, on  1 December 2021, Legal Business, The Legal 500, GC Magazine and The In-House Lawyer concluded a hat-trick of agenda setting events with the Financial Regulatory and Disputes Summit. Delegates gathered opposite the Supreme Court in Westminster at the Queen Elizabeth II Conference Centre.

The event featured panels moderated by leading lights from elite solicitors firms Boies Schiller Flexner, Norton Rose Fulbright and RPC, top barristers’ chambers Essex Court Chambers, Serle Court, Three Verulam Buildings and One Essex Court, as well as litigation PR specialists Maltin PR. Delegates were treated to a far-reaching exploration of the hottest financial regulatory topics and litigation risks.

Natasha Harrison of Boies Schiller Flexner opened the day’s proceedings in her opening remarks by paying testament to the resilience of both the banking and legal professions. Acknowledging that England and Wales has led the way for remote hearings, she praised the sector’s impressive acceleration in the use of tech. Striking confidence as to the future of London as a global hub of financial disputes, she acknowledged that flexibility will be paramount going forward.

Harrison then moderated the first panel which reflected on the key financial regulatory and disputes trends of 2021. The panel covered issues of limitations, state immunity and sovereign debt, and anti-money laundering, noting the civil and criminal risk for banks. The panel also reflected on the impacts of technology before turning to predict what 2022 has in store. Hot topics tipped for the year to come include misrepresentation claims, securities class actions and collective redress, Libor transition and restructuring and insolvency. An increase in activity around ESG is also on the horizon.

RPC hosted the second discussion of the day, which took deep dive into the issue of banks’ responsibilities in the context of fraudulent payments. RPC’s Jonathan Cary and Jeffery Onions QC of One Essex Court raised attention to the rise in fraudulent payments and sought to identify where the banks’ responsibilities begin and end, giving consideration of the voluntary Contingent Reimbursement Model Code for authorised push payment fraud, the Quincecare duty and the expectations of the Financial Ombudsman Service. The duo noted cases to watch, while acknowledging the court’s reluctance to lay down general rules thus far.

After a short break for coffee and networking, Saima Hanif QC from 3VB led an interactive discussion reviewing FCA activity in 2021. The session unpacked the upper tribunal’s decision in Frensham and its impact on the FCA’s approach to pursuing non-financial misconduct. The panel then turned its attention to the tribunals ‘excoriating’ judgment of the FCA and PRA’s joint investigation in Forsyth – unanimously deeming it ‘a car crash’ for the regulators. Looking to the future and noting a levelling of the regulator and defendant positions, the panel predicted the FCA’s priorities post-pandemic.

The last session before lunch, moderated by Harriet Jones-Fenleigh of Norton Rose Fulbright, focused on the acronym of the hour: ESG. The panel explored what NRF’s Stuart Neely described as a ’smorgasbord’ of ESG risks facing financial institutions. With insight from leading in-house counsel including Jennifer Choi of Standard Chartered Bank, Goldman Sachs’ Daniel Hennis and Ilan Jacobs from Citi, the session highlighted regulators’ priorities as well as the areas of litigation risk for financial institutions, while Neely warned, that ‘much of which is still being cooked and brought to the table’.

After lunch, Jeffrey Gruder QC and Jeremy Brier, both of Essex Court Chambers, presented an informative discussion surrounding the landmark ruling on Covid-19 business interruption case (FCA v Arch Insurance.) Having acted for Arch Insurance in both instances, Brier provided his insight into the High Court and Supreme Court judgments before passing over to Gruder QC, who is acting for Corbin & King – owner of London restaurants including The Wolseley and The Delaunay – in an upcoming related claim against Axa Insurance, to speak on the future impact. Gruder QC explored several issues yet to be addressed including what constitutes separate claims for the purpose of limits to claim value and treatment of furlough payments in calculating quantum.

The heavyweight analysis of case law continued in the following session, with Anthony de Garr Robinson QC of One Essex Court and Julian Copeman of Herbert Smith Freehills discussing the rule on reflective loss – a critical issue concerning if shareholders can bring action for losses suffered by the companies they own, which often appears if an injured company cannot afford to litigate itself. Focusing on the Marex v Sevilleja case heard by the Supreme Court, and also of relevance to the Topping Chance Development v CCIF CPA Ltd Hong Kong case and Madoff-related Privy Council case Primeo v Bank of Bermuda, the speakers expressed hope that a more commercially practical approach was being taken, but flagged up interesting points of interplay when different common law jurisdictions take different stances on this rule.

After a final break, Maltin PR hosted the penultimate session of the day focused on managing reputations through financial litigation. The far-reaching discussion saw former BBC News legal correspondent Clive Coleman, now of Maltin PR, contributing practical advice as to how litigants can work best with the pressures and intensity of newsrooms. Complementing this with the legal perspective was The Legal 500 recognised leading reputation management lawyer Jo Sanders from Withers while chief executive of Maltin PR, Tim Maltin, provided practical advice for litigators in managing press around disputes and fielded questions from the audience on embargoed content and the impact of social media.

Concluding the day’s proceedings, Professor Suzanne Rab of Serle Court delivered a heavyweight presentation covering the competition and regulatory risks associated with the transition away from Libor. The informative session brought delegates up to date with the regulatory and legal scrutiny of Libor and interrogated future competition issues. She drew on shocking – and in some cases, humorous – real-life trading floor examples of previously relied upon evidence and information exchange and concluded with her informed predictions of the future compliance and litigation risks in this area.

Legal Business, The Legal 500, GC Magazine and The In-House Lawyer would like to thank all those who attended this in-person event, and all those sponsors and panellists who contributed to an engaging day of discussions.

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