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Financial Services Winter Update

Please join members of our financial services team where we will discuss some of the latest issues in the industry. Private Equity disputes – Clawing their way back? The post-Covid economic recovery has seen high levels of M & A …

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Interim injunction against Bitcoin discharged and damages considered an adequate remedy

In a recent High Court decision, Toma v Murray, Robin Vos sitting as Deputy High Court Judge, declined to a continue a without-notice interim injunction which restrained the Defendant from dealing with Bitcoin held in a coin deposit account.  Vos held that damages would be an adequate remedy in this instance.The Claimants sold Bitcoin through an account on the Finnish platform LocalBitcoins.com. However, the payment they received was reversed, leaving the Claimants without the Bitcoin or their payment. The Defendant controlled the LocalBitcoins.com accounts used to make and withdraw the payments, and which continued to hold the Bitcoin. The Defendant did not go as far as to admit that there was a fraud, though he allowed the Court to proceed on the basis that a fraud had taken place, and asserted that the account had been hacked.The Claimants initially obtained a without notice interim injunction. LocalBitcoins also froze the account, though they said that in absence of a court order they would release the Bitcoins to the Defendant.On reviewing the injunction and deciding whether it should be upheld, Vos decided that although the Claimants’  made a proprietary tracing claim, they were ultimately seeking the value of the Bitcoin held in the deposit account and therefore the claim could be satisfied in monetary terms.He held that the injunction should not be upheld and the case is set to continue to determine whether or not there was any fraud on the part of the Defendant, a matter which could not be dealt with at an interim hearing.    This is an interesting decision as it considers Bitcoin in relation to its value in monetary terms over its proprietary value. The Court distinguished it from AA v Persons Unknown [2019], the precedent for Bitcoin interim claims, as the Defendant was identified and had shown he held a significant unencumbered asset and there was no reason to believe he would not be able to meet any award against him. This was balanced against the fact that the Claimants admitted that they would have difficult in satisfying across undertaking of damages. On balance the Court considered that this decision left the Claimants with a remedy and did not place an disproportionate risk of loss on the Defendant.Some consideration was given to the volatility of the price of Bitcoin and the impact this may have on both parties. Though the Court focused on the fact that a price and value was given to the Bitcoin at the time of sale and the claim therefore was considered to be for the price paid. A condition was included in the Order to allow the Defendant to sell the Bitcoin only with the consent of the Claimant as a means of neutralising this risk. It shows once again that the court’s are having to approach digital asset cases innovatively. It will be interesting to see if any concession is given to the change in value of Bitcoin in the time before final judgment.Toma and another v Murray [2020] EWHC 2295 (Ch) (29 July 2020) (Robin Vos, sitting as Deputy High Court Judge).

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Is it a Fair CoP?

Confirmation of Payee (CoP) checks were introduced on 30 June 2020. The system is a new way for banks to check the account details of a payee (that is the recipient – whether a person or a business – of a bank transfer) before the payment is sent. This helps to avoid a payment being sent to the wrong account, whether as a result of a mistake or a fraud.The CoP mechanism was originally due to be introduced in late March 2020, but it was postponed due to COVID-19. The six principal banking groups in the UK were all required to implement the new protection by this date, though some smaller banks and building societies may also choose to introduce it.Previously when processing a payment mandate, only the payee account number and sort code were checked. This left an opening for fraudsters to substitute their own bank account details for those of the intended recipient of the funds as nobody would check whether the payee’s name matched the name on the account to which the funds were to be transferred. However, from 30 June 2020, when a customer sets up a new payee or changes the payee details on an existing payment mandate, a CoP check will be run to confirm whether the payee’s name is in fact the same as that of the accountholder.There are three possible responses from a CoP check. First, the payee bank may confirm an exact match between the payee name and the name of the accountholder in which case the payment will be processed as planned. Alternatively, there may be a partial match. The customer making the payment will then be shown the name of the accountholder in order to verify whether this is in fact the correct payee. Lastly, there may be no match, in which case the customer is asked to check the payee name and account details before proceeding with the payment.The new system is intended to reduce the risk of authorised push payment (APP) fraud, as well as innocent mistakes made by customers. APP fraud happens when fraudsters deceive individuals (either consumers or employees of a business) into making a payment to the fraudster’s bank account. An example of this would be sending an invoice that looks very similar to one which the individual is expecting, such as an invoice from a supplier, but which includes the fraudster’s own account details. The individual arranges payment of the invoice but has unknowingly paid the fraudster instead of the legitimate recipient.While it is expected that the CoP checks will reduce instances of fraud, there are limitations to the new system. CoP checks can only be carried out where both the paying and payee banks have implemented the mechanism and, at least for the time being, only where the payments are being made by the Faster Payments System or by CHAPS. CoP checks also cannot be carried out for international payments. Fraudsters are likely, therefore, to adapt their approach, for example, by opening accounts with banks which do not have the CoP mechanism in place.The existence of the partial match response may also lead to fraudsters opening accounts using names which are very similar to the names given on the fake invoices in the hope that the bank customer won’t notice the slight discrepancies or that they will assume it’s a mistake on the invoice. Bank customers should be check partial match responses very carefully to avoid this risk, and if necessary, contact the payee to confirm the account details. Where contacting the payee, make sure to use a different contact method than the one used to send the invoice, for example, by calling a supplier instead of replying to the email attaching the invoice.Businesses should also take appropriate steps to limit the risk of customers not getting an exact match on a CoP check when paying an invoice, for example, by ensuring that the payee name listed on their invoices is an exact match for the name on the bank account.

