Category: Banking

Office of Fair Trading v Abbey National Plc and others: ComC 8 Oct 2008

The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties.
References: [2008] EWHC 2325 (Comm)
Links: Bailii
Judges: Andrew Smith J
Jurisdiction: England and Wales
This case cites:

  • See Also – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008 (, [2008] EWHC 875 (Comm), Times 29-Apr-08, Gazette 08-May-05, [2008] 2 All ER (Comm) 625)
    The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
  • Cited – Wallersteiner v Moir CA 1974 ([1974] 1 WLR 991)
    The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
  • Cited – Cooden Engineering Co Ltd v Stanford CA 1953 ([1953] 1 QB 86, [1952] 2 All ER 915)
    A payment to be made on a wrongful termination of a lease by a tenant, will attract consideration of the law of penalties, for notwithstanding the requirement for acceptance of it, the amount to be paid is, ‘plainly a sum to be paid in consequence . .
  • Cited – Jervis v Harris CA 9-Nov-1995 (Ind Summary 04-Dec-95, Gazette 24-Jan-96, Times 14-Nov-95, , [1995] EWCA Civ 9, [1996] Ch 195, [1996] 2 WLR 220, [1996] 1 All ER 303, [1996] 1 EGLR 78, [1996] 10 EG 159)
    A provision in the lease obliged a tenant to carry out repairs and provided that if he did not do so, the landlord might do the repairs and recover from the tenant the costs and expenses of doing so.
    Held: The provision was not a penalty. The . .

This case is cited by:

  • See Also – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009 (, [2009] EWCA Civ 116, Times 03-Mar-09, [2009] 2 CMLR 30, [2009] 1 All ER (Comm) 1097, [2009] 2 WLR 1286)
    The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
  • See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009 (, [2009] EWHC 36 (Comm))
    . .
  • See also – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009 (, [2009] UKSC 6, Times 26-Nov-09, [2009] 3 WLR 1215)
    The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.277032

Marley v Mutual Security Merchant Bank: PC 1991

References: [1991] 3 All ER 198
Ratio: BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
This case is cited by:

(This list may be incomplete)

Last Update: 18 February 2017
Ref: 183444

Hare v Edwin Henty And George Henty; 7 May 1861

References: [1861] EngR 575, (1861) 10 CB NS 65, (1861) 142 ER 374
Links: Commonlii
Ratio A country banker receiving from a customer a cheue for presentment drawn upon
another country banker not resident in the same town, is not bound to transmit it for presentment by the post of the day on which he receives it, but has until post-time of the next day for so doing. A, a banker at Worthing received from B a
customer, a cheque drawn upon C., a banker at Lewes (which is distant about eighteen miles from Worthing) on the morning of Friday, the 8th of July, and sent it that evening by post to his London correspondent, D for presentment tthrough the ‘ country clearing house,’ then recently established, but in pretty general use among country bankers. D’s clerk handed the cheque at the clearing house on the morning of Saturday, the 9th, to the clerk of E, the London correspondent of C. (the drawee), who sent it down by the post of that evening to C, :-
Held, that the presentment was in due time.
This case is cited by:

  • Cited – Barclays Bank plc -v- Bank of England ComC ([1985] 1 All ER 385)
    Sitting as an arbitrator, the court had to determine the time and place at which a bank presenting a cheque for payment through the clearing system was discharged of its responsibility towards its customer. It was contended for the respondent that . .

(This list may be incomplete)

Last Update: 22-Mar-16
Ref: 284336

FG Hemisphere Associates LLC v Democratic Republic of Congo; 10 Feb 2010

References: [2010] HKCA 19, [2010] 2 HKLRD 66, [2010] 2 HKC 487
Links: HKLii
Hong Kong Court of Appeal
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Connecticut Bank of Commerce v Republic of Congo; 29 Aug 2002

References: [2002] 309 F3d 240
Links: Worldlii
Coram: Emilio M Garza
(United States Court of Appeals, Fifth Circuit) Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement. It obtained a default judgment in New York in relation to the London judgment debt. The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo. The debts constituted various royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congo’s oil.
Held: The debts due from the oil companies were not ‘property . . used for a commercial activity’ within the meaning of section 1610(a). Judge Garza, for the majority said: ‘The phrase ‘used for’ on its face denotes something different and more specific than the phrases ‘integral to’ or ‘necessary to’. It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as ‘related to’ or ‘contemplated by.”
Judge Garza said: ‘What matters under the statute is what the property is ‘used for’, not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not ‘used for’ a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congo’s joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a ‘commercial activity in the United States’. This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are ‘used for’, not on how they were raised.’
He added: ‘The phrase ‘used for’ in section 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the ‘use’ of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States. The statute means what it says: property of a foreign sovereign . . may be executed against only if it is ‘used for’ a commercial activity. That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution.
. . To use property for a commercial activity, within the ordinary meaning of ‘use’, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property. Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity. In ordinary usage, we would not say that the revenue from a transaction is ‘used for’ that transaction.’
He referred to the Act, noting the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings ‘relating to’ a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must ‘for the time being’ be ‘in use or intended for use for a commercial purpose’. He concluded that the Act parallels the FSIA on the footing that: ‘it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the ‘use’ of the property.’
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Cook And Another v Lister; 19 Jan 1863

