(Originally published October 2020)
Having put my name to a letter submitted by multiple concerned persons in respect to the BBRS, I want to provide some colour as to why.
In addition to putting my name to that letter, I also wrote to Mr Shand Smith, John Glen and the Treasury Select Committee, outlining my concerns below and requesting their urgent response. None has been forthcoming.
It is with no little concern that I write today, in respect to the make up and background of the Board of the BBRS.
I write with over thirty years experience working on the trading floors of many of the world’s largest banks including Citibank, Chemical Bank, Lehman Brothers, Natwest, SBC, UBS, and as a former Director of Lloyds Banking Group (2012-2014) and whistleblower in respect to multiple counts of wrongdoing and criminality on the trading floor whilst at Lloyds. In my role prior to Lloyds as Executive Director at UBS I also raised multiple significant concerns in respect to wrongdoing in FX.
Since being unfairly dismissed by Lloyds Banking Group in 2014, I have provided litigation support services for large law firms on multiple banking and financial markets cases across the globe, and across the spectrum of banking and financial markets products and asset classes.
I have also provided expertise on a pro bono basis for victims of bank wrongdoing, that have been unfairly and/or unlawfully treated by their banks and indeed, those bodies that are supposed to protect customers from such wrongdoing.
During this time I have also been provided with substantial intelligence and evidence by victims as well as whistleblowers working for various banks, large accounting firms and other ‘bodies’.
I have been prepared up until this point to give the benefit of the doubt to the BBRS, and hope that it was a genuine organisation dedicated to independent and objective review by qualified and non-conflicted persons.
HOWEVER, I have had increasing concerns and reservations and the recent appointment of Stephen Pegge to the Board completes what is a body of people that could not be more conflicted.
For the record and avoidance of doubt, my concerns as to ‘conflicts of interests’ do not constitute a specific allegation, but point out where those clear and obvious conflicts of interests lie, as per the universal definition and understanding of the term. I remind all readers that there are numerous laws, codes and policies in force globally specific to ‘conflicts of interests’ such are the risks they represent, and the need to remove or mitigate them.
I provided the following text to the UK Finance Press Office with the following request:
“I am in the process of producing an article for my financial markets and banking blog raising concerns as to the BBRS. UK Finance feature within this. Can you please review this UK Finance specific content below and let me know of any concerns that you have as to accuracy, and/or provide any statement that you would like me to include.”
Nicola Hussey (UK Finance Communications) responded confirming that they will not be commenting.
UKFinance are an organisation that was born out of various parties including, and particularly, the BBA (British Banking Association). Tom Hayes was convicted for his alleged crimes in substanial part based on the testimony under oath of John Ewan, Direcor of BBA and responsible for oversight of LIBOR.
Ewan took the stand as witness for the prosecution and on a specific issue as to banks and traders manipulating LIBOR to suit their trading books as opposed to representing their true cost of borrowing, was asked (and I quote from the trial transcript. Page 131 to be precise):
“Did you, while you were at the BBA — forgive me, let me be more specific than that. Up until the end of 2010, did you have any suspicion that this sort of activity was taking place?”
To which Ewan replied:
“None”
Was this not a lie? Had Ewan and others at the BBA, not known about exactly this practise, and just how widespread it was, since at least as early as 26th April 2004 when it was brought to their attention?
The BBA certainly had the evidence and awareness at this time. It is safe to presume that UKFinance in to which the BBA morphed, along with certain executives within it, must also be very well aware of this.
Ewan’s testimony established to the Court that this behaviour was not industry wide, and established, Hayes as more of a ‘lone wolf’ or lone rogue. Anyone who has ever sat The FCA ‘Regs’ exam will know that these FCA regulations state that it is an absolute defence to allegations of market manipulation, where it is established that it is an industry wide and accepted practise.
This was a key principal to Hayes defence. Ewan’s testimony tore that apart.
