UK: JPMorgan Chase Bank v. Springwell Navigation Corporation, Part 1: A Banker´s Duty to Advise - Part 2

Credibility of Principal Witnesses

Before summarising her conclusions on the factual evidence, the judge expressed her opinion of the reliability and credibility of the principal witnesses.

Gloster J found EM, who gave evidence on behalf of Springwell, to be an unsatisfactory witness whose evidence was vague and confused and shifted during the course of the trial. At times, the judge found him to be evasive and considered that he was not an independent witness.

As for AP, Gloster J considered him to be a commercially astute and clever businessman. By the time of the recorded conversations from 1997, he came across as sophisticated and knowledgeable about emerging markets investments and familiar with the jargon used by JA. He was in charge of the conversations, dictating their direction, and was domineering as well as, to some extent, opinionated. He never gave the impression of being a man out of his depth or unable to cope with the topics under discussion.

On many occasions AP's oral evidence flatly contradicted his written statements; on others, he wildly elaborated the evidence contained in his original witness statements in a wholly unconvincing way. Indeed, in certain instances, AP's evidence was considered by Gloster J to be demonstrably untrue, and he also felt able to give definitive evidence on matters on which he could not possibly have been in a position to do so.

On the other hand, the judge found no reason whatsoever to doubt the integrity of JA, either as a witness or in his capacity as a salesman. He was not unduly defensive, despite pressure put upon him by Springwell's allegations, and the judge found him to be an honest witness who did not pretend to remember things when he clearly had no recollection.

Conclusions About the Introduction of JA to AP/Springwell

Based upon the entirety of the evidence in relation to the introduction of JA to AP in late 1987/early 1988, Gloster J concluded that it went nowhere near to establishing Springwell's pleaded or argued case that the Private Bank or the Investment Bank had a contractual or tortious obligation to give general investment advice to Springwell in the extensive terms pleaded. The judge concluded that during the period 1988 to 1990, AP himself never for one moment thought that he had the benefit of an investment advisory relationship with the Shipping Department/Private Bank. Never at any stage during this period did AP receive a single report, document, review, analysis or other evidence of this supposed supervisory and advisory function.

The judge did not accept AP's or EM's evidence that JA was introduced or described in terms such as "an investment advisor" or as someone who would be giving the type of extensive advice alleged by Springwell. ECP was a relatively benign product, which was presented as an alternative, but akin to, time deposits. The brothers were experienced and sophisticated businessmen and did not need such an investment advisor. They had speculated extensively in foreign exchange without considering that they needed an advisor.

Nevertheless, the judge did find as a fact that JA made recommendations and in that sense advised AP what to buy, during the early period of selling ECP to Springwell. However, the judge concluded that right from the start, JA was understood by AP to be a salesman of a limited asset class. Indeed, AP himself described JA as a salesman in 1988, but "much more than a salesman in 1996 or 1997 or 1998", which was inconsistent with the assertion that JA had been introduced as a full-scale investment advisor. From 1990, when JA moved to what ultimately became IFI, AP knew JA's focus was in emerging markets and that that was the paper, and the only paper, he was selling.

The judge accepted Springwell's submission that even at this early stage, JA was not acting as an "execution-only" salesman (as JA himself accepted), in the sense of merely executing the trade and not giving advice. However, whilst the advice given by JA might indeed be termed investment advice, the judge did not consider the word "investment" to add anything of substance. Even if the word "advice" or "advisor" had been used by EM in the context of his introduction of JA, it could not reasonably have been understood by AP, at this early stage, to create an ongoing advisory relationship of the extensive nature alleged by Springwell.

All in all, the judge concluded that whilst it may have been the case, in all the circumstances, that a low-level duty of care would arise on the part of a salesman not to make any negligent misstatements, or even to use reasonable care not to recommend a highly risky investment without pointing that out, a low-level duty along such lines was "worlds away" from the wide duty of care pleaded by Springwell or relied upon as having arisen at this early stage. It was at the lower end of the spectrum, rather like the giving of an ad hoc piece of investment advice.