References: [1863] EngR 154, (1863) 13 CB NS 543, (1863) 143 ER 215, (1863) 1 New Rep 280, (1863) LJCP 121, (1863) 7 LT 712
Links: Commonlii
Coram: Willes J
Three parties including the defendant had drawn bills against each other, which bills came to the plaintiff as bona fide holder for value indorsee. Various sums had been paid on account, and the plaintiff sued the defendant but giving him credit only for the sums he had paid, saying that any excess would be held for the use of the drawers. The defendant offered to pay the sums he owed and the balance outsanding under all the bills, but no more, and paid that sum into court.
Held: Though the bills were not accomodation bills as such, the defendant could not be called on to pay the sum already paid again.
This case is cited by:

  • Cited – Hirachand Punamchand -v- Temple CA ([1911] 2 KB 11, [1911] 2 KB 330)
    The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .

Rolin And Another v Steward, Public Officer of The East of England Bank; 8 May 1854

References: [1854] EngR 492, (1854) 14 CB 595, (1854) 139 ER 245
Links: Commonlii
Substantial damages may be recovered against a banker, for dishonouring an acceptance and cheques of a customer, there being sufficient assets in his hands at the time to meet them.
This case is cited by:

  • Followed – Wilson -v- United Counties Bank Ltd HL ([1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102)
    Major Wilson had left England on active service soon after the beginning of the great war, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .

Dublin Port and Docks Board v Bank of Ireland; 22 Jul 1976

References: [1976] IR 118
Links: Bailii
Coram: Griffin J
(Supreme Court of Ireland) The court discussed a bank’s obligation to process cheques issued by its customers: ‘a banker should pay his customers’ cheques in the order in which they are presented, subject to the interest of the customer being taken into account’.
This case is cited by:

  • Cited – Office of Fair Trading -v- Abbey National Plc & seven Others ComC (Bailii, [2008] EWHC 875 (Comm), Times 29-Apr-08, Gazette 08-May-05)
    The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Scott v Gillmore; 6 Jul 1810

References: [1810] EngR 393, (1810) 3 Taunt 226, (1810) 128 ER 90 (A)
Links: Commonlii
A bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value, is totally void, though part of the consideration was money lent -The statute 24 G. 2, c. 40, s. 12, making illegal the sale of spirits in less quantities than to 20s. value, unless paid for, extends to spirits mixed with water.
This case is cited by:

  • Cited – Fielding & Platt Ltd -v- Selim Najjar CA ((1969) 113 Sol Jo 160, [1969] 1 WLR 357, [1969] 2 All ER 150)
    The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the . .

Powney v Blomberg; 11 Jul 1844

References: [1844] EngR 772, (1844) 14 Sim 179, (1844) 60 ER 325
Links: Commonlii
A. executed B bond and mortgage to B. to secure £2,000 lent to him by B., with interest at 5%.
B having sold out a sum of stock to enable her to make the loan, the dividends of which exceeded the interest of the £2000 at £5 per cent., A. afterwards agreed, in consideration of her Ietting the £2000 continue secured at interest as aforesaid, to transfer to her, when requested so to do, the amount of the stock sold out, or, at her option, to pay to her a sum of money sufficient to repurchase it, and, in the meantime, to pay to her the amount of the dividends of it, intstead of the interest of the £2000.
Held, that the agreement was additional to and not substitutional for the bond and mortgage, and was, therefore, usurious.

Robarts And Others v Tucker; 1 Feb 1851

References: [1851] EngR 208, (1851) 16 QB 560, (1851) 117 ER 994
Links: Commonlii
This case is cited by:

  • Cited – Bank of England -v- Vagliano Brothers ([1891] AC 107, (1891) 60 LJQB 145, (1891) 7 TLR 333)
    The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
    Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations . .

Miles v Pope; 9 Dec 1847

References: [1847] EngR 1002, (1847) 5 CB 294, (1847) 136 ER 890
Links: Commonlii
A plea alleging that the defendant obtained a final order for protection and distribution, under the 7 & 8 Vict. c. 96, is not proved by the production of a mere order for personal protection under the 28th section of that statute