On 13 November 2015, Birss J (sitting in the Chancery Division of the High Court) granted permission for the Property Alliance Group to amend its claims against RBS in two important respects. The first amendment involved the pleading of additional breaches of duty by RBS in relation to its sale of a number of interest rate swaps. This amendment followed the decision of Mr Tim Kerr QC (sitting as a Deputy Judge of the High Court) in Crestsign v National Westminster Bank  2 All E.R. (Comm) 133. The second amendment involved the pleading of a case in fraudulent misrepresentation based on RBS’s awareness of, and participation in, the manipulation of LIBOR benchmark rates. RBS opposed the LIBOR-related amendments.
Having referred to various well-known guidelines and authorities on the pleading of fraud, Birss J observed that “the court’s approach is not intended to stop soundly based allegations of fraud or dishonesty from being made. It is intended to make sure that improper and unfounded assertions are not permitted and to make sure that the party against whom the allegation is made knows the case they have to meet.” He went on to say that, given the way in which the bank had presented its case in the proceedings until recently, the contents of its disclosure were “striking” and that “the material relied on by PAG and set out in the Amended Particulars of Claim and its schedule provides ample prima facie support for an inference of fraud and dishonesty at the highest levels of RBS.”
Birss J also granted PAG’s related application for specific disclosure of inter alia minutes and papers of the RBS Board of Directors as well as communications between RBS and the Bank of England.
The decision follows a number of earlier judgments in the same case dealing with disclosure and privilege, including:  EWHC 321 (Ch);  EWHC 1557 (Ch); and  EWHC 3187 (Ch).
The trial is due to start in the summer of 2016 and is listed for 8-10 weeks.
Tim Lord QC and Kyle Lawson of Brick Court Chambers appeared for PAG, instructed by Cooke Young & Keidan.