Notwithstanding that Hayes, and other 'cherry picked' individuals involved in LIBOR that were also prosecuted, were actually acting within the rules. However, and irrespective of the 'rules', the practises were clearly industry wide and were therefore an 'industry standard practise'. Furthermore, if the BBA had admitted they were aware of this as early as 2004, and took no action, then this further endorses the them as ‘accepted practise’.
The simple fact is, you either punish all involved or you punish none. Punishing all was not possible due to The FCA regs and BBA apparent approval, being an absolute defence for those involved.
So, instead the punishment of a select few was ‘engineered’.
Until UKFinance come clean about this and their role and/or knowledge in respect to other wrongdoing, how can it be trusted or credible, and how can it be regarded as an 'independent' entity, and any person associated with it not be conflicted?
The BBA had but one mission and objective. To act in the best interests of the banks and the industry. Honesty, integrity and transparency are not only obligations bestowed upon banks and their staff, they are also in the bests interests of the industry. However, perverse LIBOR prosecutions and the very fact the BBRS exists and I’m writing this article, proves that the BBA clearly did not recognise these qualities as being in the best interests of the banks and industry.
The SRA (Solicitors Regulation Authority) are the ‘regulator’ of law firms in the UK. By way of example as to honesty, independence and objectivity, in 2015 the SRA received over 10,500 complaints from consumers. Of those, only 146 were upheld. There are no circumstances where an uphold rate of 1.39% is demonstrative of anything but prejudiced, conflicted and, dare I say, dishonest, oversight.
(Table obtained from SRA via Freedom Of Information request (SRA REF:SRA0081) submitted 17th June 2016)
Furthermore, there are currently law firms that have represented banks in multiple cases who are facing investigations and numeorus allegations of breach of the SRA code of conduct, and also UK law. It is hardly surprising that the conduct of certain law firms that defend banks has deteriorated to such appalling and often unlawful standards, when a regulator does not ‘regulate’ and in fact acts to contrive inconceivable defences on behalf of those it purports to regulate.
Most of the cases that the BBRS are likely to review will also likely involve either in-house bank counsel or external law firms that have compounded the wrongdoing, where it exists, by contrived and/or knowingly false representations, and further likely to have been subject themselves to a complaint by the victim. Complaints that have been denied by the SRA, often despite substantial evidence to support them.
As such, any person with an SRA background is also conflicted given that any complaint upheld by BBRS could implicate, or expose, either that person themselves, or any number of former colleagues at the SRA, and the SRA itself.
The FSA/FCA have been exposed now as to having repeatedly acted dishonestly and/or unlawfully, and certainly contrary to their mission statement and mandate. I speak from very personal experience, as well as having worked on numerous cases where it is clear and evident that the FCA has acted dishonestly.
Of particular note, I obtained substantial and significant evidence that demonstrates that The FCA, Andrew Bailey, HM Treasury and Sajid Javid, to name but a few, all lied as to why the new sophistication critieria was introduced to the IRHP Review in January 2013, and lied as to who introduced it. They kept up this charade for 6 years until James Hurley of the Times ran his story on it last year (2019).
I presented all of this evidence to demonstrate the above allegations to the team being lead by John Swift QC who are running the independent investigation in to the FCA IRHP review.
The day following my presentation of the substantial evidence demonstrating Mr Javid’s role in the introduction of this criteria, and the false representations made in respect to it by The FCA and HM Treasury, all of which served to deprive over 5,000 UK Business banking victims of approx. £15bio of appropriate damages, Mr Javid resigned as Chancellor.
Was the resignation connected to this exposure of evidence? No idea. However, the optic of the most powerful money man (Chancellor of the Exchequer) in the UK government having played such a role, cannot have been desirable.
FCA Failings (Just some of the many and in addition to the IRHP Review dishonesty and failings) - (At time of 'print')
The FSA/FCA failed to act over HBOS Reading, despite overwhelming evidence.
