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Individual investors who "speculate" having a tough time in court

19 April 2013

In my "blog" of 8 March 2013, I refer to a couple of cases in which individual claimants have successfully sued a bank, basically in negligence for failing preserve their wealth; for example, Deutsche Bank AG v Chang [2012] SGHC 248 (subject to appeal) and Rubenstein v HSBC Bank Plc [2012] EWCA Civ 1184 (an appeal court judgment).

Both cases involve individual investors apparently more concerned with asset protection than trading to maximize their wealth.  While each case turns on its facts, the distinction (between asset protection and trading) appears quite important and may, perhaps, reflect a less "sympathetic ear" with respect to more speculative investors.  The following cases in Hong Kong and England appear to confirm as much; cases in which the individual claimant investors (or their representatives) have conclusively lost.

DBS Bank (Hong Kong) Ltd v San-Hot Industrial Co. Ltd & Anor, 12 March 2013, is a failed mis-selling claim (by counterclaim).  Noting that the second defendant (a sophisticated investor in her own right) had a tendency of "following the crowd", the Hong Kong judge observed:

"If she had not been so greedy, she could have also accepted DBS's repeated suggestions of disposing of the accumulated shares to lock-in her profits and improve her cash flow".

In Kwok Wai Hing v HSBC Private Bank (Suisse) SA, 21 June 2012, the Hong Kong judge said of the claimant (a wealthy individual):

"I do not have the impression that she was the 'helpless housewife' which she attempted to portray in Court".

In Hobbins v Royal Scandia Life Assurance Ltd & Anor [2012] 1 HKLRD 977, the same judge said of the claimant (a sophisticated individual investor):

"To begin with, Mr. Hobbins is far from being a babe in the woods in matters of financial investment".

In Zaki & Ors v Credit Suisse (UK) Ltd [2011] EWHC 2422 (appeal dismissed - [2013] EWCA Civ 14), the unsuccessful investor was said by the judge in London to have had "a serious appetite for investing" and to be "bullish, brave and confident".  In Al Sulaiman v Credit Suisse Securities (Europe) Ltd & Anor [2013] EWHC 400 (Comm), the judge in London concluded that some of the unsuccessful investor's evidence was "not only inaccurate and unreliable, but dishonest".

Speculation comes with attendant risks.

This blog is a summary of recent developments. It should not be regarded as a substitute for advice in any particular case. RPC is not responsible for the content of external websites.