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Herbert Smith Freehills has successfully acted for KPMG, after the Court of Appeal (CoA) confirmed today that it was not amenable to a judicial review in connection with its role in the large scale review of mis-sold interest rate hedging products.

This appeal follows KPMG's successful first instance defence of a judicial review brought by a Barclays customer, which had challenged KPMG's confirmation that the redress that Barclays had offered it under a past business review exercise was appropriate, fair and reasonable.

As explained in our press release of 24 February 2016 (available here), in 2016 the Divisional Court dismissed the Claimant's claim on the basis that KPMG was not amenable to judicial review (and, even if it had been, any public law duties owed would have been narrow and on the facts there had been no unfairness to the Claimant). 

The CoA has also dismissed the Claimant's appeal of the Divisional Court's decision, finding that, in the wider factual and regulatory context, KPMG was not performing a public law function as the circumstances were fundamentally a private law matter. 

This decision confirms KPMG's understanding of the nature and scope of their responsibilities and that a firm in this position will not be amenable to judicial review.

The Herbert Smith Freehills team acting on this matter for KPMG consisted of: Partner Andrew Lidbetter; Of Counsel Jasveer Randhawa; and Associate James Wood. Counsel instructed for KPMG were Javan Herberg QC and Hanif Mussa of Blackstone Chambers. 

Commenting on the case, Andrew Lidbetter said: "We are delighted to have been able to assist KPMG LLP with this matter, in which the Court of Appeal have given a definitive judgment confirming that KPMG has not been carrying out a public function."


About Herbert Smith Freehills

Operating from 27 offices across Asia Pacific, EMEA and North America, Herbert Smith Freehills is at the heart of the new global business landscape providing premium quality, full-service legal advice. The firm provides many of the world’s most important organisations with access to market-leading dispute resolution, projects and transactional legal advice, combined with expertise in a number of global industry sectors, including Banks, Consumer products, Energy, Financial buyers, Infrastructure & Transport, Mining, Pharmaceuticals & Healthcare, Real estate, TMT and Manufacturing & Industrials.
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