I apologise to the many members of SME Alliance Ltd who are not based in Scotland who are reading this and feel I am being too partisan in directing my comments to my fellow Scotsmen. However, the justice system in Scotland is wholly devolved from Westminster and I believe there is a strong possibility of persuading the prosecuting authorities to consider criminal prosecution against the Banks, and RBS in particular, if enough of us come forward with complaints which are in many ways identical in nature.
I am a victim of what has clearly, now been identified as fraud perpetrated by RBS. Since 2002 I have been making every effort, initially by a complaint to the Financial Ombudsman Service and then through the civil legal process, to gain redress from this Bank for its conduct in recklessly driving us down the journey to bankruptcy and total financial destruction. RBS has placed every obstacle in my way and as a consequence of the distortions and deceit of its presentations to these challenges, including instructing lawyers to lie at court, has succeeded in ensuring that my challenges would be dismissed.
I have never given up with my pursuit and only very recently, after being introduced to legal counsel whose sole practice is to pursue the financial services industry for wrongdoings, has my claim finally been accepted for what I have always maintained.
The opinion provided by counsel in referring to the civil legal challenges is as follows; - in my view these initial claims have been largely misplaced in terms of the arguments deployed and those advising on such claims appear not to have understood the fundamentally fraudulent nature of the way in which the Bank was behaving.
Over the last eighteen months, my MSP has been very supportive in listening to, and finally accepting that RBS in its conduct of our business relationship was fraudulent. My MSP has spoken directly with the Lord Advocate in Scotland and I can confirm that the Crown Office and the police have conducted an investigation following a complaint that I made to the police.
I, and another fellow victim are now seeking other resident in Scotland who may believe that they have been victimised by RBS and that perhaps they too may have been victims of fraud. The civil lawyers and the civil courts in Scotland are not interested in any way when the term FRAUD is used, as I found to my cost. During the course of forensic examination of the financial position of our business, a forensic accountant clearly stated to our then legal team that he considered RBS had engaged in fraudulent practices. The forensic accountant was told in no uncertain terms to remove any reference of fraud in his report and to forget about such an allegation. This was at the time when no-one could comprehend, or even believe that any bank could act fraudulently let alone understand the magnitude of the fraud perpetrated by RBS that has now been widely reported.
The work undertaken by Lawrence Tomlinson accurately reported the wholesale corrupt conduct of this Bank and specifically the GRG division. The report has certainly opened a Pandora’s Box which has had the benefit of bringing together hundreds if not thousands of victims, the length and breadth of Britain, of the Bank’s corruption and who are now sharing their experiences.
I acknowledge that many who may feel that they have a case to pursue against RBS find themselves in a difficult situation; perhaps ongoing banking relationships with RBS, and do not wish to expose themselves to the full fury of the Bank and the financial destruction the Bank could enact on you.
I can assure you that if anonymity is required, your wishes will be respected; however the purpose of this appeal is to inform you of what we are trying to achieve.
With one MSP now very firmly acknowledging that RBS has acted fraudulently, we are seeking to encourage other MSPs who may have constituents in a similar position to meet together along with their constituents in either Edinburgh or Glasgow, where we will arrange for a legal expert in fraud law to be present and give a presentation of what could be done to bring all the cases to the attention of the prosecuting authorities.
There is an absolute certainty that the prosecuting authorities cannot ignore a raft of complaints made about one bank; RBS. I received confirmation from the Crown Office that in Scotland, fraud is an offence at common law and is the bringing about of some definite practical result by means of false pretences and requires to be proved by corroborative evidence. Were many others to come forward with details of the conduct of RBS that could be perceived to have been fraudulent that is as good as any for corroborative evidence.
One specific item that has been identified is the fact that RBS has been criminally convicted in the USA for its conduct in manipulating the London Interbank Offered Rate (LIBOR). The conviction is recorded on the American Securities and Exchange Commission website and it reads as follows; - In January 2014, a subsidiary of RBS was criminally convicted for its conduct in manipulating the London Interbank Offered Rate (“LIBOR”). The scheme profited RBS to the detriment of individuals, businesses, and governments around the globe. Under federal securities laws and regulations, this criminal conviction automatically precluded RBS from eligibility as a Well-Known Seasoned Issuer (“WKSI”) and the attendant benefits that our rules provide to WKSI filers.
