In the text below, please read "Business Marketing Agent" instead of "Bank" - it may help your defence.
The less sophisticated the investor is, the higher the duty of care of the bank (even in the making of opinions). Banks should continue the good practice of determining the investment criteria and risk profiles of investors, disclosing all risk factors, pointing out the level of risk, avoiding any sales ‘puffs’ and advising investors to seek independent financial, legal, accounting or tax advice particularly for less sophisticated investors.
Parties are entitled to contractually agree to any terms including the basis upon which the contract is being entered into even if the factual circumstances were actually different.
Non-reliance provisions in contracts (e.g. non-reliance on representations) remain effective. There is no further requirement of “unconscionability”. However, such provisions may be subject to the reasonableness regime under UCTA and may be void if found to be unfair. When determining whether a term is unfair, the court will look at various factors including the level of knowledge and sophistication of the investor.