Court of Appeal dismisses Barclays’ LIBOR appeal
The Court of Appeal (Longmore LJ, Underhill LJ and Sir Bernard Rix) today handed down its much anticipated judgment in Barclays Bank plc v Graiseley Properties Limited & Ors [neutral citation], which has been referred to as the Libor ‘test case’.
The Court of Appeal dismissed Barclays’ appeal from the decision of Flaux J  EWHC 3093 (Comm) by which the claimants, Graiseley (members of the Guardian Care Homes group), were granted permission to amend their claim to plead fraudulent LIBOR misrepresentation and LIBOR implied terms.
Barclays argued that the LIBOR claims amounted to an “obligation to disclose one’s own dishonesty” which was a cause of action unknown to English law. Longmore LJ stated that this was “not wholly free from doubt” citing the judgment of Rix LJ in ING Bank NV v Ros Roca SA  1 WLR 472, but in any event such submission was inappropriate to an application for permission to amend (see the Judgment at ). The Court of Appeal also observed that in the cases before it the banks did propose the use of LIBOR and, at the very least where “they were representing that their own participation in setting the rate was an honest one”, “that is conduct just as much as a customer’s conduct in sitting down in a restaurant amounts to a representation that he is able to pay for his meal” referring to the well known case of DPP v Ray AC 370 (see the Judgment at -).
The Barclays appeal was heard together with the appeal by the claimants in two related cases from the decision of Cooke J in Deutsche Bank AG & Ors v Unitech Global Limited & Or  EWHC 471 (Comm). The Unitech’s appeal was allowed including on LIBOR aspects.
The Graiseley claim will now proceed to trial before Flaux J commencing in April 2014.
Farhaz Khan (2005) and Simon Oakes (2010) of Outer Temple Chambers appeared for Graiseley, led by Stephen Auld QC of One Essex Court. The counsel team were instructed by Philip Young, Len Murray, Rebecca Fairweather and Alexander Pascall of Cooke, Young & Keidan LLP.
Barristers: Simon Oakes | Farhaz Khan