Category: Banking

Christofi v Barclays Bank Plc: CA 28 Jun 1999

A bank is under no obligation of confidence to its customer so as to prevent it disclosing to another party a fact which was ascertainable from inspection of public registers, namely in this case that a caution against registration having been warned off had subsequently been removed.

Citations:

Times 01-Jul-1999, Gazette 21-Jul-1999, [1999] EWCA Civ 1695

Jurisdiction:

England and Wales

Citing:

Appeal from – Elli Christofi v Barclays Bank Plc PatC 19-Jan-1998
A bank’s duty of confidentiality did not arise as regards information received but already known pursuant to statutory duty. The claimant’s writ and statement of claim were struck out as disclosing no cause of action. As regards the allegation of an . .
Cited – Tournier v National Provincial and Union Bank of England CA 1924
The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 21 January 2023; Ref: scu.146610

Midland Bank Plc v Kidwai and Another: CA 5 Jun 1995

A bank was not under a full duty to advise a wife of a business client of the risks of signing a charge. The bank was not giving independent advice.

Citations:

Ind Summary 05-Jun-1995, [1995] 4 Bank LR 303

Jurisdiction:

England and Wales

Cited by:

Cited – Barclay’s Bank Plc v Varenka Goff CA 3-May-2001
The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 21 January 2023; Ref: scu.83710

Davis v Lloyds Bank Plc: ChD 3 Jul 2020

action for breach of statutory duty against Lloyds Bank plc – conduct by Lloyds Bank plc of a review process that was agreed between the Financial Services Authority and Lloyds Bank plc in June 2012, and later updated in 2013. The review process concerned the mis-selling of certain types of interest rate hedging products to unsophisticated customers.

Judges:

Sarah Worthington QC (Hon) sitting as a Deputy High Court Judge

Citations:

[2020] EWHC 1758 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Consumer

Updated: 31 December 2022; Ref: scu.652326

United Dominions Trust Ltd v Kirkwood: QBD 1965

For a company to be taken to carry on the business of banking money it must be able to show that it took money on current accounts.

Judges:

Mocatta J

Citations:

[1966] 1 QB 783, [1965] 3 WLR 817, [1965] 2 All ER 992

Jurisdiction:

England and Wales

Cited by:

Affirmed on appeal from – 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: 20 December 2022; Ref: scu.260041

Massey v Midland Bank Plc: CA 1995

Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. It was not necessary that the couple should be married or cohabit.

Judges:

Steyn LJ

Citations:

[1995] 1 All ER 929

Jurisdiction:

England and Wales

Cited by:

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 . .
Considered – Governor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 12 December 2022; Ref: scu.224818

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’

Judges:

Morritt LJ

Citations:

Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207

Statutes:

Law of Property Act 1925 199

Jurisdiction:

England and Wales

Citing:

Appeal from – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:

Cited – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
Cited – Hardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions, Banking

Updated: 09 December 2022; Ref: scu.81151

Bank of Baroda v Rayarel and Others: CA 19 Jan 1995

A bank may assume that a solicitor advising a customer’s wife had acted properly. The solicitors acted for both the husband and the wife before they also gave their instructions to the solicitors.

Citations:

Times 19-Jan-1995, [1995] 2 FLR 376

Jurisdiction:

England and Wales

Cited by:

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.

Banking

Updated: 09 December 2022; Ref: scu.78132

Milne v Open Access Finance Ltd and Another: ChD 12 Mar 2020

Whether the Court has power to make an order under rule 19.6 of the Civil Procedure Rules for a Consumer Credit Act claim relating to a credit agreement or a regulated agreement to continue against representatives of the defendant creditors.

Citations:

[2020] EWHC 1420 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Consumer, Banking, Litigation Practice

Updated: 09 December 2022; Ref: scu.651898

Bank Mellat v Her Majesty’s Treasury: CA 23 Oct 2015

Bank entitled to information needed for defence

Application to set aside the directions contained in two statutory instruments. The measures were ‘highly restrictive . . with very serious effects’. The court considered the procedures for the use of closed material and whether the claimant bank had been entitled to the gist of the allegations against it in closed material to ensure a fair trial.
Held: The directions were upheld. Further disclosures were to be made to provide the claimant with sufficient information about the allegations against it to enable it to give effective instructions to its special advocates in relation to those allegations

Judges:

Lord Dyson MR, Richards, Lewison LJJ

Citations:

[2015] EWCA Civ 1052, [2015] WLR(D) 427, [2016] 1 WLR 1187, [2016] CP Rep 7

Links:

Bailii, WLRD

Statutes:

Counter-Terrorism Act 2008

Jurisdiction:

England and Wales

Cited by:

Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Banking, Crime, Human Rights

Updated: 09 December 2022; Ref: scu.553680

Shah and Another v HSBC Private Bank (UK) Ltd: CA 13 Oct 2011

Judges:

Pill, Munby, Lewison LJJ

Citations:

[2011] EWCA Civ 1154, [2012] Lloyd’s Rep FC 105

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Citing:

See Also – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Lists of cited by and citing cases may be incomplete.

