Who can join the action?
What is the cost to me?
The legal process
Q: How do I know if I have suffered a loss which is relevant to the RGL action?
A: That will become evident once our legal team has begun their detailed legal analysis. If your business has, or had, any form of Tailored Business Loan (TBL) with Clydesdale Bank or Yorkshire Bank, then it is highly likely that you have a potential claim, and it would be worth you registering to enable our legal team to analyse further. Types of Tailored Business Loan include the following:
- Discounted Fixed Rate Range Loan
- Fixed Trigger Rate Loan
- Flexible Drawdown Participating Fixed Rate Loan
- Modified Participating Fixed Rate Loan
- Participating Fixed Rate Loan
- Range Rate Loan
- Convertible Floating Rate Loan
- Discounted Fixed Rate Loan
- Fixed Rate Flexible Maturity Loan
- Flexible Drawdown Fixed Rate Loan
- Ratchet Rate Loan
- Capped Rate Loan
- Small Fixed Rate Loan
- Fixed Rate Business Loan
If you think you may have, or may have had, a TBL, but you are not certain, please contact Katie Halford on 0203 603 8597 or firstname.lastname@example.org, for further assistance.
Q: As a potential claimant, what type of losses might I have suffered
A: Potential losses will become clearer as we obtain information from those registrants who sign the Claims Management Agreement (CMA), and we begin the more detailed legal analysis, but we do know that many people have lost out financially. Each individual claim will be different. We can begin the process of gathering relevant information as soon as you have signed the CMA. As to the value of any potential claim you may have, that will be analysed and evaluated by RGL’s legal team at zero cost and zero risk to you.
In addition to claiming losses which you or your business suffered directly as a result of your TBL(s), our legal action against the Bank will also include claims for consequential losses. Consequential losses can be extremely varied and will be unique to each claim, generally also involving a degree of complexity in establishing what losses have been suffered and by whom. Consequential losses can, of course, be significant, sometimes representing a sum vastly greater than the direct losses. Given the evidence required to establish consequential losses and their potential value, it is worth spending some time making some notes with estimated values, and then gathering together any documents (letters, emails, texts, handwritten notes of conversations or phone calls) that you consider support the type of losses to be claimed, and the relevant loss values. Here are just a few examples of both direct and consequential losses worth considering:
- Paid break costs;
- Additional loan interest paid;
- Increased bank fees and charges paid;
- Professional fees needlessly paid;
- Loss of business earnings;
- Loss of capital asset values;
- Loss of investment or business opportunities;
- Crystallisation of personal guarantees.
Q: Should my business partner also register with you?
A: Yes please.
Q: My business partner/spouse/family member/friend signed a Personal Guarantee, should they also register with you?
A: Yes please.
Q: Should my fellow directors, ex-directors, shareholders, or ex-shareholders register with you separately?
A: It is not essential in all cases, but we would recommend that they do, especially if they suffered any sort of personal loss that they believe was caused by the banks.
Q: I have little or no documentation from the relevant period. Can I still register with RGL Management?
A: Yes. Although each claimant will have to provide whatever documents he or she possesses or has access to, RGL has access to a wealth of documents from the relevant period that will be relevant to many claims. We fully expect that people will have varying levels of document availability. All that is required by the Claims Management Agreement (CMA) is that you provide whatever you can. The legal team will consider all potential claims, at nil cost to each claimant. By signing the CMA to enable us to conduct this analysis, you would not be exposing yourself to any risk. If you have no documentation, please contact Katie Halford on 0203 603 8597 or email@example.com to discuss further.
Q: I have already received some compensation from the bank. Can I still be involved in your action?
A: The simple answer is yes, you should register. This will enable us to request information from you which will enable our experts to review the settlement you have received to date. RGL, working with our legal team, has identified arguments and legal causes of action that are likely to mean that we will be able to pursue further redress, including consequential losses, on your behalf.