Therefore, the notion that in the context of the trading relationship at this early stage, as a result of the manner in which JA was introduced to AP, the Investment Bank and/or the Private Bank, by JA, had either an obligation to ascertain Springwell's investment criteria, or to give wide-ranging advice, for example, about portfolio diversification or concentration issues, or in relation to the general composition of the portfolio as a whole, was one that simply did not reflect the reality of the position.

Conclusions About the Role Discharged by JA in Practice

In regard to the role discharged by JA in practice, Gloster J concluded that in his capacity as a salesman, he did give investment advice, in the sense of personal recommendations to AP about what emerging markets investments Springwell should buy and sell and, in a very generalised way, about the state of and strategy for its emerging markets portfolio. However, at all times AP retained control over the decision making, and all decisions as to whether to initiate trades were taken by him on Springwell's behalf.

It was common ground that JA was a salesman of debt securities, employed by the Investment Bank to buy investments from and sell investments to Chase's customers, and that he was not employed as an investment advisor. Chase itself even described some of the telephone conversations between JA and AP as "long general investment review conversations", in which they reviewed together the emerging markets portfolio as a whole, or parts of it, in order to monitor performance, improve credit quality or formulate future investments proposals. Indeed, sometimes JA even gave advice to AP as to what he should do in regard to investment proposals from ML. However, Chase submitted that whilst salesmen frequently express their views and make recommendations, they do not thereby, and without more, assume advisory duties of care in respect of their opinions, let alone a more general positive duty to give advice. Furthermore, none of this did make, or could reasonably have made, AP think that JA was anything other than a salesman.

In cross-examination, JA accepted that it was part of his responsibility to have a hand in the shape of the portfolio, considering himself "a key constituent for the shape of [Springwell's] emerging markets portfolio". He accepted that he would look to give Springwell diversification whilst trying to keep within guidelines such as in terms of concentration of investment. He agreed that "[he] always had what was good for the client in . . . mind whenever [he] sold or bought anything for them".

JA's superiors did not agree that recommendations amounted to "investment advice". Although a salesman might provide market and price information, make recommendations and otherwise provide a "value-added" service to sophisticated clients, nevertheless clients would exercise their own judgment. Chase emphasised the substantive distinction between the role of a salesman and the role of an advisor within IFI by stating that no advisory service was provided and that Chase was not being paid for advice; it was a trading business, and an investment advisory service could not be offered by a salesman reading off a screen; an investment advisory service is an entirely different sort of service, more profound and extensive, and directed to a different goal.

So far as the term "execution-only" was concerned, Gloster J did not accept that even if Springwell could not be categorised as an execution-only customer (because it was receiving personal recommendations from JA), that did not necessarily mean that Chase owed advisory duties, with all the incidents of a fully fledged common-law duty of care. The issue for determination was not whether any particular transaction did or did not fit within a certain description given in the SFA Rules.

Conclusions About the Duty to Advise: Relevant Factors

Having considered in great detail the facts relating to the relationship between Springwell and Chase during the period 1990–1998, as well as extensive further evidence referred to in the parties' closing submissions, Gloster J concluded that neither the Private Bank nor the Investment Bank owed contractual or tortious obligations to Springwell to advise it as to appropriate investments or as to the structure of its portfolio, either in the wide terms alleged or otherwise.

The judge based her conclusions upon "arguably relevant" factors pointing to or against the existence of a duty to advise, and by reference to her conclusions on the arguments raised by the parties. The relevant lower-level factors that served as indicators of the non-existence of a contractual or tortious duty of care, involving matters of fact, were as follows:

The sophistication of AP/Springwell as an investor. The judge concluded that Springwell was a highly sophisticated investor, although its state of financial sophistication was not, in relative terms, comparable to that of Chase, as a major financial institution. Having already had more experience than most others in the emerging markets, in particular in Brazil, at a time when investment in emerging markets was in its infancy, AP rapidly acquired vast experience in the emerging markets asset class. He was at the forefront of emerging markets debt investments, acquiring personal and direct experience of the volatility in the markets, such as through the Tequila Crisis. By the mid-1990s, he was a hugely experienced and sophisticated emerging markets investor. Although he may not have had the appetite to trawl through research material sent to him by JA in any great detail, he certainly read some of it, if only superficially, from time to time and was always keenly aware of the commercial terms (price, yield, maturity date, etc.) of the investments that JA had on offer. He was definitely not an innocent abroad. Furthermore, the evidence relating to Springwell's dealings in emerging markets instruments with other banks and financial institutions, both before and after the Russian default, showed sophistication on the part of Springwell and the brothers. Springwell signed and accepted non-private customer letters with ML, prior to the signing of the 1997 DDCS letter with Chase. After the Russian default, Springwell and/or other Polemis group companies signed documentation with other financial institutions confirming their sophistication and experience. Likewise, those other banks and institutions characterised AP, Springwell and other Polemis companies as expert investors.

