Friday, 25 January 2013

UK: England and Wales: anonymity order refused in LIBOR manipulation damages case

Yesterday, in Graiseley Properties Ltd v Barclays Bank Plc (Rev 1) [2013] EWHC 67 (Comm), the High Court refused to grant anonymity during the interlocutory stages of the case to individuals implicated in Barclays' manipulation of LIBOR. The case is widely reported as the first before the English courts in which a party is seeking damages in connection with the manipulation of LIBOR, the argument being based on a claim of fraudulent misrepresentation in respect of the independence of the LIBOR benchmark (for further information see [2012] EWHC 3093 (Comm)).

The trial judge concluded that to grant an anonymity order would be an affront to the principle of open justice and would potentially damage public confidence in the administration of justice. It is interesting to note that an argument linked to the company's separate legal personality was raised in the course of argument. Lord Pannick QC, acting on behalf of those seeking anonymity, drew a distinction between cases where those seeking anonymity were central to the case (and where the courts had refused to grant anonymity orders) and the present case where the individuals' involvement was argued to be incidental because the defendant was Barclays. This distinction was rejected by the trial judge: "I can see no principled reason for drawing that distinction and, in any event, in relation to the individuals who were involved in manipulating LIBOR, the point made is a somewhat doubtful one. Since a corporate entity can only act through its human agents, the identity of those agents is certainly an important aspect of the case" (at para. [36]).

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