Category: Banking

Esal Commodities v Oriental Credit Ltd: CA 1985

The parties disputed whether a letter was a performance bond or a guarantee. The words of the instrument were: ‘We undertake to pay the said amount on your written demand in the event that the supplier fails to execute the contract in perfect performance’
Held: The bond was payable on demand despite the fact that it referred to the supplier’s failure to perform the underlying contract about which there was a dispute. The fact that an instrument makes reference to the contractual performance for which it is security and the circumstances which constitute default does not prevent it being a demand guarantee or performance bond.
Ackner LJ said: ‘If the performance bond was so conditional, then unless there was clear evidence that the seller admitted that he was in breach of the contract of sale, payment could never safely be made by the bank except on a judgment of a court of competent jurisdiction and this result would be wholly inconsistent with the entire object of the transaction, namely to enable the beneficiary to obtain prompt and certain payment.’

Judges:

Ackner LJ

Citations:

[1985] 2 Lloyd’s Rep 546

Jurisdiction:

England and Wales

Cited by:

Cited – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others CA 6-Dec-2001
The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in . .
Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Cited – Rainy Sky SA and Others v Kookmin Bank ComC 29-Oct-2009
The claimants sought summary judgment under an advance payment bond issued by the defendants in connection with certain shipbuilding contracts. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 19 May 2022; Ref: scu.225897

Price Meats Ltd v Barclays Bank Plc: ChD 30 Nov 1999

Although a customer always had a clear duty to inform its bankers of any forgery of which it was aware insofar as it related to dealings with the bank, that duty did not operate when the knowledge of the customer was only constructive and not actual. In this case the bank had become concerned and had warned the customer of the need to enquire as to the history of transactions, but such warning did not create an actual knowledge on the customers part of the reality of forgery eventually discovered.

Citations:

Times 19-Jan-2000, [1999] EWHC Ch 190

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Consumer

Updated: 19 May 2022; Ref: scu.85035

Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead: CA 19 Apr 2000

A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was paid into court, but the appeal was compromised in her favour. The judge ordered payment out to her opponent, to satisfy earlier unsatisfied costs orders. Her request for leave to appeal succeeded. The trust was as between her and the bank, and no need of others being notified arose. As trustee for the bank, she had a duty to act to recover it, and so had locus standi.

Citations:

Times 02-May-2000, [2000] EWCA Civ 138

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Common Professional Examination Board ex parte Sally Mealing-Mcleod Admn 4-Nov-1997
The claimant challenged decisions taken as to the extension of time to allow her to pass the Common Professional Examination to become a member of the Bar. An application had some time before made for an oder under the 1981 Act. There was no taint . .
See Also – Regina v ex parte Mealing-Mcleod CA 18-Feb-1999
Formal order acknowledging settlement in favour of the applicant. . .
See Also – Regina v Common Professional Examination Board (ex parte Sally Mealing Mcleod) Admn 19-Apr-1999
. .
See Also – Regina v Common Professional Examination Board ex parte Mealing-Mcleod CA 21-Apr-1999
. .
Appeal from – Mcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
Cited – Johnson v Valks CA 23-Nov-1999
A person requiring leave to issue proceedings as a vexatious litigant, had also to obtain leave again before entering an appeal to the Court of Appeal. The entering of an appeal is either the institution of new proceedings, or an application . .
Cited – Brereton v Edwards 1888
Money in the control of the Court may be the subject of execution with the leave of the Court. The Judgments Acts did not apply to money held in Court. Lord Esher MR said: ‘section 14 does not apply to money . . it applies only to Government stock, . .
Cited – In re Prior CA 1921
The court considered its equitable powers over funds it held as security. The court ordered equitable execution. . .
Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
Cited – London County Council v Monks 1958
Danckwerts J considered the powers of the court over money paid in as security: ‘The real basis of those cases seems . . to be that where the court has the fund under its own control, as in the case of a fund standing to the credit to some account . .

Cited by:

Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Banking

Updated: 19 May 2022; Ref: scu.85198

National Westminster Bank Plc v Story and Another: CA 7 May 1999

The court asked whether a series of smaller loans were governed by the 1974 Act. Three facilities had been provided under one loan agreement. 2 loans were held to be for unrestricted-use credit.
Held: Three credit agreements separately signed, but part and parcel of the same transaction counted as one aggregate transaction to determine whether or not any one of them was an agreement regulated under the Consumer Credit Act.
Auld LJ gave obiter guidance at on the application of section 18. The meaning of ‘part’ was not limited to a facility whose terms differed from another facility under the same agreement, but could include a separate facility under an agreement where the debtors’ use, or non-use, of it did not affect the contractual nature of the agreement as a whole, in particular, his entitlement to use those other facilities. ‘The main purpose of section 18 is to prevent frustration of the Act’s protection to borrowers by the artificial combination of two or more agreements in one so as to take the total credit negotiated above the limit qualifying for protection.’ and ‘Whatever the uncertainties as to the meanings of ‘part’ and ‘category’ of agreement under section 18, they do not require resolution in this case. My inclination, without formally deciding the matter, is that the word ‘part’ in this context includes, but is not restricted to, a facility that is different as to some of its terms from another facility granted under the same agreement or one that can stand on its own as a separate contract or bargain. However, I believe that it would accord with the ordinary and natural use of the word for it to have a broader application so as to include, as here, a separate facility provided with others under an agreement where, even if the facility as a contractual entitlement does not stand on its own, the debtor’s use, or non-use, of it does not affect the contractual nature of the agreement as a whole, in particular, his entitlement to use those other facilities.’

Judges:

Auld LJ, Lord Woolf MR and Robert Walker LJ

Citations:

Times 14-May-1999, Gazette 19-May-1999, [1999] EWCA Civ 1361, [1999] CCLR 70

Links:

Bailii

Statutes:

Consumer Credit Act 1974 18

Jurisdiction:

England and Wales

Cited by:

Cited – Heath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
Cited – Southern Pacific Mortgage Ltd v Heath CA 5-Nov-2009
The court considered the effect of an agreement within the 1974 Act falling into more than one category of agreement. Part was used to be used for the repayment of an existing mortgage (restricted use credit), and part was unrestricted. The question . .
Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 19 May 2022; Ref: scu.84222

First National Bank Plc v Walker and Another: CA 23 Nov 2000

A claim that a bank’s charge should be set aside as having been obtained by the undue influence of a co-mortgagee was parasitic upon a claim as between the co-mortgagors in family proceedings. The wife sought as against the bank to challenge the validity of the charge, but asserted the existence of the charge in the course of proceedings which continued in parallel to the possession proceedings. She could not blow hot and cold. The claim against the husband and subsequent transfer had included an explicit acknowledgement by her of the charge, and that decided the issue between her and the bank.

Citations:

Times 13-Feb-2001, [2000] EWCA Civ 3015, [2001] 1 FCR 21, [2001] 1 FLR 505, [2001] Fam Law 182

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Skanska Construction Services Ltd QBD 29-Jul-2008
The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Family, Banking, Land

Updated: 19 May 2022; Ref: scu.80561

Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation): PC 23 May 1996

(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the claimant’s authority. Mr Haddon was the brother of Mrs Goss. The advance from the claimant having been made available to Mr and Mrs Goss, it was as agreed between them and Mr Haddon in fact received by Mr Haddon. Mr and Mrs Goss took no security from Mr Haddon. Mr Haddon was unable to repay the advance. Mr and Mrs Goss argued that their inability to recover the money from Mr Haddon constituted a defence of change of position to the claimant’s action for restitution of the money paid for a consideration that had totally failed.
Held: The loan remained repayable despite the unenforceability of the mortgage instrument under which it was secured. The defence failed because Mr and Mrs Goss knew that the money lent would have to be repaid to the claimant and, in paying it to Mr Haddon, they had taken the risk that the loss would fall on them.
Lord Goff said: ‘From the beginning, the Defendants were under an obligation to repay the advance once it had been paid to them or to their order; and this obligation was of course unaffected by the fact that they had allowed the money to be paid over to Mr Haddon. The effect of the alteration of the mortgage instrument was that their contractual obligation to repay the money was discharged; but they had nevertheless been enriched by the receipt of the money, and prima facie were liable in restitution to restore it. They had however allowed the money to be paid over to Mr Haddon in circumstances in which, as they well knew, the money would nevertheless have to be repaid to the company. They had, therefore, in allowing the money to be paid to Mr Haddon, deliberately taken the risk that he would be unable to repay the money, in which event they themselves would have to repay it without recourse to him. Since any action by them against Mr Haddon would now be fruitless they are seeking, by invoking the defence of change of position, to shift that loss onto the company. This, in their Lordships’ opinion, they cannot do. The fact that they cannot now obtain reimbursement from Mr Haddon does not, in the circumstances of the present case, render it inequitable for them to be required to make restitution to the company in respect of the enrichment which they have received at the company’s expense.’

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon

Citations:

Gazette 12-Jun-1996, Times 06-Jun-1996, [1996] UKPC 17, [1996] AC 788

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Davidson, Public Officer, &Amp;C v Cooper And Another 6-Jul-1844
. .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
Cited – David Securities Pty Ltd v Commonwealth Bank of Australia 7-Oct-1992
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position. . .