The absence of an advisory agreement. Gloster J considered that although the absence of a written advisory agreement between the Private Bank and Springwell did not of itself predicate that no free-standing duty of care to give appropriate investment advice, whether based in tort or contract, could have come into existence between the respective Chase entities and Springwell, it was a strong pointer against the existence of any such duty. If Chase had assumed a responsibility to provide investment advice, one would have expected not only that Chase would have defined the scope of its duties in a written document, but also that it would have put in place an appropriate and agreed fee structure for the investment management/advisory services it was providing. In addition, one would have expected the advice to have been provided to Springwell by an investment advisor rather than a salesman. Banking experts on each side agreed about the prevalence in practice of written advisory contracts.

The presence or absence of the indicia of an advisory relationship. Gloster J noted, in particular, as part of the general absence of any indicia of, or reference to, an advisory relationship, the fact that prior to commencement of any litigation against Chase, Springwell never asserted that it had an investment advisory agreement with Chase or that Chase had assumed obligations to give Springwell investment advice. No mention was made in correspondence following termination of the alleged advisory agreement in January 1999, and no complaint was made when Springwell was facing substantial mark-to-market losses in August/September 1998 in the aftermath of the Russian default that breaches of Chase investment advisory obligations had been the cause of Springwell's losses.

The actual role played by JA in the period 1990–1998. As Gloster J had already found, JA gave advice to Springwell during his many telephone conversations with AP. That advice variously took the form of recommendations, expressions of views and opinions as to the state of the market, the relevant merits of various investments, or as to what course Springwell should take, whether in relation to a particular investment (i.e., buy, sell or hold), or sometimes more generally. JA also went to great lengths to source and present investment opportunities to Springwell. However, JA's role did not change over time, regardless of the increasing frequency of his dealings with AP over the years, from one of a pure salesman to that of an investment advisor.

The advice given by JA over the entire period did not impose upon him or his employer, the Investment Bank, the duties of care or obligations of an investment advisor or asset manager, as Springwell contended. Gloster J considered there to be a real distinction between the investment advisor, properly so-called, who was retained to advise the client, usually backed by considerable research, such as in relation to the investments which a client should make, the structure of the investment portfolio, asset allocation and diversification, and the advice or recommendations given by a bonds salesperson such as JA as part of the selling process, who was actually trading and dealing with markets in a volatile environment that requires the salesperson to make decisions based on prices on screens many times a day.

Gloster J considered that whilst JA's recommendations influenced the make-up of Springwell's portfolio as it started to build up its investments in Russia, it was AP's desire for profit which drove the percentage of Russian investments in Springwell's portfolio towards 50 percent by August 1998.

Although the judge also accepted that AP "relied upon" JA to a considerable extent, such as for accurate prices, the availability of particular bonds or issues, and to effect AP's instructions to buy or sell instruments, AP was not a man who would blindly or docilely follow the view of someone else. He clearly valued JA's views and opinions and the process of talking things through with JA and frequently asked JA for his views. Indeed, AP made decisions which were in line with JA's views and recommendations. However, AP also ignored JA's views on many occasions and made decisions which went against JA's views. He did not "rubber stamp" JA's suggestions, but was clearly a man who made his own decisions. He had a dominating and manipulative personality and was a shrewd and sophisticated operator who, even if he did not have enthusiasm for the fine detail, showed himself to have a keen appreciation of the products' commercial terms and potential, whether for loss or for profit. He was well aware of the risks (and potential returns) that a market such as Russia might afford. He was also clearly well aware of the cost and impact of leveraging Springwell's portfolio under Chase's financing programmes and the difference between the terms on offer at Chase and at rival institutions such as ML.