Q: Can I still register with RGL Management and participate if my company has been dissolved
A: Yes, our team will guide you through the necessary process at the appropriate time.
Q: I have heard that it may not be possible for me to bring a claim against Clydesdale Bank or Yorkshire Bank because of limitation difficulties. Is this true?
A: This very much depends on the facts of your case, but RGL Management, working with our legal team, has identified arguments and causes of action that are likely to be less susceptible to limitation defences. You should register with RGL Management so that your position can be analysed.
Q: I have a friend whose business was damaged by Clydesdale Bank or Yorkshire Bank. Is it too late for them to join the RGL Management group action?
A: No. If you know anyone else whose business was damaged by one of these banks, please tell them about sueClydesdale.com, and ask them to go to our registration page. Once they have registered, we will contact them to get further details about their claim.
Q: What about the FCA IRHP redress scheme?
A: The FCA IRHP redress scheme was based on a business’ number of employees, its turnover, its net assets, and the consolidated size of the hedging. Products must have been sold between 2001 and 2012. The product has to have been a standalone product, as opposed to an embedded product like a TBL. The Court action to be run by RGL Management is intended to be much broader than the redress scheme and will include claims for consequential losses (where relevant).
Q: Does it cost me anything to register with RGL Management?
A: No, there is no cost to registering. You simply provide some basic contact details and we will be in touch shortly afterwards about the next steps. There is no cost at any point in our process, unless and until your case is successful. With the funding and After the Event insurance (as described below) in place, you will not lose money as a result of the legal action planned against the Bank to be managed by RGL.
Q: Is this a no win, no fee action against Clydesdale Bank or Yorkshire Bank?
A: Yes. RGL Management will arrange funding to cover all costs, and will ensure that After the Event (ATE) insurance is provided, so that our claimants will not have to pay any “adverse costs” awarded in the event that the claims are unsuccessful.
Q: What is the Claims Management Agreement (CMA)?
A: The Claims Management Agreement (CMA) is the formal “no win, no fee” agreement between you and RGL. It authorises us to act on your behalf in the analysis, management and pursuit of your claim against the defendants. It also allows us to conclude the funding and insurance arrangements that must be finalised before legal proceedings can be commenced.
Q: How will RGL fund the legal process against Clydesdale Bank and Yorkshire Bank?
A: RGL has an agreement with Augusta, a leading specialist litigation funder of large commercial court claims; we have already drawn the first phase of funding as part of the progress made to our current position.
Q: In the event that my claim is unsuccessful, what are the chances that the ATE insurance will not pay out?
A: ATE (or “After the Event”) insurance covers against the risk of a legal claim being unsuccessful and the claimant having to pay the defendant’s costs. ATE insurance has been available to cover commercial litigation claims for the past 10 years or more. In that time, we are aware of only a handful of examples where ATE insurers have refused to meet the adverse costs liability of the insured litigant in question.Over this period, thousands and thousands of ATE policies have been issued. The % of ATE claims refused is negligible.
Moreover, these few and far between examples, have tended to involve the insured litigant being found by the Court to have been dishonest in bringing the claim in the first place and/or to have given dishonest evidence in Court. In this scenario, the ATE insurer is likely to take the position that the insured made material misrepresentations and/or non-disclosures when the insurance was initially taken out and/or is in breach of express policy conditions that oblige the insured to assist the litigation in a proper and honest way.
In the context of a group claim, if one claimant dishonestly brings a claim or gives dishonest evidence, he or she would likely not be protected by the ATE insurance, but this would not impact the other claimants insured under the policy. They would still be covered (provided, of course, they had not also brought dishonest claims or provided dishonest evidence).