Cited by:

Cited – Kommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth, Equity

Updated: 19 May 2022; Ref: scu.80939

Director General of Fair Trading v First National Bank Plc: CA 15 Sep 1999

A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by instalments without the court having the opportunity to judge the level of such payments. The bank undertook to add information about the procedure and no injunction was given to prevent it relying upon the clause.
‘It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum.’

Judges:

Peter Gibson, Waller and Buxton LJJ

Citations:

Times 21-Sep-1999, Gazette 15-Sep-1999, Gazette 17-Feb-2000, Times 14-Mar-2000, [2000] EWCA Civ 27, [2000] QB 672

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contracts Regulations 1994 (1994 No 3159)

Jurisdiction:

England and Wales

Citing:

Appeal from – Director General of Fair Trading v First National Bank Plc ChD 30-Jul-1999
The claimants sought an injunction under the regulations to prevent the defendant bank from including in any of its agreements a clause allowing them to claim interest on judgments on regulated agreements. . .
Cited – In re Sneyd; Ex parte Fewings CA 1883
The mortgagee’s costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the . .
Cited – Ealing London Borough Council v El Isaac CA 1980
Templeman LJ said: ‘I do not for myself understand how a debt payable with interest until actual repayment can be merged in a judgment without interest or with a different rate of interest payable thereafter.’ . .
Cited – Bank of Scotland v Davis SCS 1982
A bank’s borrower’s covenant to pay interest is ordinarily to be taken to continue until the full sum of principal is repaid, after as before judgment. An appeal was allowed from the order of the sheriff in an undefended action for repayment of a . .

Cited by:

Appeal from – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 19 May 2022; Ref: scu.79974

Depositors’ Protection Board v Dalia: HL 20 May 1994

The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to equitable assignees of deposits. Such assignees are not depositors within the meaning of the scheme. Lord Browne-Wilkinson said that regulations could only be used an aid to construction where the regulations are roughly contemporaneous with the Act being construed.
After a legal assignment only the assignee can be said to have any entitlement against the Defendant.

Judges:

Lord Browne-Wilkinson

Citations:

Times 20-May-1994, Gazette 29-Jun-1994, Independent 31-May-1994, [1994] 2 AC 367, [1994] 2 AC 367

Statutes:

Banking Act 1987 58(1)

Citing:

Appeal from – Depositors’ Protection Board v Dalia and Another CA 11-May-1993
The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims. . .
At First Instance – Depositors Protection Board v Dalia and Another ChD 18-Nov-1992
Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners. . .

Cited by:

Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Revenue and Customs v Forde and McHugh Ltd SC 26-Feb-2014
The Court heard a number of appeals concerned with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, ‘[w]here in any tax week earnings are paid to or for the benefit of an earner’ It was . .
Lists of cited by and citing cases may be incomplete.

Banking, Financial Services

Updated: 19 May 2022; Ref: scu.79916

Depositors Protection Board v Dalia and Another: ChD 18 Nov 1992

Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners.

Citations:

Gazette 18-Nov-1992

Statutes:

Banking Act 1987 59(1)(a)

Cited by:

Appeal from – Depositors’ Protection Board v Dalia and Another CA 11-May-1993
The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims. . .
At First Instance – Depositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Financial Services

Updated: 19 May 2022; Ref: scu.79917

Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc: CA 18 May 2000

The bank received a garnishee order nisi, but acted before it was made absolute to pay the judgment creditor.
Held: The bank had no defence against the customer claiming restitution relying on the equitable doctrine that one person paying the debts of another without authority was allowed the benefit of the payment. To establish that, the bank would have to show that the act had been subsequently ratified, or that it had been made on his behalf. The mere absence of loss to the customer is insufficient.
‘ in the absence of authorisation or ratification by the company of the bank’s payment to the third party, the ‘mere fact’ that the bank’s payment enured to the benefit of the company does not establish an equity in favour of the bank against the company.’

Citations:

Times 24-Apr-2000, Gazette 18-May-2000, [2000] EWCA Civ 127, [2000] QB 917, [2000] 4 All ER 473, [2000] 3 WLR 877

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Limited – CB Liggett (Liverpool) Limited v Barclays Bank Limited 1928
The defendant bank had paid cheques drawn on the plaintiff’s account in breach of a mandate requiring two signatories. The plaintiff brought an action for money had and received.
Held: The action failed. The bank was entitled to the benefit of . .

Cited by:

See Also – Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc CA 2002
A payment made by a person without compulsion, intending to discharge another’s debt, will not discharge that debt unless he acted with that other’s authority or if that other subsequently ratifies the payment. . .
Cited – Earles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Equity

Updated: 19 May 2022; Ref: scu.79598

Kenny v Conroy and Another: CA 27 Jan 1999

A court need only first see whether at the time of the loan, the party’s business was that of moneylender. If not, the court then investigates if the person held themselves out as carrying on such a business. Kennedy L.J: ‘. . . a licensed moneylender who sets up business with an office probably falls within section 6 of the Act of 1900 when he makes his first loan, even if he never makes another, because at the time when that loan was made his business was that of moneylending.’ Although the word ‘business’ may often denote a degree of repetition and continuity, it need not always do so.

Judges:

Kennedy LJ

Citations:

Times 27-Jan-1999, Gazette 17-Feb-1999, [1999] EWCA Civ 639, [1999] 1 WLR 1340

Links:

Bailii

Statutes:

Moneylenders Act 1900 6

Jurisdiction:

England and Wales

Citing:

Cited – Litchfield v Dreyfus 1906
The plaintiff carried on business as an antique dealer, giving credit to customers and took bills from them in payment of amounts they owed for purchases, some of which he discounted and renewed from time to time. When he ceased business he sold his . .
Cited – Kirkwood v Gadd HL 1910
Under the 1900 Act, a moneylender was required to carry on his business only in his registered name and at his registered address.
Held: (Lord Atkinson) the words ‘carries on business’ implied a repetition of acts, and ‘Whether one isolated . .
Cited – Newman v Oughton 1911
The plaintiff sought to execute a judgment against goods in the possession of a judgment debtor. The goods were claimed by a firm of pawnbrokers who said that they were included in a bill of sale granted to them. At the trial of the resulting . .
Cited – Stevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .

Cited by:

Cited – GE Capital Bank Ltd v Rushton and Another CA 14-Dec-2005
The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now . .
Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 19 May 2022; Ref: scu.79460

Coutts and Co v Stock: ChD 24 Nov 1999

Where an ailing company continued to trade, section 127 operated as between the company and its directors and creditors, and not so as to invalidate payments made by the company’s bank on cheques drawn before the date of presentation of the petition, and honoured before the date of the winding up order. Accordingly when an overdraft arose as a result of such payments, a person guaranteeing the company’s overdraft remained liable for the result.
The acts of a Bank in honouring cheques drawn on an insolvent company’s overdrawn account were a loan by the Bank to the company, but not a disposition of the company’s property. Section 127 ‘does not invalidate a company’s assumption of liabilities’.

Judges:

Lightman J

Citations:

Times 30-Nov-1999, Gazette 17-Dec-1999, [1999] EWHC Ch 191, [2000] 1 WLR 906

Links:

Bailii

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Company, Insolvency, Banking

Updated: 19 May 2022; Ref: scu.79572

CIBC Mortgages Plc v Pitt and Another: HL 21 Oct 1993

Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to the existence of undue influence only because a loan was to be made in joint names. It must have some actual notice of that undue influence. In cases of undue influence disadvantage is not a necessary ingredient of the cause of action. It is not essential that the transaction should be disadvantageous to the pressurised or influenced person in any way. A balance is to be found between the protection of a wife from improper pressure, and the need for banks to have predictable consequences of making secured loans. ‘What, then, was known to the plaintiff that could put it on inquiry so as to fix it with constructive notice? So far as the plaintiff was aware, the transaction consisted of a loan to husband and wife to finance the discharge of an existing mortgage on [the matrimonial home], and as to the balance to be applied in buying a holiday home. The loan was advanced to husband and wife jointly. There was nothing to indicate to the plaintiff that this was anything other than a normal advance to husband and wife for their joint benefit.’

Judges:

Lord Browne-Wilkinson

Citations:

Gazette 17-Dec-1993, Independent 22-Oct-1993, Times 22-Oct-1993, [1994] 1 AC 200, [1993] 3 WLR 802, [1993] 4 All ER 433, [1993] UKHL 7

Links:

Bailii

Citing:

Cited – National Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .
Cited – Barclays Bank Plc v O’Brien and Another CA 22-May-1992
A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge . .
Cited – Allcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Cited – Poosathurai v Kannappa Chettiar PC 1919
. .
Disapproved – Bank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .

Cited by:

Cited – UCB Corporate Services Limited v Williams CA 2-May-2002
The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to . .
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Cited – Vale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .
Cited – Barclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 19 May 2022; Ref: scu.79133

Cheah Theam Swee v Equitcorp Finance Group Ltd and Another: PC 5 Nov 1991

(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.

