There are a vast number of individuals and businesses that have potential claims against banks for financial mis-selling. However not all potential claimants have the same rights for example individuals and partnerships can claim for breach of statutory duty whereas companies and LLPs cannot. In any event most claims against financial institutions are made for misrepresentations, negligent advice and negligent miss-statement.

The first step is to attempt to seek redress from the bank through their internal complaints procedure. If the response is not satisfactory then there are two options available. The first is to make a complaint to the Financial Ombudsman Service and the second is to litigate against the bank.

For more information on the Financial Ombudsman Service please see our article which can be found here.

In order to bring a claim against the bank the following must be satisfied.

Duty of care

Each case will turn on its own facts. The bank will have a duty to its customers when selling financial products that when providing advice, to ensure that such advice is full and accurate and complies with the relevant regulatory regime. When the bank is merely providing information the banks have a duty to take reasonable steps not to mislead or give incorrect information. In this regard banks inevitably will raise the argument that they were only providing information and not providing advice – even when “on the ground” that is exactly what they were doing – i.e providing advice.

Breach

Once a duty of care has been established it is then necessary to establish that the duty has been breached. It must be shown that the product that was sold was unsuitable for the customer and the bank should have been aware of its unsuitability. This can be challenging as financial instruments can be complex and may require expert opinion. It is for the claimant to establish why the product should not have been sold to them.

Causation 

Claimants must establish that they have relied on the advice given by the bank and had it not been for their advice they would not have signed up to the financial product.

Loss

Foreseeable loss is recoverable. The difficulty with loss is that some customers may have entered into other transactions as a result of the mis-selling and it may be difficult to prove that these transactions were foreseeable.

How we can help

If you would like to discuss a potential claim, please do not hesitate to contact Resolution/ Litigation team who will be happy to help. We have experience in dealing with both submissions to the Financial Ombudsmen Service and through the courts.