Banking, Crime

Updated: 09 December 2022; Ref: scu.445451

Burnett v Westminster Bank Ltd: ChD 1965

The plaintiff had a cheque account at the Borough Branch and drew a cheque on the cheque forms which had been provided. He crossed out the word `Borough’ and put in `Bromley’. He altered the address and he initialled the cheque. Later he decided to stop payment on the cheque, telephoning the Bromley Branch and informing them of this decision. The cheque had passed through the computer system which could not read the alterations made by the plaintiff. The cheque itself was forwarded to the Borough Branch at which the employees were unaware of the stop-payment instructions. At the end of the suspense period, the amount of the cheque was debited to the plaintiff’s account at the Borough Branch.
Held: The bank was unsuccessful in its contention that a new practice utilising the introduction of magnetic ink characters seeking to restrict cheques to the particular account for which they had been prepared, had been consensually agreed to by the customer. Notice of a change in condition oin cheque book covers was ineffective. A stop instruction from a bank’s customer applies to all accounts at the same branch if a specific account is not specified.
The bank is the debtor of the customer, whether the customer has a current or deposit account.

Judges:

Mocatta J

Citations:

[1966] 1 QB 742, [1965] 3 All ER 81

Jurisdiction:

England and Wales

Banking, Contract

Updated: 09 December 2022; Ref: scu.448095

Chelsea Building Society v Nash: CA 19 Oct 2010

The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash from her liability under the legal charge.
Held: The appeal succeeded. Pitchford LJ said: ‘the current state of the law is that, in order for the creditor to reserve his rights against co-debtors, he should expressly reserve those rights in his agreement. If he does not make express reservation the court will need to determine whether a term is necessarily to be implied from the circumstances which existed at the time of the agreement. In this case there was only one version of the agreement in evidence before the learned judge and that was provided by Mr Upton whose evidence the judge, to a large extent, accepted. There was no evidence before the judge of any express reservation by the claimant of its rights to pursue Ms Nash and the judge made no finding that such a reservation had expressly been made.’

Judges:

Sedley, Pitchford, Gross LJJ

Citations:

[2010] EWCA Civ 1247, [2011] BPIR 381

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Matthey v Curling HL 1922
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the . .
Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Cited – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .
Cited – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 09 December 2022; Ref: scu.425795

Al Tamimi v Khodari: CA 8 Oct 2009

Citations:

[2009] EWCA Civ 1109, [2010] LLR 42, [2009] CTLC 288

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Khodari v Al Tamimi QBD 18-Dec-2008
Claim for repayment of the balance of eighteen loans said to have been made to the Defendant. The total loaned was about pounds 1,125,000. Less repayments, and including an additional 10 percent he claims to be entitled to on the money advanced, his . .
Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 09 December 2022; Ref: scu.376229

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 properties.
Held: The court was being asked ‘whether the express appointment in the mortgage of receivers as agents of the mortgagor leads to the assumption by receivers who accept such appointment of responsibilities and duties which differ from those owed by the mortgagees, and it is important that any doubt in this regard should be resolved in the interests of mortgagees, mortgagors and receivers.’

Judges:

Aldous LJ, Tuckey LJ, Lightman J

Citations:

[2003] EWCA Civ 1409, [2004] 4 All ER 484, [2004] 1 WLR 997

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .
Cited – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Cited – 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 – 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 . .
Cited – 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 . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – 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 . .
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 – Tse Kwong Lam v Wong Chit Sen HL 1983
A company associated with the mortgagee purchased the land taken into possession by the mortgagee. The court considered the extent of its duties.
Held: ‘The mortgagee and the company seeking to uphold the transaction must show that the sale . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Lists of cited by and citing cases may be incomplete.

Banking, Negligence

Updated: 09 December 2022; Ref: scu.341787

Siporex Trade SA v Banque Indosuez: 1986

An instrument was issued by a bank under an obligation in an international trade agreement to provide a performance bond. The instrument was described in correspondence between the parties and the bank as a performance bond.
Held: ‘There is in my judgment no real hardship on the bank in imposing this strict liability to pay. A performance bond is a commercial instrument. No bank is obliged to enter into it unless they wish to and no doubt when they do so, they properly exact commercial terms and protect themselves by suitable cross-indemnities, such as were entered into in the present case.’

Judges:

Hirst J

Citations:

[1986] 2 Lloyd’s Rep 146

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.

Banking, Litigation Practice

Updated: 09 December 2022; Ref: scu.225898

In re Griffin: 1899

The endorsement and delivery of a banker’s deposit receipt with the intention to make a gift operated as a good equitable assignment of the amount on deposit at the bank. The instruction had been handed to the donee. It did not matter that no notice had been given to the bank.

Judges:

Byrne J

Citations:

[1899] 1 Ch 408

Jurisdiction:

England and Wales

Cited by:

Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 09 December 2022; Ref: scu.183417

Kredietbank Antwerp v Midland Bank Plc v Karaganda Limited v Midland Bank and Midland Bank International Finance Corporation Limited: CA 28 Apr 1999

The Bank refused to pay on letters of credit. They had required production of an original life policy, and been shown the original and a copy. The difficulties in distinguishing the two were not great, and did not justify the refusal to pay. The contract in any event explicitly allowed for a copy to be produced.

Citations:

Times 12-May-1999, [1999] All Er (D) 431, [1999] EWCA Civ 1283

Statutes:

Uniform Customs and Practice for Documentary Credits (1993) of the International Chamber of Commerce

Jurisdiction:

England and Wales

Banking

Updated: 09 December 2022; Ref: scu.146198

Etridge v Pritchard Englefield (Merged With Robert Gore and Co): CA 28 Apr 1999

Appeal of Mrs E from a judgment awarding her only nominal damages only for breach of contract by the defendant solicitors in respect of their failure to advise her properly or at all in connection with the acquisition and financing by her of a property.