The FCA produced a falsified summary of the Promontory 166 report in to RBS GRG. Not just ‘misleading’, but actually falsified, and used the falisified summary to attempt to justify the paltry £400mio redress fund that was being established. A blatant attempt to collude with the bank to limit it’s liability, and deny victims appropriate redress.
The FCA colluded with Lloyds Banking Group in 2017 to similarly establish a £300mio redress scheme to compensate the abuse by the bank of mortgage customers that were vulnerable and/or having payment difficulties. A scheme that was supposed to include consequential damages also. A scheme that offered on average £600 on average per victim, when the true damages were significantly higher, and was administered entirely by…..Lloyds. Once again the guilty party allowed to mark their own homework. My estimation is that the true damages were in excess of £5bio. One victim had damages of over £180,000, and the scheme determined his entitlement was £300. (There is a whole other story in respect to this particular case)
The FCA failed to act on reports of blatant misleading and false promotion of mini-bonds in March 2017 contrary to FSMA and FCA COBS. £45mio pensioner savings lost as a result.
The FCA were aware certainly in April 2015 if not before that there was a pattern of widespread abuse of whistleblowers by Lloyds. Senior FCA managers told me this in a meeting that was recorded by The FCA, and that I have a copy of. However, far from taking action, The FCA sought to compound that abuse of the whistleblowers. The FCA knew what Lloyds had done to Sally Masterson years before Lloyds apologised to her and compensated her. The FCA did nothing. She was far from a lone victim. (More to follow on this issue)
And so much more.
And let’s be clear, if the FCA or the Financial Ombudsman Service had acted honestly and objectively, there would be no need for the BBRS.
Any person with a history at The FSA/FCA is entirely conflicted.
Lloyds Banking Group – I read with interest and no little amazement that the BBRS had hired Stephen Pegge, apparently after a ‘rigorous and competitive recruitment and selection process’.
Mr Pegge worked exclusively for the past six years at UKFinance. UKFinance is the trade body that denies all wrongdoing by the industry, and produces PR spin on behalf of the very banks that are the subject of these complaints (in addition to what appears to be suspect or perjured testimony in Court).
However, more concerning, is that prior to working exclusively for UKFinance he held senior positions simultaneously at both the BBA and Lloyds Banking Group.
Mr Pegge was a Director in Group External Relations between 2013 – 2017 during which time he was, and I quote from his LinkedIn profile, “Responsible for the Group’s relationships and communication with stakeholders including politicians, authorities, business networks and finance programmes”
I remind you that this was the period that Thames Valley Police were investigating HBOS Reading, and during which time Lloyds Banking Group vehemently, and falsely, communicated to MP’s, police, media and victims that there was no wrongdoing and certainly no crime. I have no idea if Mr Pegge was involved in any such communications, and do not allege such. I merely point out the facts.
Between March 2009 and September 2011 Mr Pegge was “Head of External Affairs, Commercial”. This role involved, and I quote, being “Responsible for public affairs, PR and business networks for Lloyds TSB and Bank of Scotland’s SME and asset based finance services”.
Again, I make no allegation but refer you to the fact that during this period Lloyds Bank were:
A) denying all wrongdoing with respect to HBOS Reading
B) Heavily involved in not just the manipulation of LIBOR but also the Repo Rate. (This is the rate that would determine how much the bank paid back to the Bank of England and therefore taxpayer for having bailed them out.)
C) Denying PPI Mis-selling. (it was not until June 2011 that they were forced to admit mis-selling and begin repayment of billions of pounds unlawfully taken from customers.)
D) Denying IRHP mis-selling.
However, more concerning is that his role at Lloyds Banking Group between 2011-2013 was “Director of SME Markets”. Two questions for you:
1. Which department at Lloyds Bank was most responsible for selling and pricing toxic IRHP’s, toxic structured products, and other products & ‘services’ to non sophisticated Customers?
