UK: England and Wales: judicial review claim fails in interest rate hedging case

Judgment was given yesterday in Holmcroft Properties Ltd, R (on the application of) v KPMG LLP & Ors [2016] EWHC 323 (Admin). The case concerned an application for judicial review in respect of a scheme set up by Barclays, in agreement with the predecessor of the Financial Conduct Authority (the Financial Services Authority), to provide redress for certain customers who had been wrongly sold interest rate hedging products. Barclays agreed that an independent party, KPMG, would oversee the implementation and application of the scheme, under which no offers of compensation would be made unless approved by KPMG. KPMG's approval could only be made if it considered the offers to be appropriate, fair and reasonable.

The case was heard by Lord Justice Elias and Mr Justice Mitting. They unanimously held - not without some hesitation - that KPMG's decisions were not susceptible to judicial review because they did not have a sufficient public law favour.