Judges:

Morritt, May, Tuckey LJJ

Citations:

[1999] PNLR 839, [1999] EWCA Civ 1280, [1999] Lloyd’s Rep PN 702

Links:

Bailii

Jurisdiction:

England and Wales

Land, Equity, Banking, Legal Professions, Undue Influence

Updated: 09 December 2022; Ref: scu.146195

McLean and Another v Trustees of The Bankruptcy Estate of Dent and Others: ChD 26 Oct 2016

Marshalling your Dogs Equitably

Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of marshalling did appear to apply as between the bank and M. The bank had been able resort to two securities in support of its lending to the partnership: first the agricultural charge over partnership assets (including the dog), and secondly third party legal charges over the farms.

Judges:

Norris J

Citations:

[2016] EWHC 2650 (Ch), [2017] Ch 422, [2017] BPIR 164, [2017] 3 WLR 198, [2017] WLR(D) 157

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – In Re Ritson, Ritson v Ritson CA 1899
The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] . .
Cited – In Re Ritson ChD 1898
. .

Cited by:

Appeal from – Highbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
Lewison LJ discussed the operation of the principle of marshalling: ‘One consequence of the application of the principle is that if the first mortgagee with more than one security satisfies his debt out of the property over which the second . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Banking

Updated: 07 December 2022; Ref: scu.570475

Skipsredittforeningen v Emperor Navigation SA: 1997

The court considered the reaonableness of a contract clause which sought to exclude liability for misrepresentation: ‘The consequence of the approach adopted in Stewart Gill [[1992] 1 QB 600] is (as the present case shows) that the court may hear arguments that a term is or may be unreasonable (and so wholly void in relation to misrepresentation or breach of contract claims, as the case may be) for reasons or in respects that have nothing to do with the facts of the actual case. Assuming that the whole term will be invalid in this way if it fails the requirement of reasonableness, the court should, I think, take care to consider the clause as a whole in the light of the circumstances when the contract was made, in order to judge in the round whether it satisfies the requirement of reasonableness. The court should not be too ready to focus on remote possibilities or to accept arguments that a clause fails the test by reference to relatively uncommon or unlikely situations.’
The claimant sought summary judgement for sums due under a loan agreement that provided, inter alia: ‘All payments to be made by or on behalf of the Borrowers pursuant to this Agreement . . shall be made without (a) set-off’. The defendant submitted that this clause was unreasonable under UCTA.
Held: Mance J rejected this submission holding that the clause was fair and reasonable. In his view ‘[s]uch a clause in a loan facility like the present is generally familiar, sensible and understandable’.

Judges:

Mance J

Citations:

[1997] 2 BCLC 398, [1998] 1 Lloyd’s Rep 66

Statutes:

Unfair Terms in Consumer Contracts Regulations 1999 4(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Consumer

Updated: 06 December 2022; Ref: scu.266862

Lloyds Bank plc v Voller: 2002

Citations:

[2002] 2 All ER (Comm) 978

Jurisdiction:

England and Wales

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 December 2022; Ref: scu.267123

New Bridge Holdings v Barclays Bank: 10 Feb 2006

The court suggested as a way of dealing with problems under the Act that attempts should be made: ‘to provide for some procedure whereby the arbitrary and capricious exercise of power should be prevented by the court being told, in confidence by the relevant authority, whether or not an investigation is in progress and the general nature of that investigation, so that the court could form a view – a view as to the likely success of the applicant at trial in obtaining the relief he seeks or the Bank committing an offence if it makes the transfer without the relevant consent.’

Judges:

Judge Norris QC

Citations:

Unrepoted 1 February 2006

Statutes:

Proceeds of Crime Act 2003

Jurisdiction:

England and Wales

Cited by:

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.

Banking, Criminal Practice

Updated: 06 December 2022; Ref: scu.243376

Sainsbury’s Supermarkets Ltd v Visa Europe Services Llc and Others: SC 17 Jun 2020

This appeal concerns whether certain rules of the Visa and Mastercard payment card schemes have the effect of restricting competition, in breach of article 101(1) of the Treaty on the Functioning of the European Union and equivalent national legislation.
Held: The banks’ appeal failed.

Judges:

Lord Reed (President), Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Hamblen

Citations:

[2020] UKSC 24

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Commercial, Banking, European

Updated: 05 December 2022; Ref: scu.651725

Ian Stach v Baker Bosley Ltd: 1958

The parties contracted for the sale of ship plates fob Benelux port for shipment to Canada in August-September 1956 with payment to be by confirmed irrevocable credit. The buyers failed to open the credit either by August 1st or by August 8th when the sellers called for it to be opened immediately.
Held: It was the duty of the buyers to establish the credit by August 1st at the latest and, although the sellers had waived their right to treat the contract as repudiated by reason of their failure to do so until such time had elapsed after August 8th as could be regarded as ‘immediately’, on August 14th, the sellers had been entitled to accept, as they did, the buyers’ breach was a repudiation of the contract. What was required was that by the time the shipping period started the seller should have received from the banker the assurance that if he performed his part of the contract he would receive payment.
A commercial letter of credit or banker’s credit is more than ‘a mere method of payment’ and ‘creates a direct liability upon the banker independent of the contract of sale, and is an undertaking by the banker that if the seller presents the required documents in the required time he will receive payment of the contract price’.

Judges:

Diplock J

Citations:

[1958] 2 QB 130

Jurisdiction:

England and Wales

Citing:

Binding – Pavia and Co SPA v Thurmann-Nielsen CA 1952
In cif contracts the credit must be opened at the latest at the beginning of the shipment period. The seller is entitled, before he ships the goods to be assured that when he does so, he will get paid. . .

