The Federal Deposit Insurance Corporation & Ors v Barclays Bank Plc & Ors

In complex litigation, case-management orders must be reasonably necessary and proportionate to the stage and needs of the proceedings. A generic and conclusory pleading, particularly where fraud is alleged, may require further information identifying the primary facts, decision-makers and alleged reliance. The court may use a sampling exercise to reduce disproportionate burdens while allowing opponents to understand and test the case.

Information concerning loss may be deferred where it has limited immediate case-management utility, but relevant documents should be disclosed on a sensible rolling basis. A party seeking to amend generally bears the costs of the amendment process unless the opposing party acted unreasonably. Costs following withdrawal of some claims must ultimately reflect the fair and just position, including the extent to which common issues remain live.

The Federal Deposit Insurance Corporation brought claims as receiver for 19 closed US banks against bank defendants and BBA parties concerning alleged suppression of USD LIBOR. The claims included competition claims and US-law claims for fraudulent misrepresentation, conspiracy and related causes of action.

At the first case management conference, the court considered the contents of case-management documents, requests for further information concerning reliance and loss, advance disclosure of documents concerning non-performing loans, disclosure relating to the claimant’s regulatory capacity, and costs arising from the withdrawal of claims concerning 20 banks.

1. Case-management documents. The proposed admissions concerning the LIBOR flagging system and criminal trials were better dealt with in the issues or evidence, rather than given prominence as common ground. A broadly framed issue concerning the significance or prevalence of LIBOR in global markets was also excluded because it was open-ended and insufficiently connected with the pleaded claims.
2. Further information. The requests concerning reliance were proper in principle. The pleading was generic and conclusory and did not identify the relevant persons, their understanding of the representations, or how they acted on them. The fact that the claims included fraud reinforced the need for proper pleading. The test was whether information was reasonably necessary at this stage, having regard to utility, timing and burden. The claimant was directed to explain the nature of its US-law case within eight weeks and to provide detailed information for a sample of four closed banks by the end of September. The same approach applied to the BBA parties’ request concerning the robust benchmark representations.
3. Loss and disclosure. More extensive quantum information was not ordered immediately because it had less case-management utility at this stage and the claimant had offered a useful explanatory document. Relevant documents underlying Schedule A were to be provided, but the claimant’s work product and analysis were not required. Disclosure should be managed flexibly and, where possible, on a rolling basis. Fast-track disclosure concerning non-performing loans was refused.
4. Regulatory documents. No order was made requiring details of documents held by the claimant in its regulatory capacity. The question of control and any regulatory privilege should be determined in the broader disclosure process.
5. Costs. The claimant was ordered to pay the Bank Defendants’ costs of the amendment application. The general rule is that a party seeking amendment bears the costs unless the opposing party acted unreasonably. As between the claimant and the BBA parties, the fair order followed the agreed arrangements, including protection through a reserve, because common issues remained central and the analogy with group litigation was not decisive.