Hamish Fletcher: Out-of-court deals feel like a cop-out

File photo / NZ Herald

Out-of-court settlements may be cheaper, quicker and more certain than seeing a case through - but they can often feel like a cop-out.

That's particularly so when one of the parties is a regulator like the Commerce Commission.

The latest deal cut by the commission is over Westpac's marketing of interest rate swaps, a complex financial derivative product that allow borrowers to managing their interest rate exposure. Banks negotiated these swaps between 2005 and 2009 and it's believed about 1500 farmers bought them.

In 2012, the commission began investigating whether the swaps were misleadingly marketed and in 2013 it said it expected to file legal action against ANZ, ASB and Westpac over their sale.

The regulator has since settled with all three banks, in what is likely the last we will hear on the matter.

Commission chairman Mark Berry said the Westpac settlement avoided the uncertainty of "lengthy court proceedings" and meant farmers would not have to go through the stress of proving losses that could have occurred up to 10 years ago.

That may well be so, but in settling with the banks the commission has deprived the public of a judge's authoritative verdict on what took place during this sorry saga.

It also means the extent of any potential wrongdoing by some of the country's biggest financial institutions and their liability for any losses remains untested in court.

Indeed, while the commission came to numerous conclusions about Westpac's behaviour and the specific ways it believed it was misleading, the bank denied it all.

Westpac, instead, made a narrow admission that it breached the Fair Trading Act because certain conduct was likely to have misled or deceived some customers. Despite paying up $2.97 million, Westpac does not admit customers suffered loss or damage from this conduct.

Some farmers who banked with Westpac will have already made up their minds. The rest of us, though, now don't have that opportunity.