Cited by:

Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 05 December 2022; Ref: scu.396479

Florentino Comm Giuseppe Sri v Farnesi and Another: ChD 11 Feb 2005

Company directors drew and signed company cheques, but the cheques did not bear the word ‘limited’ or permitted substitute. The cheques were not met and the claimants sued the signatories personally.
Held: The section made the signatory of such a cheque personally liable. Once presented and refused, it became ‘not duly paid’. Under section 45 of the 1882 Act, the drawer was discharged if the cheque was not presented, but under section 46 presentation was sometimes dispensable.

Judges:

Nicholas Warren QC

Citations:

Times 03-Mar-2005

Statutes:

Companies Act 1985 349(4), Bills of Exchange Act 1882 45

Jurisdiction:

England and Wales

Citing:

Cited – British Airways Board v Parish 1979
Once a cheque is presented for payment and payment is refused, the cheque is deemed not ‘duly paid’. . .
Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 05 December 2022; Ref: scu.223441

Suriya and Douglas (a Firm) v Midland Bank Plc: CA 24 Feb 1999

The plaintiff firm of solicitors appealed against a decision refusing its claim for dmages after the defendant, its bankers, had failed to inform them of the existence of an account which would have paid them a higher rate of interest.
Held: The appeal failed: ‘A bank’s relationship with a client is not without more one in which duties of disclosure are imposed upon the bank as a matter of general law and there is nothing in the relationship of this particular customer with this particular bank which results in the imposition of such duties. ‘

Citations:

[1999] EWCA Civ 851

Jurisdiction:

England and Wales

Banking

Updated: 05 December 2022; Ref: scu.145766

Mercantile Credit Co Ltd and Another v Fenwick and Others; Same v Speechly Bircham: CA 12 Feb 1999

Solicitors retained to obtain signatures to a bank’s charge by husband and wife to secure his debts was required to act in accordance with current good practice. No duty to ensure certificate obtained that husband and wife had separate advisers.

Citations:

Gazette 10-Mar-1999, Times 23-Feb-1999, [1999] EWCA Civ 778

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence, Banking

Updated: 05 December 2022; Ref: scu.83640

Stimpson v Smith: CA 11 Mar 1999

The court was asked whether a guarantor who had made a payment discharging the guarantee without a formal demand but following negotiations with the creditor, and in circumstances where otherwise the creditor would probably have made a demand, could claim contribution in equity from the co-guarantor.
Held: Where one joint guarantor orally agrees to repay part of the guaranteed overdraft after a formal demand, even though not against the guarantors, he is entitled to an appropriate contribution from his co-guarantor.

Judges:

Peter Gibson LJ, Tuckey LJ

Citations:

Times 22-Mar-1999, Gazette 14-Apr-1999, [1999] EWCA Civ 952, [1999] Ch 340

Jurisdiction:

England and Wales

Cited by:

Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 05 December 2022; Ref: scu.89558

Kadi v Commission: ECFI 30 Sep 2010

ECFI Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations – Sanctions Committee – Subsequent inclusion in Annex I to Regulation No 881/2002 – Action for annulment – Fundamental rights – Right to be heard, right to effective judicial review and right to respect for property.

Citations:

[2010] ECR II-5177, [2010] EUECJ T-85/09, [2011] Lloyd’s Rep FC 43, [2011] All ER (EC) 169, [2011] 1 CMLR 24

Links:

Bailii

Statutes:

Regulation (EC) No 881/2002

Jurisdiction:

European

Cited by:

Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Crime, International, Banking

Updated: 04 December 2022; Ref: scu.425265

Hulme v Brigham: 1943

Citations:

[1943] 1 All ER 204, [1943] 1 KB 152

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 04 December 2022; Ref: scu.272307

Revenue and Customs Prosecution Office, Regina (on the Application of) v Lloyds TSB Plc: Admn 2 Oct 2007

An assets freezing order had been made. The defendant had a substantial sum of money with the bank in a non-interest bearing account. The bank moved the assets to an interest bearing account but e prosecutor was not informed. An order finding the defendants in contempt of the order was sought.
Held: ‘The decision on the part of the bank to change that identification without the consent of the person seeking the order, or of the court, was to my mind in clearest breach, by both Mr R and the bank, of the terms of the order.’

Citations:

[2007] EWHC 2393 (Admin), [2008] Lloyd’s Rep FC 100

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice, Banking, Contempt of Court

Updated: 04 December 2022; Ref: scu.261645

Heald v O’Connor: 1971

A surety for a company’s obligations under a debenture promised: ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as a primary obligor and not merely as a surety’.
Held: Fisher J said: ‘The obligation is to pay the principal moneys to become due under the debenture if and whenever the company makes default. The statement of claim refers to it as a guarantee and pleads the company’s default and the consequent liability of the guarantor. The only straw for the plaintiff to clutch is the phrase ‘as a primary obligor and not merely as a surety’ but that, in my judgment, is merely part of the common form of provision to avoid the consequences of giving time or indulgence to the principal debtor and cannot convert what is in reality a guarantee into an indemnity.’

Judges:

Fisher J

Citations:

[1971] 1 WLR 497

Jurisdiction:

England and Wales

Cited by:

Cited – General Produce Co v United Bank Ltd 1979
Lloyd J considered a term in a guarantee agreement as follows ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as . .
Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 04 December 2022; Ref: scu.261295

General Credits (Finance) Pty Ltd v Stoyakovich: 1975

A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. On an application by the mortgagee for summary judgment, Dunn J. in the Queensland Supreme Court gave the mortgagors conditional leave to defend; if there was a sale at the alleged undervalue of $l0,200, the mortgagee’s claim should be reduced by that sum.