All in all, the fact that a customer was taking a salesman's advice and recommendations into account in making decisions whether to buy, sell or retain investments, and in that sense relying upon them, did not predicate that a duty of care arose on the part of the salesman. Reliance on its own, even if established, did not necessarily give rise to an advisory relationship, with consequential duties of care.

Gloster J could not accept that AP ever understood JA to be Springwell's investment advisor. The reality was that AP and JA would communicate with each other when Springwell needed to buy or sell something, when investments were maturing and needed re-investment, or when JA wanted to sell something to Springwell. It was in that context that JA would advise AP. The absence of the indicia of any advisory relationship, referred to earlier, also supported the judge's views.

It is important to note that the judge made clear that she was not saying a duty of care and obligations to advise could never arise when a salesperson, in that capacity, made recommendations. Gloster J's conclusion was simply that in the circumstances of this case, the fact that JA, in his capacity as a salesman, may have been giving advice or expressing his views as to particular strategy or diversification within Springwell's emerging markets portfolio, or even making general comments as to the desirability of diversification of the portfolio outside that asset class upon which Springwell relied in reaching its decisions, did not amount to an assumption of responsibility on the part of the Investment Bank, so as to bring into play the full range of obligations of an investment advisor, as contended by Springwell.

A function of a salesman giving advice, recommendations and information, and in that sense providing a value-added service to clients who will then make their own decisions as to whether and what to buy or sell, is entirely consistent with the role not only of an emerging markets bond salesman in the financial world but, indeed, with that of any salesman in ordinary life⁹.

In conclusion, the judge decided that the actual role discharged by JA during the relevant period did not give rise to any obligation, whether contractual or based on a common-law duty of care, on the part of his employer, the Investment Bank, to advise Springwell in the extensive terms pleaded. Irrespective of the terms of the contractual documentation, she concluded nonetheless that the fact that JA was giving advice in his capacity as a salesman did not give rise to the extensive duties of care on the part of the Investment Bank alleged by Springwell. In fact, the judge found that the capacity in which JA was acting was a strong pointer against the assumption of any responsibility, or legal obligation, to give general investment advice.

So far as the Private Bank was concerned, it also did not have the extensive obligations and responsibilities to advise alleged by Springwell, simply by virtue of the fact that it provided Springwell with access to JA and the IFI sales department, or because the Private Bank allegedly had some sort of responsibility for the activities of JA and for the recommendations and advice that he was giving throughout the relevant period in his capacity as a salesman in the Investment Bank.

As a matter of law, the judge did not consider that the Private Bank had legal responsibility for the conduct of JA as an employee of the Investment Bank who, as AP well knew, worked in the Investment Bank and separately from the Private Bank.

The actual role of the Private Bank in the period 1990–1998 and AP's reliance upon it. Gloster J found that no free-standing obligation to advise (in the sense of an obligation that was separate from the activities of JA), whether in contract or based on a common-law duty of care, arose by virtue of the Private Bank's role as such, its actual conduct over the relevant period, or the circumstances with which it was faced, namely a client with an increasingly large exposure in emerging markets debt securities concentrated in Russia who was engaged in an extensive trading relationship with the Investment Bank.

A serious flaw in Springwell's case under this head was that it had never been clearly articulated. There was no clear identification of precisely what duties were owed at any particular time or the specific date upon which it was alleged that the Private Bank had assumed legal obligations to Springwell. Once again, irrespective of the terms of the relevant contractual documentation, the judge concluded that no duty of care arose from the circumstances relating to the role of the Private Bank.

So far as diversification proposals made by the Private Bank in the years 1996–1998 were concerned, the judge stated that it was "common ground" that these were made by way of marketing presentations, soliciting investments in specific products. They were not put forward as part of a strategy of diversification or in order to bring about a restructuring of Springwell's portfolio. On a full analysis of the evidence, Gloster J concluded that there was nothing in these diversification communications that could be characterised as an assumption by the Private Bank of the responsibility to give Springwell wide-ranging investment advice as to the structure of its portfolio, the need for diversification or asset allocation. In reality, Springwell had, of its own volition, with AP's increasing appetite for the substantial returns that investing in emerging markets afforded, adopted a strategy of concentration in emerging markets and, in particular, in Russian debt instruments. AP was, throughout, pointedly dismissive of the diversification proposals of the Private Bank.