It is very important to bear in mind that the process of bringing an ATE insurer on board to insure any significant piece of commercial litigation, is a very collaborative one. There will be several meetings between the insurers, the funders and the lawyers to discuss the relevant legal issues and merits of the claims. Unless any particular claimant is deliberately inventing evidence or providing misleading information, the insurance application process is so transparent with such robust due diligence, that a refusal to pay based on something not disclosed before the litigation started is (leaving aside dishonesty) highly unlikely. Of course, the ATE insurer (and the funder) will expect the claimant to co-operate fully with the legal team as the litigation progresses.
In an extremely unlikely scenario where the ATE insurer refuses to pay the defendants’ costs if the claims are not successful, the Court would decide how to apportion such costs between the funder, RGL and the claimants.
Q: What if my claim is unsuccessful, and the ATE insurance value is not sufficient to pay out the Banks’ costs?
A: As the litigation progresses, the Judge will ask all parties to provide details about the costs each of them is incurring. ATE insurance is aimed at protecting against having to pay the other side’s costs, so we and the legal team would be monitoring the updates provided by the Banks about their legal costs. To the extent it became apparent that the amount of ATE insurance purchased (the “limit of indemnity” or “LOI”) was likely to be insufficient (the scenario where the Banks’ costs exceed the existing LOI without anyone noticing is unrealistic), the insurers would be requested to increase the LOI. It is very likely they would do so, unless the merits of the claims had materially decreased. In this unlikely scenario, i.e. where the LOI may be exceeded in the future and the merits have materially decreased, the litigation would be brought to a conclusion such that the incurred costs of the Banks did not exceed the LOI, i.e. the claimants would not be exposed to having to pay the Banks’ costs. Please note that the funder is also very much focused on ensuring that the claims have strong merits and that more than sufficient ATE insurance is purchased before the litigation is commenced – this is because the funder is also exposed to having to pay the other side’s costs if the claims are unsuccessful and the LOI is insufficient. It is therefore very important to emphasise and to bear in mind that this would be a very unlikely scenario, i.e. where the LOI could be insufficient and the insurers refuse to increase it because the merits of the legal claims have significantly deteriorated.
Q: If RGL decides not to progress a claim on my behalf, will there be any cost to me?
Q: If the amount of funding is not sufficient to cover the litigation, will I have to pay?
A: No. The funder and the lawyers will work closely together in terms of monitoring the on-going legal spend on the litigation. To the extent that it ever becomes apparent that the funding may be insufficient (the scenario where the funding runs out before anyone notices, is unrealistic), the funder would consider whether to fund an additional amount (it is likely that it would, given its, by then, significant investment) or RGL would bring in an alternative funder. In any event, the legal team would not be permitted to continue to rack up costs and exhaust the existing funding with no additional funding in place. They would either stop work or, much more likely, continue to work on a deferred fee basis until additional funding is put in place.
Is it possible that the litigation could be successful but the amount awarded isn’t sufficient to cover some aspects of the costs incurred, so that I might have a financial liability?
A: No. There is no such situation. It will be an explicit provision of both the funding agreement and the ATE policy that the funder’s return and the ATE insurer’s premium will be payable only if, and to the extent, there are funds available to pay. If the litigation is successful, but the return is not sufficient to pay the funder and/or the ATE insurer, their respective entitlement to fees, uplifts and premium will be expressly limited to the litigation recoveries that are available.
Q: What will be the process of taking action against Clydesdale Bank and Yorkshire Bank?
A: The exact process of how a significant body of cases against the Bank will be dealt with by the Court will not be known until a Judge considers the relevant case management issues. It is possible the Judge will decide that a selection of claims will be actively tried first by the Court as “test” cases, rather than all claims all at the same time.
Q: What’s happened so far, and how long will it all take?
Overview of the legal process to date
- In December 2017 the first Letter Before Action was delivered to Clydesdale Bank plc in Glasgow and the National Australia Bank Limited in Melbourne from our solicitors, Michelmores. Following responses from the defendants’ lawyers (DLA Piper and Herbert Smith Freehills, respectively), Michelmores engaged in several phases of detailed pre-action correspondence during 2018 with the guidance of our Counsel team, Andrew Onslow QC and Lisa Lacob of 3VB. This ‘Pre-Action Protocol’ stage of the legal process came to an end in the early part of 2019. Although useful information did come to light as a result of this process, the banks’ approach was largely obstructive and protracted.