Citations:

[1975] Qd R 352

Jurisdiction:

Australia

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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 30 November 2022; Ref: scu.184793

Governor and Company of Bank of Scotland v Bennett and Another: CA 21 Dec 1998

The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been reluctant to sign, and claimed she had not been given independent advice. The bank appealed saying that notwithstanding the defeat of the guarantee, the charge remained binding. The judge found the husband’s undue influence on the wife in respect of both the charge and the guarantee.
Held: The bank could not be fixed with notice of the wife’s reluctance to execute the charge, since independent solicitors were instructed. The bank were not put on enquiry by the circumstances to suggest that she may have been acting under her husband’s undue influence. The bank’s appeal was upheld.

Judges:

Lord Justice Auld, Lord Justice Chadwick, Sir Christopher Staughton

Citations:

[1998] EWCA Civ 1965, [1999] 1 FLR 1115

Jurisdiction:

England and Wales

Citing:

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 – Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
Cited – 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 . .
Appeal from – Governor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

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.

Banking, Land, Undue Influence

Updated: 30 November 2022; Ref: scu.145444

Boyse (International) Ltd v Natwest Markets Plc and Another: ChD 27 May 2020

Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on a limitation point by an application made under CPR 24.2 and preferably after the claimant has had an opportunity to plead its case. That is no more than a statement of good practice. It is desirable that the court should be able to consider evidence that is relevant to knowledge, whether objective or subjective, and it will generally be preferable for the court to be evaluating the application by applying the well established jurisprudence about CPR 24.2 rather than focussing on the statement of case.
The claim arising from the LIBOR implied terms is clearly time barred. The device of seeking a declaration does not assist for the reasons already given.
There is nothing in the claim that can be salvaged. The particulars of claim and the claim form will be struck out, or judgment will be entered in favour of the Bank under CPR 24.2, and the application for permission to amend will be dismissed.

Judges:

Chief Master Marsh

Citations:

[2020] EWHC 1264 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wragg and Another v Partco Group Ltd UGC Ltd CA 1-May-2002
A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made . .
Cited – Cassa Di Risparmio Della Repubblica Di San Marino Spa v Barclays Bank Ltd ComC 9-Mar-2011
The claimant alleged misselling of a complex financial product by the defendant.
Held: Hamblen J set out the relevant principles as to misrepresentation in this context, namely that in a deceit case, the representor should understand that he . .
Cited – Kim v Park and Others QBD 25-Apr-2013
Where a statement of case is found to be defective, the court should consider whether the defect may be cured by amendment and, if it might be, the court should not strike it out without first giving the party concerned an opportunity to amend it . .
Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 21-Dec-2016
Claim for alleged misselling of interest rate swap products. . .
Cited – Woodeson and Another v Credit Suisse (UK) Ltd CA 17-May-2018
Appeal from a decision to grant the defendant bank summary judgment in respect of certain of the claimants’ claims. The result of the judgment is that the claimants can pursue a claim in deceit and contend that such claim is neither time-barred nor . .
Cited – JSC Bank of Moscow v Kekhman and Others ComC 29-Oct-2015
Two related applications were before the court: (i) the claimant’s application dated 27 March 2015 to amend the Particulars of Claim and (ii) the first defendant’s application dated 13 July 2015 to strike out the Particulars of Claim, alternatively . .
Preferred – Granville Technology Group Ltd and Others v Infineon Technologies Ag and Another ComC 25-Feb-2020
Flaux J summarised the principles to be applied when considering what discovery of a fraud was, and what was ‘reasonable diligence’ so as to set the limitation clock started.
He observed that: ‘If section 32(1) involved a statutory assumption . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Barnstable Boat Co Ltd v Jones CA 2008
Waller LJ (with whom Moore-Bick and Moses LJJ agreed) set out the test for discovery of a fraud as being knowledge of the precise deceit which the claimant alleges has been perpetrated on him. . .
Cited – Allison and Another v Horner CA 12-Feb-2014
Aikens LJ said that mere knowledge of fraud in a general sense is not enough to start the limitation period running: ‘ . . knowledge of the deceit alleged on the part of a claimant’s agent will be insufficient to start the limitation period running . .
Cited – Hussain v Mukhtar QBD 2-Mar-2016
Allegation of fraudulent misrepresentation to secure business investment.
Held: The context may be relevant to what the claimant could with reasonable diligence have discovered but the alleged or actual naivety or inexperience of a claimant . .
Cited – Gresport Finance Ltd v Battaglia CA 23-Mar-2018
Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . .
Cited – DSG Retail Limited and Another v Mastercard Incorporated and Others CAT 14-Feb-2019
Roth J explained Henderson L’s observation in Gresport as meaning that: ‘ . . the concept of reasonable diligence is to be applied on the assumption that the claimant is on notice of the need to investigate’. . .
Cited – Cunningham v Ellis and Others ComC 30-Nov-2018
For limitation purposes, discovery of an alleged fraud means knowledge of the ‘essential facts constituting the alleged fraud’ is required. . .
Cited – Saeed and Another v Ibrahim and Others ChD 9-Jan-2018
The court considered the overlap between CPR 3.4(2)(a) and CPR 24.2 . .
Cited – Hughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice, Torts – Other

Updated: 27 November 2022; Ref: scu.650953

Woodeson and Another v Credit Suisse (UK) Ltd: CA 17 May 2018

Appeal from a decision to grant the defendant bank summary judgment in respect of certain of the claimants’ claims. The result of the judgment is that the claimants can pursue a claim in deceit and contend that such claim is neither time-barred nor precluded by anti-set off provisions in their contract with the bank. No other claim is permissible. That is because it is arguable that the time for a deceit claim (as opposed to claims for negligent advice or breach of statutory duty) is extended pursuant to section 32 of the 1980 Act and that the anti-set off provisions may be unreasonable clauses within the relevant statutory provisions, on which the bank may not rely.