In coming to the conclusion that no free-standing duty of care was owed by the Private Bank, the judge also took into consideration a handful of internal Chase documents in 1994 and 1995 that referred to Chase or the Private Bank as Springwell's "trusted financial advisor". The documents were generated by the Private Bank, not JA or anybody else within the Investment Bank. The judge was satisfied on the evidence that the term was used within the Private Bank for no real purpose other than as an internal marketing slogan for a short period of time. These documents were also wholly inconsistent with the terms of the formal contractual documentation which were unambiguous about the absence of advice or of any reliance by the customer on such advice.

Additional Factors Influencing the Judgment

There were clearly a number of other factors which influenced the judge's decision in relation to duty of care, whether expressly stated by the judge or to be inferred by obvious inference, as follows:

• Gloster J stated that in addition to the arguably relevant factors pointing to or against the existence of a duty to advise summarised above, she had been influenced by the terms of the contractual documentation (e.g., the MFA, the GMRA, the DDCS letters and trade confirmations), which incorporated a number of exclusions, disclaimers and representations such as to non‑reliance. Although the judge expressed opinions based upon the relevant factors in isolation, there is no doubt that her conclusions were affected by the contractual documentation, which will be considered in Part 2. It is important to note, however, the judge's statement that even if she were wrong in her conclusion based upon JA's actual role over the period 1990–1998, and the fact that JA was giving recommendations and advice to Springwell, the relevant terms of the contractual documents would have precluded an assumption of responsibility on the part of both the Investment Bank and the Private Bank.
• The "serious flaw" in Springwell's case in respect of the role of the Private Bank and AP's reliance upon the Private Bank due to the focus of its case shifting over the course of the trial, and its failure to identify a date when the Private Bank assumed the responsibility to advise (see above).
• Gloster J's view that Springwell's pleaded investment objectives and its alleged attitude to risk were the "construct of fantasy which bore no relation to reality". Furthermore, in regard to the suggestion that high-quality corporate bonds or gilts would have generated a sufficient return to be of interest to AP the judge found this to be "fanciful". There were other aspects of AP's evidence which the judge found to be unsatisfactory, such as his evidence that had he refused to sign the MFA, he would have moved Springwell's account to the Chase Private Bank in Geneva. Gloster J considered this evidence to be "approaching fantasy" and "unreal".
• Springwell's original case was, according to Gloster J, an exaggerated and wholly incredible case, to the effect that it had two investment requirements, namely capital preservation and liquidity. Gloster J considered this to be fanciful, bearing in mind that it had invested enormous sums aggressively and on a leveraged basis in the emerging markets for the best part of a decade and continued to do so whenever possible even after the Russian default. Some eight years after the Russian default, in 2006, Springwell changed its case. It alleged that as the relationship with JA developed and as he came to trust JA, AP became willing "as a result of JA's failure to explain, and misrepresentation of, the risks involved" to invest part of the portfolio in investments which "were also subject to a risk of fluctuation". However, it remained his objective not to run any "appreciable risks" that the capital value might be reduced.
• The fact that Springwell's complaint against Chase was first brought in the United States, in December 1999, on the grounds of fraud and negligent advice. The claim was dismissed on jurisdictional grounds and all appeals were refused before Chase commenced the English proceedings on 9 April 2001. Nevertheless, Chase persisted for six years with allegations that Chase had acted dishonestly for about a year in mis-selling Russian investments, knowing them to be unsuitable, and only abandoned these allegations of fraud and dishonesty shortly before trial.
• Despite the fact that Springwell dropped allegations of dishonesty against JA before the trial, it maintained a parallel allegation that JA had acted in breach of fiduciary duty, in particular, in consciously taking advantage of AP, when selling instruments to Springwell between October 1997 and 1998. Springwell pursued the most wide-ranging allegations of negligence and negligent misrepresentation against JA and subjected him to a very searching examination of his conduct, his approach, his integrity and his professionalism.