2. Which department at Lloyds Bank was most responsible for targetting less sophisticated customers for excessive and undisclosed mark ups when selling them financial products, including Interest Rate Hedge Products (IRHP's) or executing FX transactions?
Yes, that would be SME Markets.
And between 2006-2016 Mr Pegge was Chairman of the Small Firms Advisory Panel at the BBA (British Bankers Association).
Again, no allegation, merely identifying the fact that the period between 2006-2016 saw the destruction of 'small firms' by the banks on an unprecedented and industrial scale.
I am sorry, but I am not sure that it is possible for one individual to be more entirely conflicted. And yet the BBRS has hired Mr Pegge as Board member.
Portland Communications – Essentially PR Spin merchants and lobbyists for large corporates. Of particular and most grave concern, among many, is this quote from their website:
Portland’s Disputes team provides strategic communications advice to help reinforce your legal strategy.
We ensure that every aspect of your clients’ concerns are managed, and every potential advantage explored. For fifteen years, and across multiple jurisdictions and languages, Portland has applied its problem-solving abilities to provide bespoke communications solutions to legal issues. We understand the realities of the modern media and digital landscape, the rigours of the law and the need to deliver results. Our work covers a wide range of disciplines. These include crisis preparation, simulation and management; strategy, narrative and content development; and planning and executing media and multi-stakeholder campaigns.
Specialist areas
Strategic communications
Complex and multi-jurisdictional litigation require a communications strategy to ensure that reputational, political, stakeholder and other issues are carefully managed. We create tailored solutions using Portland’s problem-solving and campaigning approach. Working closely with lawyers we ensure that the legal strategy is reinforced and that your key audiences are persuaded by your messages.
Media management
High-profile and complex litigations, investigations and disputes can damage reputations. We have legal, business and international media contacts and understand the importance of ensuring coverage is factually accurate through our 24/7 monitoring and rebuttals. Our team are experienced at managing media in court and handling complex media briefings.
Arbitration communications
Arbitration proceedings are always highly confidential. There is no guarantee, however, against leaks and potential reputational damage as a result. Our team is experienced in creating strategies designed to mitigate risk and prepare for any potential fallouts from high-value, high-profile arbitration procedures.
Class actions
Group litigation is an increasingly popular legal mechanism used in England and Wales. We have experience defending well-known reputations against these actions and leading groups of claimants against large corporates. We have worked with major brands to manage employee and consumer actions in the UK. We have also carried out book-builds, notification plans and class communications.
Investigations and public bodies
The threat or instigation of an investigation or judicial review is closely followed by the media and stakeholders. Our team has experience working with clients to protect corporate reputations and rebuild individual profiles. Our team has expertise dealing with judicial reviews and investigations across multiple jurisdictions.
Private client
Complex communications and reputation problems demand bespoke solutions. Our team has expertise and experience in a range of specialisms tailored for UHNW individuals and families, including legal, financial and philanthropic communications. We work in close collaboration with other professional consultants, from lawyers to tax advisers, to get the best outcome for the client.
A one stop 'damage limitation shop' for large firms facing litigation. Having been on the receiving end of vicious, false and misleading PR when personally bringing, and winning, my unfair dismissal claim against Lloyds Banking Group and since, I can testify as to how damaging and distressing this can be.
Paul Moore and Sally Masterson both suffered terribly for their honesty and integrity.
Countless victims can testify likewise.
To protect the reputation of the firm, it invariably involves smear and attacks on those bringing the claims, or making disclosures, particularly when, as is so often the case, the claimant is right and has the evidence to support them.
Almost all those that will be using the BBRS will be those with complaints that, by definition, the bank or firm have gone to significant lengths to deny and deny publicly, and often with contemptuous and dismissive language.
How can a firm that provides the above services for large corporates, possibly not be conflicted?
I am sorry, but the BBRS no longer has any credibility. We needed change, but what we have got is another link on the chain of conflict.