Judges:

Longmore, Leggatt LJJ

Citations:

[2018] EWCA Civ 1103

Links:

Bailii

Statutes:

Limitation Act 1980 32

Jurisdiction:

England and Wales

Cited by:

Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Banking, Limitation, Contract, Torts – Other

Updated: 27 November 2022; Ref: scu.616341

Versorgungswerk Der Zahnarztekammer Schleswig-Holstein v ECB: ECFI 4 Jun 2015

CJ Judgment – Access to documents – Decision 2004/258/EC – Trade Agreement of 15 February 2012 between Greece and the ECB and national central banks of the Eurosystem – Annexes A and B – Partial refusal of public access -Interest – monetary policy of a Member State and Union – Financial position of the ECB and national central banks of the Eurosystem – Financial system stability in the EU

Judges:

G. Berardis, P

Citations:

T-376/13, [2015] EUECJ T-376/13, ECLI: EU: T: 2015: 361

Links:

Bailii

Jurisdiction:

European

Banking

Updated: 27 November 2022; Ref: scu.547709

British Arab Commercial Bank Plc v Bank of Communications and Another: ComC 17 Feb 2011

Blair J said: ‘It is not in dispute that, . . it must be a ‘real choice’ which the parties had a clear intention to make. A tacit choice must only be found where it is reasonably clear that it is a genuine choice by the parties (See Clarke J’s review of academic authority in [Oldendorff] . . ) It follows that both parties must be shown with reasonable certainty to have had a common intention, although I consider it is unnecessary to distinguish between subjective or objective intention in this regard. The fundamental question is whether in the absence of an express choice there was nevertheless a real choice. As the Giuliano-Lagarde put it: ‘this article does not permit the court to infer the choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Article 4’.

Judges:

Blair J

Citations:

[2011] EWHC 281 (Comm), [2011] 1 Lloyd’s Rep 664

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Egon Oldendorff v Libera Corporation 1996
Conflict of laws – ‘It is sufficient to say that the party relying upon art. 3 must demonstrate with reasonable certainty that the parties have chosen a particular law as the governing or applicable law. ‘ . .

Cited by:

Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction

Updated: 27 November 2022; Ref: scu.429633

Lloyds Bank Plc v Independent Insurance Co Ltd: CA 26 Nov 1998

The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was not entitled to restitution of payment once made.

Judges:

Gibson LJ, Thorpe LJ, Waller LJ

Citations:

Times 03-Dec-1998, [2000] QB 110, [1998] EWCA Civ 1853, [1999] 1 All ER (Comm) 8, [1999] 2 WLR 986, [1999] Lloyds Rep Bank 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank v WJ Simms and Cooke (Southern) Ltd QBD 1979
The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a . .
Cited – Pritchard v Hitchcock 6-Jun-1843
P (the plaintiff) had drawn bills requiring WH to pay P a sum of money three months after date. WH accepted them, but to gain more time for WH, GH (the defendant) guaranteed payment of the bills. P pressed for payment. WH did ultimately pay P but . .
Cited – Kerrison v Glyn, Mills, Currie and Co HL 1912
The plaintiff arranged with his bankers for them to honour cheques of one Patterson and when they advised the plaintiff of the amount of the cheques so honoured, the plaintiff would pay Kessler and Co. The plaintiff paid andpound;500 to the . .
Cited – Aiken v Short 1856
The testator made one will under which C was to be a residuary legatee. He then made a second will under which C was only to take a defeasible annuity. After the T’s death, S advanced andpound;200 to C on the security of an equitable charge of C’s . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 27 November 2022; Ref: scu.83110

Williams v Central Bank of Nigeria: SC 19 Feb 2014

Bank not liable for fraud of customer

The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a trustee, and subject to the exception which would extend the limitation period.
Held: The bank’s appeal succeeded. The definition of ‘trustee’ in section 21 of the 1980 Act did not apply to include someone deemed to be a trustee for acting as a dishonest assistant or knowing recipient within a fraudulent scheme. He could only be a consructive trustee.

