A few comments on this post
Gan020 wrote:A reminder:
"The judge said that he had not found the question of assumption of responsibility easy to answer and that his mind had wavered [176].
His ultimate conclusion, however, was that GT had not assumed responsibility for the MTM losses for the reasons set out in [179]:
[quotation from case snipped]
"The judge" here and in your final paragraph of course refers to the judge in the original High Court case [NOT the Appeal case] who came down comprehensively on MBS's side throughout, save for that one confused paragraph.
So, it's unsurprising we are here because the judges mind wavered and left it open for another appeal.
No, we are here because the Appeal Court also ruled on this case, actually overturning some of the judge's sound points but still finding in favour of GT, though for different reasons.
I note the swaps were closed out for a loss of £33m with MBS having had to provide that much cash as extra collateral. I assume had they not been closed out even more collateral would be provided as of today's date as interest rates have fallen further, although this is not relevant to the case.
Probably correct and yes, not really relevant. Of course if GT's advice had been correct the hedging would still be in place, the hedge accounting would have erased the volatility in the accounts and MBS would not be having any problems.
What surprises me most is that some 15-20 years after the swaps transactions took place and just a few days before the judgement of the court new evidence has been submitted by one of the parties. If it's MBS why has it taken 20 years to come up with something that would strengthen their case they didn't submit as evidence many years ago and if it's GT the same can be said.
UIAVMM, new evidence cannot be submitted at appeal. Only points of law can be contested. So the submissions are not evidence but some point of law which one party or the other wishes to put forward.
SAAMO appears relevant if GT's advice had been correct. The linked claim. I'm not sure how relevant this is and it's beyond my skillset. Unless of course the new evidence relates to challenging MBS's position that it would not have closed out the swaps but for GT's bad advice. The collateral would now be much higher than £33m and I assume this is coupled with people living much longer. I am probably wandering off point now.
The linked claim is 100% relevant because it is also a SAAMCO case and concerns a very similar issue i.e. how much of the claimants' loss should compensated by the negligent party. The Supreme Court would hardly have linked them if they were irrelevant to each other!
If the judge was wavering last time who knows which way this will go. More than anything it would be helpful to know what the new submissions to the court are from.
As mentioned above the judge wavered two cases ago not last time.
I doubt we'll be told anything concrete about the submissions. My hunch is that the Court gave sight of the judgment to counsel before the publication and asked for comments and that is how the submissions arose. Seems likely to me that some new law has been made, maybe a refinement of or supplement to the SAAMCO principles.
GS