Comment

This is a cogent judgment when considering the duty of care in isolation from the contractual documentation entered into between the parties. However, the judge's statement that the salesman owed "low-level" duties of care, her suggestion that she might be wrong in her decision, and her acknowledgment that the matter generally might go to appeal serve to cast a spotlight upon certain features of the judgment.

It is fair to say that Springwell set a high bar for itself in, it seems, contending that Chase had agreed to provide or had assumed a responsibility for the full range of obligations of an investment advisor. Furthermore, the very fact that it changed its case in fundamental respects during trial is likely to have weakened the force of its arguments. Nevertheless, in the context of three broad competing tests for establishing a duty of care, including one (incrementalism) which remains vague, there might be limited scope for argument as to a duty of care in respect of the make-up of the portfolio, given the advice and recommendations made by JA. On the other hand, the lack of an advisory agreement, the absence of a fee structure, and the extent to which AP made his own decisions present strong counter-arguments.

Certain features of the first judgment, which would be interesting subjects for future debate if the matter were to go further, include the following.

Foreign exchange speculation. In circumstances where customers have embarked upon speculative and risky transactions, even in cases where advice has been given by a financial practitioner, the Court has been reluctant to impose a duty of care (see Stafford v. Conti Commodity Services Ltd [1981] 1 All ER 691; Merrill Lynch Futures Inc. v. York House Trading Ltd and Anor (1984) (unreported)). In Springwell, however, the judge appears to have formed the impression that the brothers were prone to speculation, without any real summary of the underlying evidence, unlike other aspects of her factual analysis.

"Execution-only". Having accepted Springwell's submission that even in the early stages of the relationship JA was not acting as an "execution-only" salesman in the sense of merely executing the trade and not giving advice, and having considered the regulatory background to be one of the relevant factors that served as indicators of the existence of a duty of care, the judge concluded that the true meaning of "execution-only" was of little utility and ultimately went only to the technical point of regulatory classification. This would appear to cause tension with the judge's findings in relation to the DDCS letters, which were also for the purposes of regulatory classification. The terms of the DDCS letters will be considered in Part 2 and the regulatory framework in Part 4.

Regulatory background. In the context of the regulatory background generally, having considered this to be one of the "lower-level" factors serving as an indicator of the existence or otherwise of a duty of care, the judge concluded that the regulatory background did not significantly impact on her analysis of the relationship between Chase and Springwell and the issue as to whether Chase owed Springwell investment advisory obligations. Once again there would seem to be some tension in the judge's conclusions, which highlights the question of whether the process of regulatory classification and the status of "non-private customer" preclude any common-law duties of care.

Conclusions in respect of 1990–1994. In the summary of her conclusions in respect of the period 1990–1994, the judge mentions a significant number of new matters for the first time. This in itself highlights the fact that the judgment does not disclose all of the relevant facts but more perhaps a preponderance of facts supporting the arguments with which the judge found favour.

Chase's attempts in relation to diversification. The judge concluded that there was nothing in the diversification communications from March 1996 between Chase and Springwell that could be characterised as an assumption by the Private Bank of the responsibility to give Springwell wide-ranging investment advice as to the structure of its portfolio, the need for diversification or asset allocation. In effect, the judge agreed with Chase that its proposals were nothing more than marketing pitches. However, whilst the judge's conclusion appears to be based upon the fact that this was common ground between the parties, there is no mention of this being common ground in the detailed analysis in the judgment. As a result, the precise basis for the judge's conclusion is unclear.

"Trusted financial advisor". Similarly, the basis for the judge's conclusion that the use of the term "trusted financial advisor" in Chase documents in 1994 and 1995 represented nothing other than an internal marketing slogan for a short period of time is not clear. Indeed, it seems that the judge's ultimate conclusion was actually based upon the fact that these documents were considered by her to be inconsistent with the terms of the formal contractual documentation.

Footnote

^{9.See Riggs AP Bank Limited v Eurocopy (GB) Ltd (1998) Ch D (6 November 1998) (unreported) (Hart J), as an instructive example.}

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