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KPMG defeats judicial review challenge in Barclays swap case

Accountancy giant KPMG has triumphed at London’s High Court today (24 February) after an unprecedented judicial review taken by Holmcroft Properties was dismissed.

In a case which would have opened the floodgates for other firms unhappy with their compensation from the banks, the Big Four accountant was sued by nursing home operator Holmcroft along with the Financial Conduct Authority (FCA) and Barclays.

Holmcroft questioned KPMG’s role as an independent reviewer in the compensation process of mis-selling of interest rate swap products. The FCA reached an agreement with Barclays to set up a scheme to provide redress to certain customers who had been wrongly sold these products. The bank agreed that an independent party, KPMG, should oversee the implementation and application of the scheme and that Barclays would make no offers of compensation before KPMG’s approval.

Holmcroft argued it was made an offer by Barclays that was inadequate and did not satisfy the criteria because it did not include compensation for loss which it alleged was a consequence of the mis-sale.

The company also alleged Barclays did not fairly deal with its application for consequential loss and when KPMG acted in breach of public law principles by approving the offer it made to it by Barclays.

Heard over two days in late January, a judgment handed down today by Lord Justice Elias and Justice Mitting said: ‘It would in fact be immaterial whether KPMG had properly reviewed the case or not. But in fact there is clear evidence that they did carry out the task which they were required to do pursuant to the undertaking.’

The judgment added: ‘KPMG also expressly reviewed the offer again following the further letter from Holmcroft. There is no basis for saying that they were in breach of any public law duty, even assuming that they were subject to such duties…We dismiss the application.’

Brick Court Chambers duo Richard Gordon QC and Malcolm Birdling were instructed by Mishcon de Reya for Holmcroft while Blackstone Chambers pair Javan Herberg QC and Hanif Mussa were instructed by Herbert Smith Freehills for the KPMG.

Blackstone Chambers trio Monica Carss-Frisk QC, Daniel Burgess and Kerenza Davis were instructed by Baker & McKenzie head of financial services Arun Srivastava for the FCA and the set’s high profile silk Dinah Rose QC was instructed by Linklaters for Barclays alongside barrister Ben Jaffey.

HSF partner Andrew Lidbetter said the judicial review confirmed KPMG had not been carrying out a public function.

‘It is also pleasing because the court found that the review had been conducted in a “conspicuously scrupulous” way and that there was “clear evidence” that KPMG had carried out its task appropriately.”‘