Additional Concerns
1 – One of the terms used by the BBRS as to their process, is ‘relevant evidence’. This is disturbing. The Financial Ombudsman Service (FOS) use the same term, and have repeatedly ‘chosen’ to claim key evidence is not ‘relevant’, particularly where that evidence is that which would force them to uphold the complaint. Whenever they have adopted this position, The FOS then state that they do not have to explain to me or the complainant why they have deemed the evidence not relevant.
The Complainant has the right to submit evidence and the obligation should be on the ‘reviewing’ party to consider all evidence and provide explanations as to why they do or do not consider it relevant.
The FOS and the BBRS purport themselves to be an Alternative Dispute Resolution Service to the Courts. Well, then the same rules of evidence and disclosure must apply. It appears clear that the BBRS is proposing to operate in the same way as the FOS in this respect. Entirely unacceptable.
2 – The rule of thumb in all cases should be, and I quote an Order from my Employment Tribunal, “Disclose ALL evidence whether it helps your case or not.”
One of the FOS key failings is relying upon the firm in question to provide them with either the evidence that the Ombudsman specifically asks for, or evidence that the Firm itself deems relevant.
This is entirely flawed. With each complaint, the obligation must be on the firm to disclose the entire file in respect to the complaint and complainant.
I, and the various teams of associates that work with me on large financial cases for law firms across the globe, review documentary disclosure that often runs into tens of thousands, if not millions, of files.
We know what we are looking for, and how to find it. But that only comes from having 20-40 years experience each working for banks and on the trading floors of banks.
For example, within thirty minutes of receiving evidence from one IRHP victim, I spotted an issue and concern that had not been noticed/discovered in seven years of scrutiny.
In addition, in all cases there will also be evidence that is not always obvious. Therefore there is always an element of “you don’t always know everything you’re looking for, but you will know it when you see it”.
If, like all Ombudsman and adjudicators at the FOS, and it appears most investigators employed by The FCA, you do not have this experience, it is highly unlikely they will notice or discover this evidence.
Particularly if the firm has been less than honest and comprehensive in their disclosure of evidence.
And herein lies the third significant ‘evidential’ issue.
Our work is often as much about identifying what evidence is NOT there, as it is reviewing what is there. As you would expect, that which is 'not there' tends to be the evidence that is not ‘helpful’ for the firm.
If you do not have the experience, you will not know what should be there, or will not be able to pick up the inconsistencies that expose the fact that evidence is missing.
I have seen recruitment literature for the BBRS and it concerns me as to the criteria.
‘Qualified lawyer’ or ‘experienced in case handling & case management’ or ‘experienced in dispute resolution’.
Nowhere have I seen reference to experience in banking and financial markets.
Don’t get me wrong, I speak from personal experience when trying to put together teams of experienced professionals to work on large cases across the spectrum of financial products. These persons cannot have been involved in any wrongdoing, and cannot be persons that could be implicated by the evidence to be reviewed.
That is an incredibly exclusive club.
This is extremely challenging given the general industry wide behaviours involved. Equally, and the BBRS do recognise this, the employment of former bank persons could prove difficult for complainants to accept, and for the reasons of conflict.
Albeit, that the BBRS appears to ignore exactly those conflicts when it comes to composition of the Board.
Initial concern and doubt as to this being an independent and objective solution compared to Tribunals was natural. If it’s what the Banks, UK Finance and HM Treasury want, then the BBRS must suit their interests and be contrary to the interests of complainants.
However, I was prepared to give it the benefit of the doubt, and or give the BBRS enough rope to hang itself, and prove unequivocally that it was not fit for purpose, and therefore remove the last obstacle for a Tribunal system.
Initial noise did appear to be encouraging. However, I think it is now safe to say that the hangman has pulled the lever.
(First published in October 2020. Since then, further evidence has emerged, all of which serves to rubber stamp the concerns expressed in this article.)