Citations:

Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39

Links:

Bailii

Citing:

Distinguished – Palmer v Hendrie 1859
. .
See Also – Cheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Commonwealth

Updated: 19 May 2022; Ref: scu.78999

Card Protection Plan Ltd v Commissioners of Customs and Excise: HL 6 Feb 2001

The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services for those who had lost a card, and laid off the costs against their own re-insurance. The European Court had defined insurance as the payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded. The commissioners held that two services were included, one of insurance, and one of the registration of an individual’s card and other details.
Held: The dominant purpose of the contract was for insurance. Others were ancillary or minor. (Slynn) ‘the court’s task is to have regard to the ‘essential features of the transaction’ to see whether it is ‘several distinct principal services’ or a single service and that what from an economic point of view is in reality a single service should not be ‘artificially split’. It seems that an overall view should be taken and over-zealous dissecting and analysis of particular clauses should be avoided.’ The court should asking itself ‘what is the essential feature of the scheme or its dominant purpose – perhaps why objectively people are likely to want to join it’.

Judges:

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Nolan Lord Steyn Lord Hoffmann

Citations:

Times 06-Feb-2001, Gazette 01-Mar-2001, [2001] UKHL 4, [2001] 2 ALL ER 143, [2001] 2 WLR 329, [2002] 1 AC 202

Links:

House of Lords, Bailii

Statutes:

Sixth Council Directive (77/388/EEC) (OJ 1977 L145/1), Value Added Tax Act 1983 17(1)

Jurisdiction:

England and Wales

Citing:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .

Cited by:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Lists of cited by and citing cases may be incomplete.

VAT, Banking, Insurance

Updated: 19 May 2022; Ref: scu.78887

Box and Others v Barclays Bank Plc: ChD 30 Apr 1998

A depositor who had placed sums with an illegal deposit taking business was not entitled to claim that sum held in trust because he still had a statutory claim under contract with the deposit taker.

Citations:

Times 30-Apr-1998, Gazette 07-May-1998, [1998] Lloyd’s Rep Bank 185

Statutes:

Banking Act 1987

Cited by:

Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 18 May 2022; Ref: scu.78520

Bank of Credit and Commers Hong Kong Ltd v Sonali Bank: QBD 20 Oct 1994

There was no basis for a forum switch to Bangladesh of an action as of right under UK law. Under a Letter of Credit it is desirable that the same system of law should govern the co-existing contracts between (a) the issuing bank and the beneficiary, (b) the confirming bank and the beneficiary, (c) the issuing bank and the confirming bank.

Citations:

Independent 20-Oct-1994, [1995] 1 Lloyds Rep 227

Cited by:

Cited – Pt Pan Indonesia Bank Ltd Tbk v Marconi Communications International Ltd CA 27-Apr-2005
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 18 May 2022; Ref: scu.78302

Bank of Credit and Commerce International (Overseas) Ltd (In Liqidation) and Others v Price Waterhouse and Others, Abu Dhabi Etc: ChD 25 Jun 1997

A banker disclosing information about a customer’s business affairs save under lawful requirement, would commit a criminal offence. The head of a member of a Federation, the Ruler of Abu Dhabi, was not entitled to immunity while the President of the entity of which Abu Dhabi formed part, namely the United Arab Emirates, was entitled to state immunity.

Judges:

Laddie J

Citations:

Times 25-Jun-1997, [1997] 4 All ER 108

Statutes:

Banking Act 1987 82(1)

Citing:

See Also – Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse ChD 7-Feb-1997
No duty of care was owed by accountants who were not auditors to lenders to the company audited. The claim was struck out. . .

Cited by:

Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 18 May 2022; Ref: scu.78133

First National Bank Plc v Syed: CA 1991

The court can exercise the supervisory jurisdiction over consumer contracts under the 1974 Act irrespective of any application made by a party.

Judges:

Dillon LJ, Ralph Gibson LJ

Citations:

[1991] 1 All ER 250

Statutes:

Consumer Credit Act 1974

Jurisdiction:

England and Wales

Cited by:

Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 18 May 2022; Ref: scu.304584

The Chartered Mercantile Bank of India, London, and China v Thomas Dickson And Christopher Tatham, Lately Trading As Dickson, Tatham And Co: 28 Jan 1871

The law with regard to time for the presentation of a Promissory Note payable on demand, requires that the presentation for payment be made within a reasonable time – that is, a period reasonable with reference to the circumstances
connected with each particular case.

Citations:

[1871] EngR 6, (1871) 7 Moo PC NS 1, (1871) 17 ER 213

Links:

Commonlii

Jurisdiction:

England and Wales

Banking

Updated: 18 May 2022; Ref: scu.280187

Alliance and Leicester Plc v Slayford and Another: CA 12 Oct 2000

Property was transferred into a divorcing husband’s name, and his new partner signed a form disclaiming any rights as against the lender. After possession proceedings, she later asserted that her consent had been obtained by the undue influence of her partner and that her equitable interest was an overriding one. The applicant applied to amend the pleadings to add to the claim for possession a claim against the original chargor for the debt secured.
Held: This was not an abuse of process even though the result might be that the partner’s insolvency came to defeat the new partner’s equitable interest. It was not an abuse of process, where a lender seeking to take possession of a mortgaged property was faced with an assertion of an interest by a resident spouse, for that lender to seek as an alternative, the bankruptcy of the borrower under the loan agreement itself. Such an action was clearly available to them. An occupier in such circumstances could now taking advantage of the more detailed exposition of rights contained in the Act which would be an appropriate way of establishing the protection to be given.

Citations:

Gazette 26-Oct-2000, Times 19-Dec-2000, [2000] EWCA Civ 257

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996

Jurisdiction:

England and Wales

Undue Influence, Banking, Land, Financial Services

Updated: 17 May 2022; Ref: scu.77751

AIB Finance Ltd v Debtors: ChD 10 Apr 1997

A Statutory Demand is only finally decided after the failure of a set aside application.

Judges:

Carnwath J

Citations:

Times 10-Apr-1997, [1997] 2 BCLC 354

Statutes:

Rules of the Supreme Court O59R10(2)

Cited by:

Appeal from – AIB Finance Ltd v Debtors (Alsop and Another) CA 11-Mar-1998
The duty of care of a lender to get the best price for repossessed properties, was not broken when the business closed before repossession, and the property was not sold as a going concern. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 17 May 2022; Ref: scu.77680

Swiss Bank Corporation v Brink’s MAT Ltd: 1986

Citations:

[1986] QB 853

Cited by:

Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 17 May 2022; Ref: scu.236604

Samuels Finance Group Plc v Beechmanor Ltd and others: CA 1993

The court considered the situation where the contract supported by a guarantee had been varied.
Lloyd LJ said: ‘One can perhaps imagine changes falling short of a novation which would yet be so fundamental that they could not properly be described as a variation at all. I will not attempt to say where the line is to be drawn.’ The variation in this case was comparatively minor and could well have been said to be within the ‘purview’ of the original contract.

Judges:

Lloyd LJ

Citations:

(1993) P and CR 282

Jurisdiction:

England and Wales

Cited by:

Cited – Triodos Bank Nv v Dobbs (No 2) CA 24-May-2005
The bank sought payment under a guarantee given by the appellant. The appellant said that the original loan agreement had been varied so as to release him. The loan had been taken out to support a business venture. After the guarantee was signed a . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 17 May 2022; Ref: scu.225454

IE Contractors v Lloyd’s Bank: CA 1990

Documents were issued by a bank and described as ‘performance bonds’ for damages up to specified amounts. The difficulty arose from the unusual form and language of the documents. The wording of the operative clause: ‘We undertake to pay you, unconditionally, the said amount on demand, being your claim for damages brought about by the above-named principal.’
Held: This wording required the demand to contain some reference, express or implicit, to a claim for damages; but that this requirement was satisfied on the facts of the case. ‘There is a bias or presumption in favour of the construction which holds a performance bond to be conditioned upon documents rather than facts. But I would not hold the presumption to be irrebuttable, if the meaning is plain.’

Judges:

Staughton LJ

Citations:

[1990] 2 Lloyd’s Rep. 496

Jurisdiction:

England and Wales

Cited by:

Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Approved – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others CA 6-Dec-2001
The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 17 May 2022; Ref: scu.225899

Re Bishop, Dec’d: 1965

An investment bought in the name of one from monies in the joint account will prima facie belong to the person in whose name the investment has been bought.

Citations:

[1965] Ch 450

Cited by:

Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 16 May 2022; Ref: scu.194781

Royal Bank of Scotland plc v Fielding: ChD 2 May 2003

The claimant challenged being held liable for substantial borrowings made by her husband on their joint account. She originally agreed a limit of andpound;200,000, but the bank agreed to vary this with the husband to over 3 million pounds. She had signed a joint mandate.
Held: The wife had not known the full extent of the borrowings. It could not be inferred that an abuse of confidence had taken place. If the bank were authorised by the joint mandate to grant an implied request for a loan (tacit sole borrowing), then meeting an express request (sole facility borrowing) would also be authorised.

Judges:

Mr Justice Hart

Citations:

Gazette 03-Jul-2003, Times 16-May-2003, [2003] EWHC 986 (Ch)

Jurisdiction:

England and Wales

Citing:

Appealed to – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .

Cited by:

Appeal from – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 16 May 2022; Ref: scu.184714

Bradford Savings and Loan Ltd and Another v Barclays Bank Plc: ComC 30 Mar 1994

cw Banking – breach of contract to make loan – refusal to advance money within the terms of the facility contract – obligation not terminated – remoteness, mitigation and quantum of damages – Banking – returned cheques as defamatory statements

Judges:

HHJ Kershaw

Citations:

Unreported 30 March 1994

Jurisdiction:

England and Wales

Banking, Defamation

Updated: 16 May 2022; Ref: scu.182566

Evans v London and Provincial Bank: 1917

Only nominal damages were awarded by a jury for damage to the plaintiff’s reputation after his bank had wrongly failed to pay on his cheque.

Citations:

(1917) 3 LDAB 152

Cited by:

Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Lists of cited by and citing cases may be incomplete.

Banking, Damages

Updated: 15 May 2022; Ref: scu.495213

Rae v Yorkshire Bank plc: CA 1987

The court considered the award of damages for the wrongful dishonour of its customer’s cheque.

Judges:

O’Connor, Parker LJJ

Citations:

[1988] BTLC 35

Jurisdiction:

England and Wales

Cited by:

Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 15 May 2022; Ref: scu.495211

Hare v Edwin Henty And George Henty: 7 May 1861

A country banker receiving from a customer a cheque 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.

Citations:

[1861] EngR 575, (1861) 10 CB NS 65, (1861) 142 ER 374

Links:

Commonlii

Cited by:

Cited – Barclays Bank plc v Bank of England ComC 1985
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 . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 15 May 2022; Ref: scu.284336

Re Hi-Fi Equipment (Cabinets) Limited: ChD 11 Jun 1987

The company had charged by way of a first fixed charge all future freehold and leasehold property together with trade fixtures and otherwise. The company used heavy machinery which rested on the floor of its premises. The chargee claimed a fixed charge over the machinery.
Held: The charge created one fixed charge over ‘fixed plant and machinery’. Machinery which merely rested on the premises did not meet the requirement of being firmly attached to the premises. The machinery was therefore subject only to the floating charge and was available to the general creditors.

Judges:

Harman J

Citations:

[1988] BCLC 65

Jurisdiction:

England and Wales

Citing:

Cited – Reynolds v Ashby and Son HL 1904
Machines had been affixed to the premises. The court was asked whether they were caught by a fixed charge over the company’s land and fixed assets.
Held: The machines were fixed by bolts only and no damage would be caused to the building by . .
Cited – Hulme v Brigham 1943
. .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 15 May 2022; Ref: scu.272306

Smith and another v Lloyds TSB Group plc: QBD 23 Dec 1999

A cheque was altered and presented and paid through an account operated by the defendants. The claimants asserted that the collecting bank had converted the cheque and were liable to repay its value. The cheque having been fraudulently altered, it was held that it had, under the Act, ceased to be a cheque as such, it became avoided, and neither collecting nor paying bank were liable for its face value in conversion.

Citations:

Times 23-Dec-1999

Statutes:

Bills of Exchange Act 1882 64, Cheques Act 1957 4

Jurisdiction:

England and Wales

Banking, Torts – Other

Updated: 15 May 2022; Ref: scu.89318

Kpohraror v Woolwich Building Society: CA 10 Jan 1996

The defendants had wrongfully refused payment of the claimant’s cheque for pounds 4,550. The error was realised on the same day, and corrected. The master awarded damages of pounds 5,550 as general damages to the claimant’s credit by reason of the dishonour. It was argued that as the claimant was not in business he could not recover general damages relating to loss of credit. The cheque had been drawn in a business transaction.
Held: It was open to the court to hold that the master had been right to award more than a nominal sum by way of general damages.
Evans LJ stated: ‘It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is ‘so obviously injurious to [his] credit’ that he should ‘recover, without allegation of special damage, reasonable compensation for the injury done to his credit’ (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.’ and
‘The contentions for both parties were presented as if in a straitjacket imposed by the strict application of the rule in Hadley v. Baxendale so as to require the separate consideration of each of the two limbs . . I would prefer to hold that the starting point for any application of Hadley v Baxendale is the extent of the shared knowledge of both parties when the contract was made . . When that is established, it may often be the case that the first and second parts of the rule overlap, or at least that it is unnecessary to draw a clear line of demarcation between them.’

Judges:

Evans LJ

Citations:

Gazette 10-Jan-1996, Independent 04-Jan-1996, Times 08-Dec-1995, [1996] 4 All ER 119

Jurisdiction:

England and Wales

Citing:

Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
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 . .
Lists of cited by and citing cases may be incomplete.

Damages, Banking

Updated: 15 May 2022; Ref: scu.82834

Citibank International Plc v Schleider et Al: ChD 26 Mar 1999

The purpose of the section was to prevent a lender using a second collateral agreement to circumvent the provisions of the Act restricting his freedom to include provisions detrimental to the borrower in the main agreement.

Citations:

Times 26-Mar-1999

Statutes:

Consumer Credit Act 1974 113(8)

Consumer, Banking

Updated: 15 May 2022; Ref: scu.79143

Barclays Bank Plc v Hendricks and Another: ChD 3 Nov 1995

The wife was co-owner of the family home. Her husband owed money to the bank. He separated from his wife and left the matrimonial home moving to another house owned by the wife. The bank obtained a charging order absolute against the husband’s interest in the matrimonial home and then sought an order under section 30 of the Law of Property Act, 1925 for the sale of the house. The Deputy Master made that order and the wife appealed asking the court to exercise its discretion to defer the sale of the house until all of the children of the family had reached the age of 18 or completed full time education.
Held: The court applied Abbey National -v- Moss and dismissed the appeal and confirmed the order made under s.30. The chargee was in the same position and subject to the same reasoning as Mrs Moss. She was unable, save in exceptional circumstances, to prevent the sale of a house by a chargee.

Judges:

Laddie J

Citations:

Independent 03-Nov-1995, [1996] 1 FLR 258

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Citing:

Followed – Abbey National plc v Moss and Others CA 1994
Mrs Moss inherited the former matrimonial home. Her daughter (L) suggested that she transfer it into their joint names to ease its transfer on her mother’s death. It was agreed the house would never be sold during Mrs Moss’s lifetime. L borrowed . .

Cited by:

Cited – Bank of Baroda v Dhillon and Dhillon CA 17-Oct-1997
A property had been bought in the husband’s name. The wife made financial contributions to repayment of the charge, and thereby acquired an interest in it. The property was later charged by the paper owner to the claimant, who sought possession . .
Cited – Regina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 15 May 2022; Ref: scu.78206

Cornelius v Phillips: HL 1918

A transaction which had been entered into in contravention of statutory restrictions was unlawful, and any contract which formed part of it conferred no rights on the moneylender.

Citations:

[1918] AC 199

Jurisdiction:

England and Wales

Cited by:

Cited – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 15 May 2022; Ref: scu.267377

As Latvijas Krajbanka v Antonov: ComC 27 May 2016

The bank claimed undr Latvian Law. The defendant though aware of proceedings had failed to comply with court for dicovery, and had not attended the trial. He had been found to have exaggerated the value of a yacht given in security for a loan.
Held: The application had been dishonest and in reckless disregard of the fact that the transaction was not in the interests of the Bank. Similar findings applied to seven other very substantial advances totalling over US$30 million.

Judges:

Leggatt J

Citations:

[2016] EWHC 1262 (Comm), 2014 FOLIO 861 and 761

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Banking, International

Updated: 15 May 2022; Ref: scu.564921

In re Shields’ Estate, Bank of Ireland (Governor and Co.), Petitioners: 1901

The court considered whether the maintenance of current accounts was essential before a business could be considered to be a bank.

Judges:

Fitzgibbon LJ

Citations:

[1901] 1 IR 172

Cited by:

Applied – State Savings Bank of Victoria Comissioners v Permewan Wright and Co Ltd 1915
To be held to be a banker in law, it was not necessary for a company to open current accounts. . .
Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 14 May 2022; Ref: scu.260043

Edgelow v MacElwee: 1918

The court should be astute to see that the Act is not broken.

Judges:

McCardie J

Citations:

[1918] 1 KB 205

Statutes:

Moneylenders Act 1900

Jurisdiction:

England and Wales

Cited by:

Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 14 May 2022; Ref: scu.260042

R E Jones Ltd v Waring and Gillow Ltd: HL 1926

In the case of a confidence man whose plan might have been frustrated by an unexpected contact between the two innocent parties; the House of Lords were divided as to whether that equivocal contact amounted to a representation. Viscount Cave LC thought that the court should find a way of preventing a party so using estoppel as to make a profit.