The main effect of this conviction, and confirmed by counsel who has given the opinion on my case, is that anyone who was induced into taking out a SWAP which was linked to LIBOR on ISDA certificate has a fraud claim against RBS. However, it is not only the above referred issue on which a complaint of fraud can be brought, this being just one of the issues identified by counsel to pursue my case. The conduct of the Bank overall was reckless and fraudulent and many others will, I am sure have claims of reckless conduct by RBS that will support a complaint to the relevant authorities, which if all brought collectively through MSPs will strengthen our position.
One very clear issue is that fraud is not time barred and therefore, as in my case bringing a fraud claim after 17 years, can still be pursued through the courts.
Therefore, I would invite anyone to come forward and register an interest if what has been advised above has any appeal to you.
Nigel K Henderson
Below is the questions posed by founder member Nigel Henderson at today's AGM. This text varies slightly from what he actually said - we will be posting the audio on You Tube asap. We know he was able to speak at the AGM - but we don't know what the Chairman's answer to these questions was! Hopefully we'll know later.
Hopefully we will have the video of our seminar up soon - in the meantime, here's a great blog from Jon Welsby who organised the seminar for SME Alliance,
Fraud & Access to Justice Seminar
SME Alliance, 5th June 2015
It was a pleasure to organise and host SME Alliances summer seminar.
Membership of this group is diverse in geography and industry type but the one common issue that strikes to the heart of why the group came about is the wrongdoings in the financial services industry.
At times the audience was emotional and on occasion missing the point of the seminar; how to access the system to recover money.
Many victims accuse many financial service providers of committing fraud, but what exactly is fraud and how do you bring a perpetrator to account for any fraudulent wrong doings?
The panel we had invited was ideal to detail these matters and in order of speaking each one detailed their own expertise to an audience of victims, group action heads, insolvency practitioners, solicitors and other professionals.
Frances Coulson from Moon Beever detailed the wide scope of fraud and the difficulties in being able to prove through litigation recovery for money. At the cutting edge of the subject matter Frances brings a wealth of expertise and specialist insolvency insight. http://www.moonbeever.com/
Anthony Maton from Hausfeld used examples of previous success to detail how known issues such as Libor fraud can bring defendants to settle when faced with costly and reputational damages of facing a trial through court. Hausfeld also touched upon changes afoot in the legal industry where grouped actions will inevitably allow victims to act as one against companies who have breach anti-competition laws. Specialist in litigation solutions, Hausfeld are leaders in the UK for bringing about litigation for fraud in the financial services sector.http://www.hausfeld.com/contact/london
Abhishek Sachdev from Vedanta detailed that as an Expert Witness the importance of analysing the wrong doings and their effect allows a legal team to bring evidence to the case in support of any viable case. Vedanta Hedging work as specialists in financial services contracts for Derivatives and FX.http://www.vedantahedging.com/
Karen Edwards from Menzies Forensics made the important point that any losses incurred as a result of fraud need to be evidenced. The losses that stem from being defrauded have to meet the ‘but for’ rules and be reasonably foreseeable. Menzies work with experts and lawyers to bring about the loss quantum and evidence required to meet the required rules for any litigation.http://www.menzies.co.uk/en/services/forensic-services/
Michael Lent at Annecto Legal was able to highlight how litigation funding works for claimants who can-not fund their own cases and how insurance, ATE, may be needed to ensure any claims are not struck out by defendants detailing no adverse cost being covered. Traditional costed funding requires a funder to achieve a 200% - 300% return on money loaned but Annecto detailed how new funding partnerships can allow a more reasonable return if claims are grouped or in the case of insolvent cases the action is bought about under LASPO carve out provisions. http://www.annectolegal.co.uk/
Simon Stafford Michael from 1 Pump Court finished the speakers session with an excellent summary of the other speakers roles and how, as a Barrister, he perceived the necessity to plea a fraud should it be presented and instructed to Opine on. Having reviewed a number of files in the arena of Derivative misselling with Insolvency Assist, Simon detailed how 1 Pump Court as a Chamber of Barristers was now able to advise that the reckless behaviour of some banks could now allow a positive action for grouped claimants to Plea fraud. http://www.1pumpcourt.co.uk/
Q & A session the questions and answer session proved extremely useful. The attendees were able to pose questions direct to the panel who’s responses were indeed first class.
So what now ?
