The preceding chapter showed the piecemeal nature of regulatory protections for participants in the derivatives markets and explained how it has been justified on the basis that an alternative means of redress is available, namely private claims for mis-selling based upon ‘contract and negligence’. This chapter explores the reality of this type of private law claim. The argument focuses on those claims that are typically deployed by participants in the OTC derivatives markets and on the patterns that emerge from these mis-selling cases. The next chapter considers the related topic of contractual defences relied upon in this context. Together, these two chapters demonstrate why there have been so few successful mis-selling claims and question the assumptions behind the prevailing regulatory scheme.

So far, we have seen that derivatives mis-selling cases have three typical features: multiple claims; complex trials; and, as many of the recent cases suggest, unsuccessful outcomes for claimants. The cases show that there are two fundamental reasons why many mis-selling claims based upon contract and tort are unsuccessful. The first is the claimant’s failure to establish all of the necessary elements of the claim, and the second is the defendant’s successful reliance upon contractual disclaimers. The preceding chapter considered the high bars involved in establishing certain types of claims associated with mis-selling litigation. Overall, it argued that it would be exceptional for a claimant to be in a position to establish fraud, while the core claims for mis-representation and breach of duty require claimants to establish certain elements with a high degree of precision and specificity. At the same time, statutory schemes of redress offer piecemeal coverage only, while the courts have been unpersuaded by attempts to construct alternative avenues for redress based upon tort or equity. These factors heighten the relevance of private law claims within the regulatory matrix, and help to explain why mis-selling claims involve such a diverse set of market participants.