THE BLOG

Banks Aren't Over the Worst of It

14/01/2014 10:51 GMT | Updated 15/03/2014 09:59 GMT

It is a good bet that the year ahead is to be incredibly interesting for those with a sharp eye on litigation - and cases against banks will be a key focus.

Experts in the legal world are already predicting there will be a slew of notable big cases going through the High Court in 2014.

Figures showed that last year, there was a rise in the number of claims against financial services companies.

Of 201 High Court cases in 2013, 112 were against banks and other such organisations. This was a rise from 65 the previous 12 months.

Indeed, the UK's top banks, including RBS and Barclays, accounted for 47 per cent of litigation against FTSE100 constituents.

The data - from Thomson Reuters Lawtel - showed what is termed to be a "second spike" of this type of case, stemming from the economic downturn and working within the six year cut off limit for cases to be brought.

There has been some analysis which says this signals the end of the worst for the banks and other organisations in the sector.

But I would argue this view seems incredibly optimistic, based on what is in the pipeline and from information around the legal world.

Banks have been having bad years since Northern Rock in 2008.

I really can't see that 2014 is going to be the light at the end of the tunnel as many predict.

Last year saw further problems with the RBS v Highland case, where an RBS employee was found to have misled the Court, resulting in probably the first decision before the English Courts where a UK bank had a judgment overturned as it had been obtained by the bank's fraud.

This year will see further shareholder claims, interest rate swap claims, the continuing issue on PPI (there are reports that a record 320,000 mis-selling cases will be resolved this year), Libor and CDO cases. A case involving an investigation into a bank branch outside of London will also bring further embarrassment from the disclosure.

The RBS and potential Lloyds TSB cases claim there was a disregard for their own self-preservation over the rights of investors. Together the claims allege (we must remember these have not been heard as yet) and cynical and unpleasant greed which confirms the public long held views of certain banks and bankers.

Regarding RBS, the year is not yet a month old and there is already news that the two shareholder groups who are suing the bank are now being joined by a third.

As reported, 8,500 small shareholders are joining two other actions in taking on RBS with claims adding up to £4billion over alleged misleading details contained in the 2008 share sale.

The big question that is often asked is whether regulators should have tougher powers and if so, would this decrease litigation.

The Financial Conduct Authority has been criticised over interest rate swaps, among other things. There has been an almost constant call for the FCA to be more like America's SEC, with tougher powers beyond the limitations it currently has.

But in terms of the present situation, the damage is done.

The separation of investment and high street banking will have an effect but there is little now that can stop the litigation that is in the pipeline, and it needs to be a cleansing and cathartic process for the banks.

Sadly, I predict in most cases, they will fight tooth and nail and not do the right thing.

For too long, banks have been able to adopt a scorched earth policy on litigation. They can fill the court room with expensive teams of lawyers, often massively outgunning the opposition.

But changes in how cases can be funded, including litigation funding, have worked to redress the balance on this.

The introduction of The Jackson Reforms has also put a strong onus on costs and time. How much effect that will have on banks remains to be seen, and it is clear to me they can still use the process stemming from Jackson in a tactical way to put off smaller rivals by lodging big numbers.

In many of these cases, those wronged have been small business holders or families who have seen savings turn to dust.

That is the key to much of this, as it resonates in the public conscience. The success or otherwise of some of these more high profile case will have a strong bearing on how much similar litigation comes on stream in the future.

Each case is different, as we know, but the fact they involve the wider public and not just large-scale institutions will of course bring further publicity and raised awareness.

The public in the UK are usually keen to see that the underdog wins the day.

If possible the banks' reputations will be tarnished further. It means surely that they have to distance themselves from the past and show - as well as say - that they have cleaned up their acts.

Nick Rowles-Davies is consultant to litigation funding company Vannin Capital.