In CGL Group Limited v Royal Bank of Scotland [2016] EWHC 281 (QB), a swap misselling claim, HHJ Bird QC (sitting in the London Mercantile Court) refused the Claimant permission to amend to add a new claim based upon allegedly negligent performance of obligations allegedly owed to CGL under the Interest Rate Hedging Product Review conducted by RBS pursuant to an agreement with the Financial Services Authority. Such a claim is commonly referred to as a “Suremime claim” following the decision of HHJ Havelock-Allan QC in Suremime Ltd v Barclays Bank plc [2015] EWHC 2277 (QB).

HHJ Bird QC held that no duty of care could arguably be said to arise, particularly in circumstances where there was express provision in the agreement between RBS and the FSA that a non-party would have no right to enforce the agreement, whether in contract “or otherwise”. The judge justified his departure from the Suremime decision on the basis that HHJ Havelock-Allan QC did not have the benefit of the full factual background before him.  However, if it were necessary to decide whether Suremime should be followed, the judge stated that he would conclude that the decision was wrong and should not be followed.

The remainder of CGL’s claim was struck out on limitation grounds.

Tamara Oppenheimer, instructed by Felicity Ewing of Dentons, appeared for RBS.

To view the judgment in full, please click here.