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hughes

Citations:

[2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, UKSC 2012/0113

Links:

Bailii, WLRD, Bailii Summary, SC Summary, SC

Statutes:

Limitation Act 1980 21(1)(a)

Jurisdiction:

England and Wales

Citing:

See Also – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
See Also – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
See Also – Central Bank of Nigeria v Williams CA 3-Apr-2012
The claimant alleged that he had been defrauded and accused the appellant of involvement in the fraud. The Bank appealed against a finding that the claim against it was not time limited.
Held: The appeal failed. The action was by a beneficiary . .
See Also – Williams v Central Bank of Nigeria CA 2-Jul-2013
The claimant appealed against an order dis-allowing service on it out of the jurisdiction.
Held: Dr Williams’ appeal in respect of the Nigerian law claim was allowed but rejected in respect of the trust claim and the contract claim. . .
Cited – Beckford v Wade PC 1805
(Jamaica) The board was concerned with the application of the English statutes of limitation, which were held to apply in Jamaica subject to a Jamaican statute excepting (among other people) trustees. Sir William Grant MR said: ‘The question then . .
Cited – Hovenden v Lord Annesley 1806
Referring to a judgment of Lord Macclesfield on the application of statutory limitation by analogy to claims against trustees for breach of trust, he continued: ‘Now I take it that the position which has been laid down, ‘that trust and fraud are not . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – Bonney v Ridgard 3-Dec-1784
A purchaser of leasehold premises from an executor need not (in general) see to the application of the purchase money, nor need there be any recital in such an assignment of the purpose for which it is sold ; but if on the face of the assignment it . .
Cited – Wilson v Moore 22-Mar-1834
Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of . .
Cited – Barnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .
Cited – Soar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .
Cited – In re Gallard 1897
. .
Cited – In re Eyre-Williams 1923
. .
Cited – Heynes v Dixon 1900
. .
Cited – In re Jane Davies 1891
An action brought by a residuary legatee against an executor for the administration of the testator’s estate is an action for a legacy.
An executor, qua executor, is not an express trustee. . .
Cited – In re Lacy; Royal General Theatrical Fund Association v Kydd 1899
Equity prevents trustees from raising limitation against their beneficiaries.
An executor, qua executor, is not an express trustee. . .
Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Deg-Deutsch Investitions Und Entwicklungsgesellschaft Mbh v Koshy (No 3) Gwembe Valley Development Co Ltd v Same (No 3) ChD 26-Oct-2001
A claim against a company director which alleged a misapplication of company assets involving a fraudulent, or dishonest breach of trust, was not subject to a limitation period. A company was alleged to have fraudulently hidden certain profits. The . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Cited – Cattley and Another v Pollard and Another ChD 7-Dec-2006
The first defendant solicitor misappropriated money from an estate he was administering. The beneficiaries later commenced proceedings against his wife, alleging knowing assistance. She said that that claim was out of time. The claimant responded . .
Cited – Peconic Industrial Development Ltd v Lau Kwok FAI 27-Feb-2009
Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other, Limitation

Leading Case

Updated: 27 November 2022; Ref: scu.521993

Palmer v Hendrie: 1859

Citations:

(1859) 27 Beav 349

Jurisdiction:

England and Wales

Cited by:

Distinguished – 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 . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 26 November 2022; Ref: scu.224112

Bank of China v NBM LLC and others: CA 18 Dec 2001

A world wide asset freezing order, should as regards property in other jurisdictions allow that those having control of such assets must be free to deal with them as required by local law and other legal obligations. An order had included a ‘Baltic proviso’ The appellant suggested it was not correct.
Held: A third party should not be required to breach its contractual obligations. The onus should be upon the claimant to obtain relief from the local court rather than upon the third party. The proviso was properly included, and indeed it should be included in the standard form..

Judges:

Lord Justice Pill, Lord Justice Tuckey, And, Lord Justice Jonathan Parker

Citations:

Times 10-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 1933

Links:

Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982 25

Jurisdiction:

England and Wales

Citing:

Cited – Baltic Shipping Co v Translink Shipping Ltd 1995
Further protection was afforded to those holding overseas assets of persons subject to Mareva injunctions. . .
Cited – Babanaft International Co SA v Bassatne CA 30-Jun-1988
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute.
Held: There was nothing to preclude English courts from granting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 25 November 2022; Ref: scu.167217

Eyles v Ellis: 1827

There had been an incoming transfer for value on a particular date and the issue was whether the payment had been made on that date.
Held: The question as to whether a payment had been made on the value date was to be tested by reference to an account entry at the close of business on that date. An account could be held to be effectively credited if the bank’s book entries showed a credit and regardless of whether there was notice of that credit to the customer. ‘… on the 8th a sum was actually placed to the plaintiff’s account; and though no money was transferred in specie, that was an acknowledgement from the bankers that they had received the amount from Ellis. The plaintiff might then have drawn for it, and the bankers could not have refused his draft.’ and ‘The issue is whether or not a completed payment had been made by the defendants to the plaintiffs on June 26. This is a question of law. If the answer is ‘Yes,’ it is not contested that the plaintiffs have a good cause of action. 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:

Best CJ

Citations:

(1827) 4 Bing 112

Jurisdiction:

England and Wales

Banking

Updated: 24 November 2022; Ref: scu.200663

Robson v Smith: 1895

The court approved the statement that floating charges ‘constitute a charge but give a licence to the company to carry on its business’.

Judges:

Romer J

Citations:

[1895] Ch D 118

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 24 November 2022; Ref: scu.198017

Cheltenham and Gloucester Plc v Appleyard and Another: CA 15 Mar 2004

The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, but on the day it was to be completed, provisional liquidators to BCCI were appointed, who refused to acknowledge the discharge of their charge, and the C and G charge could only have protection as an equitable charge. BCCI acknowledged that they had received the sums due, and so had BBBS.
Held: Even though the C and G had received some reduced security, they were entitled to be subrogated to the first chargees whose loan was repaid by their funds. Otherwise the Appleyards would be unjustly enriched to the extent that their property was burdened with a lesser security. Subrogation was a private remedy intended to avoid unjust enrichment.

