Court of Appeal allows LIBOR claims to proceed to trial

In Graiseley Properties Ltd & Ors v Barclays Bank plc and Deutsche Bank AG & Ors v Unitech Global Ltd and Unitech Ltd [2013] EWCA Civ 1372, the Court of Appeal allowed the borrowers in these two cases against LIBOR panel banks to amend their pleadings to include allegations of pre-contractual misrepresentation relating to LIBOR manipulation, with the court ruling that the amendments were at least properly arguable.

Graiseley Properties Ltd brought a mis-selling claim against Barclays Bank in respect of one interest rate swap and one structured collar, sold by Barclays Bank in 2007 and 2008 respectively as a condition of borrowing totalling £70m advanced to Graiseley by the bank. The interest rates under the swaps were referable to Sterling LIBOR. Following the findings against Barclays by various regulatory authorities in June 2012 in respect of Barclays’ role as a LIBOR submitting panel bank, Graiseley applied to amend its particulars to include allegations of fraudulent misrepresentation. In October 2012, Mr Justice Flaux gave Graiseley permission to amend its case to make claims related to LIBOR.

The Unitech action comprises two claims: one by Deutsche Bank (DB) and other lenders against Unitech Global Ltd (UGL) and Unitech Ltd (as guarantor) from a transaction for a syndicated loan facility of $150m (£110m) made to UGL in 2007 pursuant to a credit agreement; the other by DB alone against Unitech Ltd (again, as guarantor) relating to an interest rate swap entered into by DB and UGL as a condition of the credit agreement. The interest rates under the contracts were set by reference to USD LIBOR. The Unitech parties sought to introduce further defences and counterclaims that arose from recent publicity suggesting that DB was involved in the manipulation of the LIBOR rate during a period that included the dates on which both the credit agreement and the swap were entered into…

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