Judges:

Lord Shaw, Viscount Cave LC, Lord Carson, Lord Sumner

Citations:

[1926] AC 670

Statutes:

Bills of Exchange Act 1882 29(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Banking

Updated: 14 May 2022; Ref: scu.259531

Ross v London County Westminster and Parr’s Bank: 1919

Bailhache J considered the standards to be expected of a bank clerk: ‘I must attribute to the cashiers and clerks of the defendants the degree of intelligence and care ordinarily required of persons in their position to fit them for the discharge of their duties. It is therefore necessary to consider whether a bank cashier of ordinary intelligence and care on having these cheques presented to him by a private customer of the bank would be informed by the terms of the cheques themselves that it was open to doubt whether the customer had a good title to them.’

Judges:

Bailhache J

Citations:

[1919] 1 KB 678

Cited by:

Approved – Lloyds Bank Limited v The Chartered Bank of India, Australia and China CA 1929
Sankey LJ said: ‘a bank cannot be held to be liable for negligence merely because they have not subjected an account to a microscopic examination. It is not to be expected that the officials of banks should also be amateur detectives.’ . .
Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 14 May 2022; Ref: scu.250554

Bank of England v Riley: 1992

Exercise of the right of privilege against self-incrimination.

Citations:

[1992] Ch 475

Cited by:

Cited – Bishopsgate Investment Limited v Maxwell CA 1999
A person required to answer questions under the section may not refuse to answer on the ground of self-incrimination. (Dillon LJ) ‘It is plain to my mind – and not least from the Cork Report – that part of the mischief in the old law before the . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Lists of cited by and citing cases may be incomplete.

Banking, Criminal Practice

Updated: 14 May 2022; Ref: scu.242407

The Nefeli: 1986

Citations:

[1986] 1 Lloyds Rep 339

Cited by:

Approved – Melvin International SA v Poseidon Schiffahrt GmbH ComC 18-Jun-1999
ComC Guarantee – guarantor not exempted from liability ‘…by any variation in the terms of the …2 underlying charterparty – whether addenda to charterparty a ‘variation’ – the relevant legal principles – the . .
Cited – Triodos Bank Nv v Dobbs (No 2) CA 24-May-2005
The bank sought payment under a guarantee given by the appellant. The appellant said that the original loan agreement had been varied so as to release him. The loan had been taken out to support a business venture. After the guarantee was signed a . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 13 May 2022; Ref: scu.225452

Merrill Lynch Capital Services Inc v The Municipality of Piraeus and The Bank of Tokyo; Mitsubishi Bank Ltd and Others v The Municipality of Piraeus: ComC 18 Jun 1997

Loan and swap agreements – Greek local authority – Rules of English private international law – capacity – authority – ratification

Citations:

[1997] 6 Bank LR 241, [1997] CLC 1214

Jurisdiction:

England and Wales

Banking, Local Government

Updated: 13 May 2022; Ref: scu.220782

Banbury v Bank of Montreal: PC 1918

A bank manager employed by the respondents had advised one customer to invest in a project of another. The bank could not advise on investments.
Held: The fact that the second customer owed money to the ban under an overdraft did not make the bank his agent so as to make it responsible to the first as the second’s agent,

Citations:

[1918-19] All ER Rep 1, [1918] AC 626, 87 LJKB 1158, 119 LT 446, 36 Digest (Rep 1) 14

Jurisdiction:

Canada

Banking, Agency

Updated: 13 May 2022; Ref: scu.216352

Bank of Montreal v Sweeny: PC 1887

(Canada) A bank received property from a trustee knowing it to be trust property, although they knew not that the trustee was acting improperly, nor anything else, and made no enquiries. The bank was ordered to restore the property to the rightful beneficiary: ‘Their Lordships are led to this conclusion by the ordinary rules of justice as between man and man, and the ordinary expectations of mankind in transacting their affairs.’

Judges:

Lord Halsbury LC

Citations:

(1887) 12 App Cas 617

Jurisdiction:

Canada

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 13 May 2022; Ref: scu.199516

Redman v Allied Irish Bank: 1987

The duty of care of a banker to its customer is in ‘interpreting, ascertaining and acting on’ instructions given pursuant to the mandate. A bank is not under a concomitant duty to volunteer to its customer advice about the wisdom of a particular transaction.

Judges:

Saville J

Citations:

[1987] 2 FTLR 264

Cited by:

Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Lists of cited by and citing cases may be incomplete.

Banking, Professional Negligence

Updated: 13 May 2022; Ref: scu.194780

Z Ltd v A-Z and AA-LL: CA 1982

The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Held: The application was dismissed. The injunction had been properly granted. An innocent third party had to do all he could to comply with such an order. The effect of such an order was to permit the bank to break the terms of any contractual obligation to the customer to honour cheques etc. The remedy has hitherto been in a contempt action.

Judges:

Lord Denning MR

Citations:

[1982] 1 AB 558, [1982] 2 WLR 288, [1982] 1 All ER 556

Statutes:

Supreme Court Act 1981 37(3)

Jurisdiction:

England and Wales

Citing:

Applied – Rahman (Prince Abdul) bin Turki al Sudairy v AbuTaha CA 1-Jun-1980
Lord Denning, MR said: ‘So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out . .
Applied – Clipper Maritime Co Ltd v Mineralimportexport 1981
Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity. . .
Applied – Searose v Seatrain UK 1981
Third parties who are unconnected with a dispute but who incur expense in complying with an order may specifically be covered by a cross-undertaking as to their costs and otherwise. Robert Goff J said: ‘the banks in this country have received . .

Cited by:

Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 13 May 2022; Ref: scu.192614

Z Bank v DI: ChD 1994

A company in contempt of court may have acted with a greater or lesser degree of culpability and the court has a discretion to impose punishment commensurate with that culpability, although some penalty is likely to be appropriate unless the contempt has been casual or accidental or unintentional or subsequently purged, but ‘That, however, does not mean that there are no cases of negligent contempt where a penalty in the form of committal or sequestration would be appropriate. For example, where a contemnor had committed an isolated breach of a Mareva injunction due to the negligence of those responsible for giving appropriate orders to junior staff or perhaps due to having received negligent legal advice and had attempted to purge the contempt by restoring the status quo as far as possible, it might well be quite unnecessary for the protection of the administration of justice for any penalty to be imposed. Where by contrast there has been a very culpable degree of negligence which has resulted in numerous breaches of the Court’s order involving the abstraction of large sums of money, it will often be appropriate to impose not merely a nominal penalty but one which will be recognized as reflecting the serious view taken by the Court of the failure to comply with its orders.’ The bank being culpable, a sequestration was ordered to support the contempt finding.

Judges:

Colman J

Citations:

[1994] 1 Lloyds Rep 656

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Banking

Updated: 13 May 2022; Ref: scu.192618

Barclays Bank plc v Willowbrook International Ltd: 1987

Citations:

[1987] 1 FTLR 386

Citing:

Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:

Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 May 2022; Ref: scu.191959

Swift v Jewsbury and Goddard: 1874

Citations:

(1874) LR 9 QB 301

Jurisdiction:

England and Wales

Cited by:

Explained – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 12 May 2022; Ref: scu.185446

Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department: 1996

The Export Credit Guarantee Department was not liable to the Bank for the loss which the Bank sustained due to the fraud of one of its customers in which an employee was involved.

Judges:

Longmore J

Citations:

[1996] 1 Lloyd’s Rep 200

Cited by:

Appeal from – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department CA 23-Jul-1997
The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Employment, Banking, Torts – Other

Updated: 12 May 2022; Ref: scu.183573

Polock v Garle: 1898

Lord Lindley MR said: ‘The Bankers’ Books Evidence Acts were passed for the obvious purpose of getting over a difficulty and hardship as to the production of bankers’ books. If such books contained anything which would be evidence for either of the parties, the banker or his clerk had to produce them at the trial under a subpoena duces tecum, which was an intolerable inconvenience to bankers when the books were in daily use. The leading object of the Acts was to protect bankers from that inconvenience. This is accompanied by the first six sections of the Act of 1879, which enable bankers to send attested copies of entries in their books instead of producing the books.’ but ‘ . . when an account is the account of a person who has nothing to do with the litigation, the Court ought to look to the effect in practice of such an order on the rights of third parties, and to take care that this section is not made a means of oppression.’

Judges:

Lord Lindley MR

Citations:

[1898] 1 Ch 1

Statutes:

Bankers’ Books Evidence Act 1879 7

Cited by:

Considered – Douglas and others v The Right Honourable Sir Lynden Oscar Pindling PC 13-May-1996
(Bahamas) A commission investigating the activities of a company, sought disclosure of its bankers records. The committee held that this was not a constitutional issue, and that leave to appeal as of right did not exist, but special leave was . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 12 May 2022; Ref: scu.183479

Meridien BIAO v Bank of New York: 1997

Citations:

[1997] 1 Lloyd’s Law Rep 437

Jurisdiction:

England and Wales

Cited by:

Cited – Aeolian Shipping SA v ISS Machinery Services Ltd CA 20-Jul-2001
The respondent had purchased a substantial machine. It broke down, and they sought repairs under a claimed warranty. Spares were provided, but against an undertaking to pay for them. When the spares were not paid for the ship was arrested, and . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 12 May 2022; Ref: scu.181627

Parsons v Barclay and Co Ltd and Goddard: CA 1910

An inquiry was made between banks as to the financial position of a customer of the defendant Bank. It was answered by the manager containing the words: ‘This information is for your private use only, and is given without any responsibility on our part.’ The customer of the requesting bank who had sought the reference now brought an action for fraud. The question of whether the defendant bank made the representation with the intention that it should be passed on and acted on as his own representation was left to the jury as a question of fact.
Held: The court considered the extent of the duties on a bank manager when asked for a banker’s reference.
Cozens-Hardy MR said: ‘I desire for myself to repudiate entirely the suggestion that when one banker is asked by another for a customer such a question as was asked here, it is in any way the duty of the banker to make inquiries other than what appears from the books of account before him, or, of course, to give information other than what he is acquainted with from his own personal knowledge . . I think that if we were to take the contrary view . . we should necessarily be putting a stop to that very wholesome and useful habit by which the banker answers in confidence and answers honestly, to another banker.’ It would, I think, be unreasonable to impose an additional burden on persons such as bankers who are asked to give references and might, if more than honesty were required, be put to great trouble before all available material had been explored and considered.’