It is apparent that to currently access the justice system to pursue a fraud case you have to prove a strong case with evidence that can-not be questioned with a quantum of claim to allow financial feasibility to bring about any litigation. This is why so many lawyers and CMC’s steer clear of pleading fraud. It is of course essential that all legal issues are explored in full alongside any fraud but we need to recognise and understand how the legal system works.
SME Alliance are working with a number of professionals who will in the near future be releasing revolutionary new opportunities to have ‘grouped’ litigation actions assessed and established if viable.
Being part of the Alliance allows you a voice.
Being part of the Alliance will now allow you access to building your claim or start a group claim.
The speakers were all part of a combination of service providers working on irhp misselling chaired by Redress Services, of which I am a Director, who form a Steering Committee of leading law firms and professionals to share insight with a view to bringing about group actions.
Members of SME Alliance will be able to view the Seminar on-line in due course and obtain further details of group litigation schemes and how to set them up.
Director Insolvency Assist CIC
Director Redress Services Ltd
Following on from our meeting on positive banking 31st March at Metro bank, Clive May is now using the service of URICA and gives the following report- good to have some good news!!
As many of our members and the guests who joined us last Friday will know, we had a very successful Seminar on the subject of 'Fraud And Access To Justice'. It was very well attended (over 100 people) and we had some excellent speakers. Those members who couldn't attend will be happy to know the whole seminar was professionally filmed courtesy of one of our founder members Chris Mouser – who we never see because he's based abroad but who has been one of our staunches supporters from the word go. So thanks Chris and also to Michael Kelly who did the filming.
Because it was filmed, we didn't take many notes and we hope to get the video up in the near future. However, one of the over riding messages that came across from our speakers was – it costs a lot of money to take a civil action against a bank. That and the fact that third party funders who can help cover these costs are predominantly looking at the bigger cases (£10M+) is a harsh reality of where our justice system is at the moment. We have to find valid alternatives – which is what SME Alliance is dedicated to doing with FOS+ and other solutions. But I think we all took heart from the clear talking of the various speakers who clearly recognise the damage bank fraud or misconduct has caused the SME sector and who are aware how much we need the legal profession to help us address this situation. Competent professionals are out there and members of SME Alliance are perhaps better placed than many to follow their advice and consider group litigation (class actions) as a valid way forward.
I have said 'fraud' but one thing I learnt on Friday is we're better off using the term 'reckless'. I'll leave it to the video to explain that in more detail but it was, I think, a small gem of information from one of the speakers!
Many thanks to: Anthony Maton (Hausfeld), Abhishek Sachdev (Vendanta Hedging and also an adviser/member of SME Alliance), Michael Lent (Annecto Legal), Karen Edwards (Menzies Forensic Services), Francis Coulson and Simon Duncan (Moonbeaver) and Simon Stafford-Michaels (1 Pump Court).
Thanks also to Jon Welsby for organising this event and James Glanville and others for their help. I'll stop thanking people now before this gets like an awards ceremony! But it was a brilliant event and not least because of all the new faces there and new friends SME Alliance made.
One last point – unfortunately I got to the event very late due to a terrible accident on the M11 which closed the motorway for a couple of hours. So Sophie, Laura and I weren't there in time to do the registration and collect the £10 from those paying on the day. I know this caused some confusion and some people simply couldn't find anyone to accept their money!! We did manage to accept some money at the end of the seminar but it was a bit chaotic and I think some people just gave up. We're very sorry for an inconvenience and if anyone would like to pay in retrospect or, if any of the people who mentioned sponsoring us would like to follow up on this, please e-mail us on email@example.com and we'll send payment details.
A newsletter will be going to all members by the end of the week with other news and updates on our collaboration with BIS, FCA, NEF and the huge progress we're making on FOS+.
Finally, an incredibly good piece of news – one of our members was due to be evicted at 12.00pm today. Of all the eviction cases we've seen over the last few years and even although this one was blatantly wrong, it really was touch and go. Anyway, some of the SME Alliance adviser team has been helping and I've had my fingers crossed all day that an emergency court hearing would produce a just and positive result. I had a call at about 4.00pm today to say the eviction has been suspended! Yehhhhh!! It's small victories like this that make me so glad we formed SME Alliance! I would also add that, yet again, the conduct of Lloyds Banking Group has been very, very disappointing. Not to mention the ongoing and appalling conduct of some LPA Receivers – this needs serious attention.
All our members are encouraged to contribute to the SME Alliance weekly blog.