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The BoE encourages market participants to move from LIBOR to risk-free rates with new policies for the treatment of LIBOR-linked collateral

The Bank of England (BoE) provides liquidity to market participants and lends to firms against a wide set of eligible collateral. To encourage market participants to move away from LIBOR, the BoE has announced new policies for the treatment of LIBOR-linked collateral in the BoE’s Sterling Monetary Framework lending operations. Specifically:From 1 April 2021, the BoE will apply increasing haircuts on all LIBOR-linked collateral maturing after 31 December 2021. This means that the value of the LIBOR-linked collateral against which the BoE is lending will be reduced by an increasing percentage until the end of 2021. Haircuts are scheduled to reach 100% by 31 December 2021.From 1 April 2021, any LIBOR-linked collateral issued on or after that date and maturing after 31 December 2021 will be ineligible for use in the Sterling Monetary Framework.These milestones for LIBOR-linked collateral have recently been revised to account for the temporary disruption caused by the Covid-19 pandemic and resulting changes to the interim milestones announced by the Working Group on Sterling Risk Free Rate Transition (the Working Group) on 29 April 2020. In particular, the Working Group has announced that all new issuance of sterling LIBOR-referencing loan products that expire after the end of 2021 should cease by the end of Q1 2021 (previously end of Q3 2020).Although the impact of the Covid-19 pandemic has delayed certain milestones, the date from which the BoE intends to apply a 100% haircut on LIBOR-linked collateral (i.e. implying effective ineligibility) remains 31 December 2021. This shows that the central assumption remains that firms cannot rely on LIBOR being published after the end of 2021.

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UK Government to enhance FCA powers to facilitate LIBOR transition