Judges:

Cozens-Hardy MR

Citations:

(1910) 103 LT 196, [1908-10] All ER Rep 429, [1910] 26 TLR 628

Jurisdiction:

England and Wales

Cited by:

Cited – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Negligence, Banking

Updated: 12 May 2022; Ref: scu.181266

Bank of Victoria Ltd v Mueller: 1925

Cussen J opined that a wife was entitled to relief from a guarantee granted to the bank undertaken under pressure from her husband where amongst other matters it could be shown: ‘that the husband in procuring and pressing for such consent misrepresents in a material respect what is proposed to be the nature of her liability as guarantor, and that, by reason of such misrepresentation, the wife in respect of such matter does not understand the true nature of her liability as expressed in a form of guarantee signed by her.’
Cusen J drew a comparison with equity’s treatment of gifts made by a mistaken donor’ and the ‘long established principles which would preclude enforcement of a guarantee in some cases where the creditor has not disclosed to the intending surety some features of the transaction’.
Cussen J said: ‘In the first place, it is obvious that a large benefit is conferred both on the creditor and the debtor, which, so far as any advantage to the guarantor is concerned, is voluntary, though no doubt ‘consideration’ exists so far as the creditor is concerned, so soon as forebearance is in fact given or advances are in fact made. It is, I think, to some extent by reference to the rule or to an extension of the rule that, in the case of a large voluntary donation, a gift may be set aside in equity if it appears that the donor did not really understand the transaction, that such a guarantee may be treated as voidable as between the husband and wife.’

Judges:

Cussen J

Citations:

[1925] VLR 642

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Lists of cited by and citing cases may be incomplete.

Banking, Equity, Undue Influence

Updated: 12 May 2022; Ref: scu.180572

Zoneheath Association Ltd v China Tianjin International European Community Economic and Tech Co-Op Corporation: QBD 8 Apr 1994

A garnishee order was not available against a foreign account through a UK branch. The English court continued to exercise its discretion against the making of orders in relation to debts with a foreign situs

Citations:

Times 08-Apr-1994, [1994] CLC 348

Jurisdiction:

England and Wales

Cited by:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 11 May 2022; Ref: scu.90691

Kenneth Starling v Lloyds TSB Bank plc: CA 10 Nov 1999

The setting aside of the statutory power of a mortgagor in possession to grant a lease, by the mortgage itself did not create in the lender a duty of good faith properly to consider a request from the mortgagor for permission to let the property. It was wrong to attempt to import such a duty from a very different area of law.

Judges:

29 October 1999

Citations:

Times 12-Nov-1999, Gazette 10-Nov-1999

Statutes:

Law of Property Act 1925 99

Jurisdiction:

England and Wales

Citing:

Followed – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .

Cited by:

Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 11 May 2022; Ref: scu.89505

Skipton Building Society v Bratley and another: CA 12 Jan 2000

After a sale by the mortgagee in possession, the judge at first instance had found that the plaintiff had negligently failed to take reasonable care to ensure that the premises were sold at the best price that could reasonably be obtained:
Held: Where a lender having sold property secured by a charge took the property into possession and sold it, but failed to obtain the best price reasonably obtainable, any liability of a guarantor of the loan was reduced to the extent of that failure. In calculating damages the task of the court is to determine the true market value of the property, and where there is a bracket of acceptable valuations the court will take the mean figure within that bracket as being the market value.

Citations:

Times 12-Jan-2000

Jurisdiction:

England and Wales

Banking, Damages

Updated: 11 May 2022; Ref: scu.89299

Prideaux v Criddle: 1869

Citations:

(1869) LR 4 QB 455

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank plc v Bank of England ComC 1985
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 . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 11 May 2022; Ref: scu.561157

National and Provincial v William and Humphrey: 1996

Girvan J said: ‘If a mortgagor declines to put any material before the court which could lay a basis for the court exercising its powers under s36 the mortgagee would be entitled to his remedy based on his clear contractual rights under the mortgage. It is for a mortgagor to adduce some justification or basis to enable the court to exercise its discretionary power under s36 in his favour. A mortgagor who is in default under his mortgage has no right to demand that the court exercises its discretion in his favour to grant what is in effect a form of relief against the consequences of a breach of contract . . A mortgagor seeking to persuade the court to exercise its powers under s36 should be expected to put before the court his best realistic proposals to avoid the consequences of his breach of the contractual terms of the mortgage . .’

Judges:

Girvan J

Citations:

[1996] NI 47

Statutes:

Administration of Justice Act 1973 36

Cited by:

Cited – Santander (UK) Plc v Parker CANI 16-Jun-2015
Appeal by Mr Parker against the judgment dismissing Mr Parker’s appeal against the Order of Master Bell refusing a stay on possession by Santander (UK) PLC of the appellant’s dwelling house.
Held: A promissory note was equivalent to cash, but . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Banking

Updated: 11 May 2022; Ref: scu.550147

Rank Enterprises Ltd and Others v Gerard: CA 10 Feb 2000

Contracts for the sale of ships were supported by bonds guaranteeing their freedom for delivery. Events arose which affected the ships but for which the sellers were not themselves responsible. The guarantee was intended to operate to protect the buyer against any claim arising before delivery, and was not restricted to events which lay at the door of the vendor.

Citations:

Gazette 10-Feb-2000, Times 28-Feb-2000

Jurisdiction:

England and Wales

Transport, Banking

Updated: 11 May 2022; Ref: scu.85664

Regina v Special Commissioners of Income Tax, Ex Parte Inland Revenue Commissioners; R v Inland: CA 27 Jun 2000

An application to the commissioner for special authority and consent to inspect bank accounts could be signed by an officer having that authority; for these purposes there was no need to distinguish between an order and a decision and might be oral. A decision refusing such an application on the grounds that it was not signed by the Board was incorrect, and there should be no need to renew the application.

Citations:

Times 27-Jun-2000

Statutes:

Taxes Management Act 1970 20(8A)

Jurisdiction:

England and Wales

Banking, Taxes Management

Updated: 11 May 2022; Ref: scu.85566

Provincial North West Plc v Bennett and Another: Same v Williams and Another: CA 11 Feb 1999

Where a loan agreement provided that the interest rate payable was at 3 per cent above base rate, that meant the rate calculated in that manner at that rate above the base rate from time to time, and the rate applied to the account would vary with the base rate. A requirement to give notice of a rate change applied to a change in the differential rate, and not to a change in the underlying base rate..

Citations:

Times 11-Feb-1999

Jurisdiction:

England and Wales

Banking

Updated: 11 May 2022; Ref: scu.85064

National Westminster Bank Plc v Kostopoulos and Another: CA 2 Mar 2000

Where a judge decides that a party has raised a triable argument of undue influence, it should be rare for that assessment to be interfered with on appeal. The judge had given a carefully thought out and detailed explanation of why he had allowed the appeal against strike out, and the matter should proceed.

Citations:

Times 02-Mar-2000

Jurisdiction:

England and Wales

Undue Influence, Banking

Updated: 11 May 2022; Ref: scu.84219

Barclays Bank Plc v Coleman and Others: CA 5 Jan 2000

It is still the case that a claimant, arguing for a charge to be set aside for undue influence must show some manifest and clear disadvantage arising from the charge. This may be subject to change in the future, but still applies now. A document required to be executed before an independent solicitor, but witnessed by a legal executive with the authority of his solicitor employer was properly executed and counted as having been given under such independent advice.

Judges:

Nourse LJ

Citations:

Times 05-Jan-2000, Gazette 20-Jan-2000, [2001] QB 20

Jurisdiction:

England and Wales

Cited by:

Appeal from – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 10 May 2022; Ref: scu.78195

AIB Finance Ltd v Debtors (Alsop and Another): CA 11 Mar 1998

The duty of care of a lender to get the best price for repossessed properties, was not broken when the business closed before repossession, and the property was not sold as a going concern.

Citations:

Times 11-Mar-1998, Gazette 08-Apr-1998

Jurisdiction:

England and Wales

Citing:

Appeal from – AIB Finance Ltd v Debtors ChD 10-Apr-1997
A Statutory Demand is only finally decided after the failure of a set aside application. . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 10 May 2022; Ref: scu.77681

State Savings Bank of Victoria Comissioners v Permewan Wright and Co Ltd: 1915

To be held to be a banker in law, it was not necessary for a company to open current accounts.