- On 1 May 2019, we filed (and subsequently served) the initial Claim Forms in the Chancery Division of the High Court, on behalf of 149 claimants, against Clydesdale Bank (including Yorkshire Bank) and NAB (the Defendants).
- We also served the banks’ respective solicitors, DLA Piper LLP and Herbert Smith Freehills LLP, with detailed Particulars of Claim and supporting documents.
- After some delay, the banks’ respective Defences were served on 30 July 2019, amounting to over 200 pages of pleadings and c.150MB of digitised documents.
- Our legal team’s initial review of the Defences during August 2019 revealed that the banks had not provided satisfactory evidence in regard to their alleged entitlement to charge break costs or in regard to the systematic misrepresentation to borrowers that the fixed rated element of the total interest rate reflected the prevailing market rate.
- Following a detailed analysis of the documents and data, these suspicions were confirmed. Using the available Court procedures and as a strategic next step, the legal team therefore drafted what is known as a “Request for Further Information” or “RFI”, a formal legal document aimed at demanding additional and satisfactory information about the banks’ pleaded position. Over sixty specific questions were sent to the banks’ respective lawyers, to which, after several requests for more time to answer, we finally received their responses in November 2019.
- An initial review by the legal team of the additional information provided by the banks (as well as, of course, a focus on the gaps in the banks’ position that they continue to appear to be unable to answer) has confirmed the positive view initially formed in August that:
- the banks are unable to adduce any satisfactory evidence that Clydesdale (or Yorkshire Bank) was entitled to charge break costs when a fixed rate borrower sought to repay their loan(s) early. Our case therefore remains that the assertion of any such fees was unlawful and did not form part of the relevant loan arrangement or contract, such that any attempt by the Bank to charge them was deceitful as well as amounting to a legally culpable misstatement and a breach of contract.
- the banks have also failed to answer satisfactorily the allegations that there was systematic misrepresentation to borrowers that the fixed rated part of the total interest rate reflected the prevailing market rate – it did not – it included undisclosed additional basis points that went directly to NAB’s profits and generated bonuses for NAB employees. It remains our case that this practice was deceitful as well as amounting to a legally culpable misstatement.
- In summary, our legal team continue to be very encouraged by the banks’ inability to answer our allegations, and therefore continue to believe that there are good prospects for success.
Next legal steps
We now move forward to the next phases of the legal proceedings, which include:
- preparation of the claimants’ formal Reply to the Defences. This is another pleading and will be based on the information received from the banks as part of their Defences and responses to the RFI. The Reply will highlight the holes and weaknesses in the banks’ pleaded position.
- scheduling in the Court’s diary and preparing for the first hearing before a Judge, which is known as a “Case Management Conference” or “CMC”. This is an important event and will require a great deal of work by the legal team. At the CMC, the Judge will decide various procedural matters and set the timetable to trial. There will be specific discussions concerning Scottish claimants, including whether all Scottish claims should be dealt with by the English Courts. We will update Scottish RGL Group members further in this regard as the relevant issues are discussed and debated with the banks’ lawyers.
Given the time taken by the banks in responding to the RFI – which responses are now important to the arguments to be advanced on behalf of claimants – and the work now needed to be undertaken in preparation, it is expected the first CMC (there may well be subsequent CMCs) will take place in spring 2020.
In the meantime, further claimants are either being added to the 1 May Claim Form or they will be added to further Claim Forms to be filed and issued over coming weeks/months. As part of this ongoing process, Michelmores are continuing the important process of ‘onboarding’ claimants with their Letter of Engagement, and interviewing claimants who have signed the RGL Claims Management Agreement (CMA), to gather claim details and initial supporting evidence.