The UK Government announced on 23 June 2020 that it intends to introduce new legislation to give the UK Financial Conduct Authority (FCA) enhanced powers in circumstances where (i) LIBOR ceases to be representative of the market and (ii) its representativeness cannot and will not be restored. This is intended to solve the problem of “tough legacy” contracts by giving the FCA the power to protect consumers and market integrity in relation to those contracts (which the FCA envisage will be a “narrow band”). “Tough legacy” contracts in the context of LIBOR transition are existing contracts referencing LIBOR which extend beyond 2021 and cannot realistically be renegotiated to use a different benchmark rate or to add new robust fallback provisions. This announcement from the UK Government follows the Paper on the identification of Tough Legacy issues published at the end of May by the Working Group on Sterling Risk-Free Reference Rates (the Consultation Paper) which considered “tough legacy” issues across asset classes in the UK and concluded that there is a case for action to address these exposures.The proposed legislation would:Grant the FCA powers to require an administrator of LIBOR to alter its methodology in calculating the benchmark if LIBOR ceases to be representative of the market and its representativeness will not be restored (which is expected to occur when panel banks are no longer required to make submissions after 1 January 2022). This would not restore the benchmark’s representativeness, but could sustain publication of a robust rate until its cessation; andAllow the FCA to permit the continued use of LIBOR for a narrow category of “tough” legacy contracts where it considers this appropriate.The UK Government intends to introduce those proposed new powers in the forthcoming Financial Services Bill.This progress towards solving the problem of “tough legacy” contracts is welcome. However, of itself this proposed legislation does not remedy the current inherent uncertainty parties face. For example:It is not entirely clear what “tough legacy” contracts are. The Consultation Paper refers to “those contracts that cannot be dealt with in any other way” apart from continuing to reference LIBOR. It is unclear whether, for example, a contract where the parties simply cannot reach commercial agreement on the replacement for LIBOR would be considered a “tough legacy” contract. It may be that the FCA will have powers to adjudicate whether a particular legacy contract is “tough”, or alternatively it might be that these proposed powers will simply be a default position for any legacy contract continuing to refer to LIBOR. To some extent this is understandable – the FCA is unlikely to risk discouraging participants from amending their existing contracts by providing a “default” fallback. Nevertheless, it remains unclear when these powers will be triggered and to which contracts they will apply.In any event, even if “tough” legacy contracts can be identified, the other problem is that those contracts (and how they operate) still remains inherently uncertain post-31 December 2021 because there is no guidance yet and seems unlikely to be for some time as to what new methodology will be used to calculate “LIBOR” in those circumstances. Also the FCA admits that it may well not be able to create any new methodology for some LIBOR tenors/ currencies.The FCA are proposing yet more wide ranging consultations and discussions with market participants to establish how best to alter the LIBOR methodology post-31 December 2021. It will likely be many months before the true picture of what will be available post-2021 becomes clear. This makes it more difficult for parties to consider their options for legacy contracts between now and the end of 2021, although an optimistic view suggests that the “cliff edge” of 31 December 2021 may no longer be so steep if the FCA intends to provide some support on the other side. Unless and until clearer guidance becomes available, it is impossible to tell to what extent these powers will assist parties to resolve disagreements about how to deal with contracts referencing LIBOR extending beyond 2021. The announcement from the UK Government can be found here: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-06-23/HCWS307/. In connection with the announcement, the FCA has also issued the following statement: https://www.fca.org.uk/markets/transition-libor/benchmarks-regulation-proposed-new-powers.

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Banks’ refusal to reimburse victims of fraud

In May 2019, many of the UK’s largest banks and building societies signed up to a voluntary code requiring them to reimburse customers who are victims of fraud except where the customers have been grossly negligent.However, according to the Payment Systems Regulator (PSR), it now appears that many of the banks are taking a very restrictive approach to their obligation to reimburse defrauded customers. From the PSR’s data, it appears that the most generous bank has provided full refunds to 6% of its defrauded customers and partial refunds to 93% of them (rejecting 1% of claims). Whereas the least generous bank has only fully refunded 1% of its customers and given a partial refund to 3% of them, meaning that it has rejected 96% of the claims.This is disappointing news at a time when authorised push payment fraud is on the rise. It also flies in the face of the obligation which the banks themselves signed up to last year. As a result, the PSR is calling for reform of the code. This call for reform also comes on the heels of comments made by the Treasury Committee in November 2019 expressing their view that the code should be made compulsory for all banks and should have retrospective effect back to 2016 meaning that customers could claim a refund for frauds which were carried out up to four years ago.

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Robin Henry quoted in Independent on publication of RBS GRG report

Robin Henry, a partner at law firm Collyer Bristow, said the most striking conclusion in the report was that inappropriate behaviour was systematic.”Such behaviour, contrary to the law, regulations or RBS’ own policies, was not the result of rogue employees but something that GRG management was or should have been aware of,” Mr Henry said.”There was an intentional and coordinated strategy to focus on GRG’s commercial objectives rather than on the interests of its customers.”He also criticised the FCA for not carrying out the second phase of its investigation.He said: “A[nother] major failing revealed by the report’s publication is that the FCA has not followed up on its conclusions since it was completed in September 2016. “The report was supposed to be Phase 1 of the investigation into GRG, and Phase 2 was for the FCA to consider the root cause of the problems and whether RBS management knew or sanctioned GRG’s misconduct.”Nearly 18 months later, the FCA has provided no answers to these questions, and this is something it must now address as a matter of urgency.”

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Currency trader challenges FCA ban over LIBOR conduct

UBS forex trader blames senior managers at the bank for mandating LIBOR misconduct

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Wealth Manager held in breach of contract

Full Circle Asset Management has been held to have been in breach of its contractual terms with an investor by allowing the risk profile to exceed what had been agreed and by failing to operate the agreed stop-loss policy.

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Bank fraud compensation scheme floated

Concerns about authorised “push” payment frauds have prompted the Payment Services Regulator to suggest that a compensation scheme could be put in place next year. 

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