Citations:

(1915) 19 CLR 457

Citing:

Applied – In re Shields’ Estate, Bank of Ireland (Governor and Co.), Petitioners 1901
The court considered whether the maintenance of current accounts was essential before a business could be considered to be a bank. . .

Cited by:

Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth

Updated: 10 May 2022; Ref: scu.260044

Intraco Limited v Notis Shipping Corporation: CA 1981

‘Demand bonds’ are a specialised form of irrevocable instrument, developed by the banking world for its commercial customers. They have been accepted by the courts as the equivalent of irrevocable letters of credit, and have been described as part of ‘the lifeblood of commerce’ Donaldson LJ: ‘Thrombosis will occur if, unless fraud is involved, the courts intervene and thereby disturb the mercantile practice of treating rights thereunder as being the equivalent of cash in hand.’

Judges:

Donaldson LJ

Citations:

[1981] 2 Lloyd’s Rep 256

Jurisdiction:

England and Wales

Cited by:

Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 09 May 2022; Ref: scu.225901

Raiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others: ComC 19 Mar 1999

ComC The rule in Pigot’s case. Whether alteration to a guarantee by the insertion of the name and address of a service agent was material so as to render the guarantee unenforceable.

Judges:

Cresswell J

Citations:

[1999] 1 All ER (Comm), [1999] Lloyd’s Rep Bank 164, [1999] CLC 973

Citing:

Cited – Pigot’s Case 1614
A written contact may be avoided if somebody makes a material alteration to it after it has been signed and without his consent. . .

Cited by:

Appeal from – Raiffeisen Zentralbank Osterreich Ag v Cross-Seas Shipping Ltd and Others CA 1-Feb-2000
An alteration to a deed after it had been executed did not necessarily invalidate it. Old rules to that effect need no longer be considered correct. The test was whether any party was adversely affected or the effect of the deed was changed by the . .
Appeal From – Raiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others CA 2000
The claimant creditor bank made changes to the guarantee executed by the guarantee without its approval and after it had been signed and duly executed, by inserting the details of a service agent.
Held: The insertion did not work to alter the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 09 May 2022; Ref: scu.225402

Phillips v Bateman: 1812

A, was faced with a run on a banking house, and promised to support the bank with andpound;30,000. Note holders stopped withdrawing their money, but the bank subsequently stopped paying out.
Held: A was not liable to an action by individual holders of bank notes, under the doctrine of privity of contract.

Citations:

104 ER 1124, (1812) 16 East 356

Jurisdiction:

England and Wales

Contract, Banking

Updated: 09 May 2022; Ref: scu.222003

Andrews v Australia and New Zealand Banking Group Ltd: 6 Sep 2012

Austlii High Court of Australia – Banker and customer – Penalty doctrine – Consumer and commercial credit card accounts – Honour fee – Dishonour fee – Late payment fee – Non-payment fee – Over limit fee – Whether those fees penalties – Whether penalty doctrine limited to circumstances where there is breach of contract – Significance of law respecting penal bonds – Grounds for equitable intervention – Whether penalty doctrine now wholly a rule of common law.
Equity – Doctrines and remedies – Relief against penalties – Significance of law respecting penal bonds – Whether relief available only in cases of breach of contract – Whether penalty doctrine now wholly a rule of common law.
Words and phrases – ‘bond’, ‘condition’, ‘dishonour fee’, ‘exception fees’, ‘honour fee’, ‘penalty’.

Judges:

French CJ, Gummow, Crennan, Kiefel, Bell JJ

Citations:

[2012] HCA 30, (2012) 247 CLR 205, (2012) 290 ALR 595, [2012] ASC 155, (2012) 86 ALJR 1002

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 09 May 2022; Ref: scu.593106

Re Banque des Marchands de Moscou (Koupetschesky): 1952

Citations:

[1952] 1 All ER 1269

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 08 May 2022; Ref: scu.183830

Solo Industries UK Ltd v Canara Bank: CA 3 Jul 2001

The claimant sought payment under a guarantee issued by the bank. The bank refused to honour the bond, arguing that it had been obtained by some fraud. The claimant was refused summary judgment on the basis that since the defence went to the validity of the bond, arguments about it being similar to a cheque or other promissory note were not effective.
Held: The appeal failed. There was no basis for seeking to extend the principal that such instruments were to be treated like cash to situations where the underlying validity of the bond was being challenged. The bank had a real prospect of establishing its defence, and summary judgment was properly refused.

Judges:

Potter LJ, Mance LJ, Nourse

Citations:

Gazette 19-Jul-2001, Times 31-Jul-2001

Jurisdiction:

England and Wales

Banking, Commercial

Updated: 08 May 2022; Ref: scu.89394

Securum Finance Ltd v Ashton and Another: ChD 18 Jun 1999

The fact that earlier proceedings under a mortgage to recover the debt as a simple contract debt had been dismissed for want of prosecution, did not prevent the mortgagee later proceeding under the mortgage as a specialty debt.

Citations:

Gazette 30-Jun-1999, Times 18-Jun-1999

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Appealed to – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .

Cited by:

Appeal from – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .
Lists of cited by and citing cases may be incomplete.

Banking, Limitation

Updated: 08 May 2022; Ref: scu.89156

Bank of Scotland v A Ltd and Others (Serious Fraud Office, Interested Party): CA 6 Feb 2001

A bank, having been informed that the activities of a customer involved money laundering, found itself in a position where, if it paid out the funds, it would face conviction, but if it failed to do so, it be found to be involved in tipping off the customer.
Held: This is one of the few situations where an application could be made to court for a declaration. The appropriate defendant was the Serious Fraud Office, not the customer. The court would not normally be willing to grant a declaration to save a citizen who was faced with a normal even if difficult commercial decision. Discussing legal privilege: ‘During argument there was discussion as to the extent of the defence provided by section 93D(4). Mr Crow helpfully drew our attention to the similarity between the language of section 93D(4) and the scope of legal professional privilege. Based on this assistance, we conclude that the subsection broadly protects a legal adviser when that adviser is engaged in activities which attract legal professional privilege.’

Judges:

Lord Woolf CJ

Citations:

Times 06-Feb-2001, Gazette 01-Mar-2001, [2001] 1 WLR 754, [2001] EWCA Civ 52

Statutes:

Criminal Justice Act 1988 93A 93B 93C

Jurisdiction:

England and Wales

Cited by:

Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit and others ComC 3-Apr-2003
The company provided trading services in financial futures. They became concerned as to the integrity of their client, and its relationship with shareholders and other companies where parties came to be arrested for fraud in the US. They sought a . .
Cited – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Banking

Updated: 08 May 2022; Ref: scu.78158

Casio Computer Co Ltd v Sayo and Others: CA 8 Feb 2001

In a case alleging knowing assistance in the fraudulent transfer of funds through the banking system, acts forming part of the events had occurred within the jurisdiction. It was proper to join a defendant to the action here, even though he was resident in Spain. Under the Convention the defendants could be sued either in the jurisdiction of their residence or where any of the events giving rise to the tort occurred.

Citations:

Times 06-Feb-2001, Gazette 08-Feb-2001

Statutes:

Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968

Jurisdiction:

England and Wales

Cited by:

See Also – Casio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
See Also – Casio Computer Company Ltd v Sayo and others CA 13-Dec-2001
Applications for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Equity, Banking

Updated: 08 May 2022; Ref: scu.78936

Bank of Scotland v Davis: SCS 1982

A bank’s borrower’s covenant to pay interest is ordinarily to be taken to continue until the full sum of principal is repaid, after as before judgment. An appeal was allowed from the order of the sheriff in an undefended action for repayment of a loan, the sheriff having ordered payment of interest from the date of judgment at a rate lower than the contractual rate until payment. The court saw no reason why the contractual rate should not apply also after judgment.