To be included in the growing body of claimants in the Court proceedings, and assuming you have signed the CMA, please co-operate with the lawyers, when they contact you, as fully and as quickly as possible.
Q: How will I know how things are progressing?
A: RGL Management publishes regular email updates which we send out to everyone who is registered with us and signs a CMA. Once your case against the Bank is handed over to our legal team, they will guide you through the process and the progress updates will continue.
Q: Is RGL Management running a class action against Clydesdale Bank and Yorkshire Bank?
A: The English equivalent of a “class action” (which is a US legal device) is the “group action”. Unlike in the US, participants in a group action must join the legal proceedings – in other words, you must “opt in”. In the English Courts, a group action requires the facts/circumstances of the various relevant individual cases to be identical or very similar. In a group action, each legal case stands on its own merits, which is why it is very important to provide, when requested, any documents and other information relevant to your business’ (and your) claim.
Q: Can I choose my own firm of solicitors, or barrister, to act against the bank?
A: No. RGL Management will retain Michelmores LLP, or another firm of comparable solicitors, to act against the Bank in this matter. However, if you already have a lawyer who has knowledge or documentation relating to your potential case, it would be useful for us to make contact with them.
Q: Will I have to appear in Court?
A: If your case progresses to trial, it is likely you would have to appear in Court to give evidence
Q: I still have to bank with Clydesdale/Yorkshire – is it possible for me to remain anonymous?
A: As a claimant in the action, it will be necessary for your identity to be known at some point in the future. However, we will not disclose your name until necessary, and not without your express permission. We are mindful that some claimants are concerned about the way the bank might react, and we are in regular discussions with the All Party Parliamentary Group on Fair Business Banking (APPG), who have been very helpful. We have prepared a template letter, which we suggest you use to write to your MP (in both your residential and business constituencies) to put your concerns on record. For MPs’ correspondence addresses, see http://www.parliament.uk/mps-lords-and-offices/mps. This could be helpful in suspending any abuse of customers and guarantors, while also making things uncomfortable for Promontoria and generally putting Clydesdale under closer scrutiny. We would be very grateful if you could provide us with a copy of any such correspondence, so we can collate and discuss it with the APPG.
Q: Why is it important that RGL Management is regulated by the Financial Conduct Authority?
Q: What documentation should I retain, which may be useful as evidence in a Court case against Clydesdale Bank or Yorkshire Bank?
A: Please do not destroy, or dispose of, anything at all which could potentially be used as evidence in a future case. As well as letters, emails, and bank loan documentation including terms & conditions, this also includes text messages, and your own notes from meetings or telephone calls. If in doubt, KEEP IT!
Given the prospective Court proceedings against the Bank, we are obliged to remind you of the duty to preserve all and any of your (and your business’) documents that are, or may be, relevant to your claim and which are either in your possession or you have the ability to obtain them, or copies of them (e.g. if the documents are held by a family member or a business partner or by your or your business’ ex or current advisors). This very important duty to preserve such documents relates to the stage of the litigation called “disclosure”. This is when RGL (on your behalf) will make your documents available to the Bank, which in turn will make its documents available to RGL (on your behalf). The obligation to disclose documents is owed not just to the other parties to the proceedings, but also to the Court. The Judge will be likely to form an adverse view of the case of anyone who fails to comply with his or her duty of disclosure. It is important that you read the full Disclosure Advice, as prepared by Michelmores LLP. Although the process of Disclosure is a little while away, it is necessary to prepare for it now. As you will anticipate, a lack of documents will hinder – perhaps significantly – our (and the Court’s) ability to assess the merits of your (and your business’) claim.
Also, if you know that other friendly or neutral parties are holding potential evidence, then it would be helpful if you could either obtain and keep copies, or at least ensure that they are also preserving the information.
Q: I have lots of hard copy documents, which I am unable to scan in bulk. How should I send these to you?
A: Please contact Katie Halford on 0203 603 8597 or firstname.lastname@example.org to discuss.
Q: Will each business’s, or individual’s claim be assessed before it becomes part of the legal proceedings?
A: Yes. RGL will work with its legal team and engage independent experts as necessary, at RGL’s cost, to evaluate each claim.
Q: I know someone who may be prepared to act as a Whistle Blower against Clydesdale Bank and/or Yorkshire Bank. Would you be interested in speaking to them?
A: Yes. We have a dedicated page for Whistle Blowers against the Banks, where they can leave us a message. They can choose whether they leave us their contact details or remain anonymous.
Q: I have heard that there may be a problem relating to Scottish jurisdiction. Is that correct?
A: This is not a problem or something you should be concerned about; it is a matter of legal strategy. It may be possible to bring all our claims before the Court in London. If this is not possible, some of the claims will be brought in Scotland; we have appointed Scottish legal firm MBM Commercial to work alongside Michelmores.
Q: Should I write to my MP about my experience with the bank?
A: Yes please. This could be helpful in generally putting Clydesdale under closer scrutiny, and potentially in suspending the abuse of customers and guarantors, while also making things uncomfortable for the bank and for Promontoria. We suggest that you write to your MP(s) in both your residential and business constituencies, to raise your complaints and concerns. For MPs’ correspondence addresses, see http://www.parliament.uk/mps-lords-and-offices/mps. We would be very grateful if you could provide us with a copy of any such correspondence, so we can collate and discuss it with the All Party Parliamentary Group on Fair Business Banking (APPG), with whom we are in regular contact.
Q: How else can I help with what RGL Management is doing?
A: There are two significant benefits to attracting more members to the group action: it increases the level of threat we pose to the Bank, and it will help to trigger the increased percentage recovery to claimants, which is based on the total value of the aggregated claims. So, if you know anyone else who had a TBL with Clydesdale Bank, or Yorkshire Bank, please encourage them to register.
Also, we have contracted with an on-line e-book publisher to write the stories of victims of Clydesdale Bank and Yorkshire Bank. We are keen to build a library of these stories, telling the full extent of the personal and corporate damage inflicted upon people by the Banks. These stories will take the form of short stories dealing with the key salient points of what happened. In each case a skilled writer will meet with and interview the potential claimant. As the library is developed and published we will syndicate and release the stories through the national press, which will greatly assist in placing pressure on the Banks. If you would be interested in taking part in this initiative, please let us know by using our contact page.
Q: I have heard of PCPs – what are they?
A: Private Criminal Prosecutions are prosecutions in the criminal courts, which are initiated by a private individual or entity.
Why is RGL not bringing a PCP?
A: There are several important disadvantages to mounting a PCP:
- The obligation is on the prosecuting party to provide documents, not the defending party (the bank), meaning one must be able to produce sufficient evidence without relying on the bank’s disclosure;
- It is extremely difficult to bring a PCP against a corporate entity, such as a bank. Proving that the controlling mind of the company (i.e. the board) was complicit in the offending, is very hard to establish, particularly to the criminal (“beyond all reasonable doubt”) evidential burden of proof, as opposed to the civil (“balance of probabilities”) burden of proof. It may be easier to prove a criminal offence against individuals, but in that case the court will take into account the individuals’ means when making any compensation order, making any meaningful recovery very unlikely;
- Compensation orders are not guaranteed in PCPs, they are made at the court’s discretion. In any event, any compensation that may be awarded would very likely be limited to clear and direct losses, and will not include consequential losses;
- PCPs expose private prosecutors to high cost liabilities if unsuccessful.
RGL’s clear and stated intention is to get as much money back for our claimants as possible, through the civil courts. A PCP in the criminal courts would be a wasteful diversion from that intention. Furthermore, PCPs have the potential to disrupt civil actions, and as such participants in PCPs will have to be excluded from RGL’s civil claim, in order to protect the interests of our claimants