Citations:

1982 SLT 20

Jurisdiction:

Scotland

Cited by:

Cited – Director General of Fair Trading v First National Bank Plc CA 15-Sep-1999
A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 08 May 2022; Ref: scu.445466

Commercial Banking Co of Sydney Ltd v Mann: PC 1961

The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to Mann, but cheques might be drawn on the partnership bank account by either. Mann gave the necessary authority to ANZ. Richardson used that authority to draw cheques, inserting on each after the printed word ‘Pay’, the words ‘Bank cheque favour H. Ward’ or ‘Bank cheque H. Ward;’. He also filed application forms for bank cheques in favour of H. Ward to a like amount, purporting to sign them on behalf of the firm. He took the documents to ANZ, which in each case debited the firm’s account and issued a bank draft of an equal amount in the form ‘Pay H. Ward or bearer.’ He took the cheques to the appellant bank, and cashed them over the counter. The bank paid the cheques. He was fraudulent throughout; Ward was not a client of the partnership, nor had any client authorised the payment to him of any money held in the trust account. Mann sued the appellant bank for conversion of the bank cheques, or alternatively to recover the sums received by it from ANZ bank as money had and received to his use. He succeeded before the trial judge, whose decision was affirmed by the Court of Appeal of New South Wales.
Held: The bank’s appeal succeeded. Mann never obtained any title to the cheques, and he could not obtain title by ratifying the conduct of Richardson in obtaining the cheques from ANZ bank, without at the same time ratifying the dealings in the cheques by Ward and the appellant bank. Mann’s claim for damages for conversion failed, and that his alternative claim for money had and received also failed. Where a partner in a firm wrongfully draws a cheque on the partnership account, the proceeds of the cheque are legally his.
Viscount Simonds said: ‘It is important to distinguish between what was Richardson’s authority in relation on the one hand to the A.N.Z. bank and on the other to Mann. No question arises in these proceedings between Mann and the A.N.Z. bank. It is clear that Mann could not as between himself and the bank question Richardson’s authority to draw cheques on the trust account. The position as between Mann and Richardson was different. Richardson had no authority, express or implied, from Mann either to draw cheques on the trust account or to obtain bank cheques in exchange for them except for the proper purposes of the partnership. If he exceeded those purposes, his act was unauthorised and open to challenge by Mann. It is in these circumstances that the question must be asked whether, as the judge held, the bank cheques were throughout the property of Mann. It is irrelevant to this question what was the relation between Richardson and Ward and whether the latter gave any consideration for the bank cheques that he received and at what stage Mann learned of the fraud that had been practised upon him. The proposition upon which the respondent founds his claim is simple enough: Richardson was his partner and in that capacity was able to draw upon the trust account and so to obtain from the bank its promissory notes: therefore the notes were the property of the partnership and belonged to Mann, and Richardson could not give a better title to a third party than he himself had.’

Judges:

Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker and Lord Morris of Borth-y-Gest

Citations:

[1961] AC 1, [1960] 3 All ER 482

Jurisdiction:

England and Wales

Citing:

Applied – Union Bank of Australia Ltd v McClintock PC 1922
Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained. . .

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company, Banking, Torts – Other

Updated: 07 May 2022; Ref: scu.259437

Kirkwood v Gadd: HL 1910

Under the 1900 Act, a moneylender was required to carry on his business only in his registered name and at his registered address.
Held: (Lord Atkinson) the words ‘carries on business’ implied a repetition of acts, and ‘Whether one isolated transaction carried out by a money-lender from its inception to its completion at a place other than his registered address amounts or does not amount to the crime of carrying on business elsewhere than at his registered address, within the meaning of the statute, must depend on the particulars or circumstances attending the transaction. The carrying out of one such transaction does not necessarily amount to an offence, but circumstances are conceivable where it might amount to it;’

Judges:

Lord Atkinson, Lord Loreburn

Citations:

[1910] AC 422

Statutes:

Moneylenders Act 1900 2

Jurisdiction:

England and Wales

Cited by:

Cited – Kenny v Conroy and Another CA 27-Jan-1999
A court need only first see whether at the time of the loan, the party’s business was that of moneylender. If not, the court then investigates if the person held themselves out as carrying on such a business. Kennedy L.J: ‘. . . a licensed . .
Cited – GE Capital Bank Ltd v Rushton and Another CA 14-Dec-2005
The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 07 May 2022; Ref: scu.236664

Lloyds Bank plc v Bundy: CA 1974

‘Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank.’ The defendant and his son were the banks customers over many years. He had been advised that he could not afford to give greater support to his son, but later did so by extending the guarantee, and charging his property. The Bank sought to rely on the guarantee given to a bank by a father to support his son’s existing borrowing. The lending bank was found to have exercised undue influence over the customer. It was inappropriate for the father to give the guarantee because the bank manager knew the father and that thefather would rely upon him.
Held: The court set out to create a general principle of relief against harsh bargains on the ground of inequality of bargaining power.

Judges:

Lord Justice Denning MR, Sir Erich Sachs, Cairns LJ

Citations:

[1975] QB 326, [1974] 3 All ER 757

Jurisdiction:

England and Wales

Cited by:

Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Distinguished – Avon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
Cited – Eclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence, Equity

Updated: 06 May 2022; Ref: scu.193356

Ashley Guarantee plc v Zacaria: CA 1993

In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary.

Judges:

Nourse LJ

Citations:

[1993] 1 WLR 62

Jurisdiction:

England and Wales

Citing:

Applied – National Westminster Bank plc v Skelton (Note) 1993
The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a . .

Cited by:

Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Lexi Holdings v Pooni and Another ChD 21-Apr-2008
. .
Lists of cited by and citing cases may be incomplete.

Banking, Negligence

Updated: 06 May 2022; Ref: scu.184794

Standard Chartered Bank Ltd v Walker: CA 1982

The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee had sold at an undervalue on a variety of grounds one of which was that the sale took place at the wrong time of year.
Held: the mortgagor should have leave to defend on the ground that there was an arguable case that the sale had been negligently handled. A mortgagee can choose his own time for sale. A lender recovering funds on sale of the mortgaged property must use the proceeds to reduce the debt. ‘If it should appear that the mortgagee or the receiver have not used reasonable care to realise the assets to the best advantage, then the mortgagor, the company, and the guarantor are entitled in equity to an allowance. They should be given credit for the amount which the sale should have realised if reasonable care had been used. Their indebtedness is to be reduced accordingly.’ The mortgagee’s duty is ‘to take reasonable care to obtain the best price that the circumstances permit’.

Judges:

Lord Denning MR

Citations:

[1982] 1 WLR 1410, [1982] 3 All ER 938

Jurisdiction:

England and Wales

Cited by:

Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Cited – Re Charnley Davies Ltd (No 2) ChD 1990
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Lists of cited by and citing cases may be incomplete.

Land, Banking

Updated: 06 May 2022; Ref: scu.184792

Habib Bank Ltd v Habib Bank AG Zurich: CA 1981

A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to the availability of damages in a case of acquiescence to the breach of a contract: ‘that the test requires a much broader approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment.’ The court approved a statement in the court below: ‘Of course, estoppel by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable that he should be entitled to succeed in the proceeding.’ The court favoured a broad approach to the problem of inequitable or unconscionable conduct by long delay, rather than one turning on historical distinctions between the assertion of equitable rights and the enforcement rights by equitable means

Judges:

Oliver LJ

Citations:

[1981] 1 WLR 1265, [1981] 2 All ER 650

Jurisdiction:

England and Wales

Citing:

Endorsed – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .

Cited by:

per incuriam – Jones v Stones CA 11-May-1999
No defence of acquiescence or estoppel arose from a failure by a land owner to pursue a complaint. Such a defence could only be established by some positive act of encouragement or allowance by him. The heart of the action lay in the allowance of a . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Brooker and Another v Fisher CA 4-Apr-2008
The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
Cited – St Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
Cited – Budejovicky Budvar Narodni Podnik v Anheuser-Busch Inc CA 20-Oct-2009
The parties had long disputed the use of the trade marks ‘Bud’ and ‘Budweiser’ for their beers. The claimant now said that the defendants had made an abusive registration under the 1994 Act, by requesting a declaration that the registration by the . .
Lists of cited by and citing cases may be incomplete.

Banking, Damages, Equity

Updated: 06 May 2022; Ref: scu.182879

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

(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.’

Judges:

Emilio M Garza

Citations:

[2002] 309 F3d 240

Links:

Worldlii

Cited by:

Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
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, . .
Lists of cited by and citing cases may be incomplete.

International, Banking

Updated: 06 May 2022; Ref: scu.468969

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

Hong Kong Court of Appeal

Citations:

[2010] HKCA 19, [2010] 2 HKLRD 66, [2010] 2 HKC 487

Links:

HKLii

Cited by:

Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
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, . .
Lists of cited by and citing cases may be incomplete.

International, Banking

Updated: 06 May 2022; Ref: scu.468970

Momm v Barclays Bank International Ltd: ComC 1977

The court considered the situation arising where there had been a payment from one customer’s account to another customer’s account within the same bank, and then reversed.
Held: The bank had until the end of the value date to decide whether to credit the customer’s account. It had decided so by 16.14 on that day to place a marker on the account and had therefore declined to make the funds available, but that did not avoid the consequences that a debt had already been created by the CHAPS procedures which had caused the Claimant’s account to be credited before the decision to place a marker on it and that marker had not divested the credit balance. Kerr J said: ‘The issue is whether or not a completed payment had been made by the defendants to the plaintiffs on June 26 . . If there were no authorities on this point, I think that the reaction, both of a lawyer and a banker, would be to answer this question in the affirmative. I think that both would say two things. First, that in such circumstances a payment has been made if the payee’s account is credited with the payment at the close of business on the value date, at any rate if it was credited intentionally and in good faith and not by error or fraud. Secondly, I think that they would say that if a payment requires to be made on a certain day by debiting a payor customer’s account and crediting a payee customer’s account, then the position at the end of that day in fact and in law must be that this has either happened or not happened, but that the position cannot be left in the air. In my view both these propositions are correct in law.’

Judges:

Kerr J

Citations:

[1977] QB 790

Jurisdiction:

England and Wales

Cited by:

Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 May 2022; Ref: scu.462282