Judges:

Lord Justice Kennedy, Lord Phillips Of Worth Matravers, Mr Lord Justice Neuberger

Citations:

Times 29-Mar-2004, [2004] EWCA Civ 291, Gazette 01-Apr-2004, [2004] 13 EG 127, [2004] 13 EG 12

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Paul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
Applied – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .

Cited by:

Cited – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Cited – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Banking, Land, Equity

Updated: 24 November 2022; Ref: scu.194462

Babanaft International Co SA v Bassatne: CA 30 Jun 1988

The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute.
Held: There was nothing to preclude English courts from granting Mareva type injunctions against defendants extending to assets outside the jurisdiction, but the court insisted that there can be no question of such orders operating directly upon the foreign assets by way of attachment, or upon third parties, such as banks, holding the assets. The effectiveness of such orders for these purposes can only derive from their recognition and enforcement by the local courts, as should be made clear in the terms of the orders to avoid any misunderstanding suggesting an unwarranted assumption of extraterritorial jurisdiction.
Nicholls LJ was concerned at the ‘extraterritorial vice’ of unqualified orders. He pointed out ‘The enforcement of the judgment in other countries, by attachment or like process, in respect of assets which are situated there is not affected by the order. The order does not attach those assets. It does not create, or purport to create, a charge on those assets, nor does it give the plaintiff any proprietary interest in then. The English court is not attempting in any way to interfere with or control the enforcement process in respect of those assets.’
Kerr LJ said: ‘In my view, the key to the proper exercise of any extra-territorial jurisdiction must lie in the question whether there is international reciprocity for the recognition and enforcement of the type of order which is under consideration, in this case a Mareva injunction or a variant of it purporting to operate on the defendants’ assets abroad.’ and
‘Apart from any EEC or EFTA connection, there is in any event no jurisdictional (as opposed to discretionary) ground which would preclude an English court from granting a pre-judgment Mareva injunction over assets situated anywhere outside the jurisdiction, which are owned or controlled by a defendant who is subject to the jurisdiction of our courts, provided that the order makes it clear that it is not to have any direct effect on the assets or on any third parties outside the jurisdiction save to the extent that the order may be enforced by the local courts. Whether an order which is qualified in this way would be enforced by the courts of states where the defendant’s assets are situated would of course depend on the local law . .’
Kerr LJ considered the standard proviso in such an order protecting the interests of third parties: ‘We understand that this is nowadays a standard type of proviso to Mareva injunctions, and it is of course inserted for the benefit of third parties who may be affected by the freezing order. My reason for quoting it is that it illustrates that, although Mareva injunctions are orders made in personam against defendants, they also have an in rem effect on third parties. It shows that, save to the extent of the proviso, the order is binding on third parties who have notice of the injunction. Although the passage in the judgment of Lord Denning MR in Z Ltd v. A [1982] 1 All ER 556 at 562, [1982] QB 558 at 573 headed ‘Operation in rem’ may well go too far in a number of respects, there cannot be any doubt that Mareva injunctions have a direct effect on third parties who are notified of them and who hold assets comprised in the order.’
Neill LJ said: ‘I am satisfied, however, that the Court has jurisdiction to grant a mareva injunction over foreign assets, and that in this developing branch of the law the decision in Ashtiani v. Kashi may require further consideration in a future case.’

Judges:

Kerr, Neill and Nicholls LJJ

Citations:

[1990] Ch 13, Independent 30-Jun-1988, [1989] 1 All ER 433

Jurisdiction:

England and Wales

Citing:

Limited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Ashtiani v Kashi CA 1986
On the grant of a Mareva injunction, the defendant had disclosed assets outside the jurisdiction in bank accounts in Europe. The plaintiff then obtained injunctions relating to those assets. The defendant obtained the discharge of those orders on . .

Cited by:

Cited – Kuwait Oil Tanker Company SAK and others v UBS AG, Qabazard HL 12-Jun-2003
Mr Qabazard conspired with others to defraud the Kuwait Oil Tanker Company SAK and Sitka Shipping Inc of large sums of money. On 16 November 1998 Moore-Bick J gave judgment against him for over US$130m. Historically sums had been placed with the . .
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 . .
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – Bank of China v NBM LLC and others CA 18-Dec-2001
A world wide asset freezing order, should as regards property in other jurisdictions allow that those having control of such assets must be free to deal with them as required by local law and other legal obligations. An order had included a ‘Baltic . .
Endorsed – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
Applied – Republic of Haiti v Duvalier CA 1989
The defendant had fled from Haiti with a large part of that country’s assets while in power. Proceedings were pending in France which gave no jurisdiction to grant a worldwide freezing or disclosure order. He had used a firm of English solicitors as . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Banking, Litigation Practice

Updated: 24 November 2022; Ref: scu.183518

Komercni Banka, A S v Stone and Rolls Ltd and Another: ComC 15 Nov 2002

Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of causing the victim to enter into a venture or transaction which he would not otherwise have entered into, and the wrongdoer alleges that the victim has received a subsequent benefit which he would not have received but for entering into the venture or transaction, it seems to me that the question to be asked is whether the receipt of the benefit was not merely a result of the venture or transaction, in a historical sense, but was part of the complex of obligations and benefits intrinsic, ie belonging naturally, to the venture or transaction. Otherwise, it is hard to know where to draw the line.’

Judges:

Toulson J

Citations:

[2002] EWHC 2263 (Comm), [2003] 1 Lloyd’s Rep 383

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 24 November 2022; Ref: scu.178934

Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others: CA 25 Nov 1999

Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies already received. Such policies were taken out for the benefit of the lender not the borrower, and the insurance company being subrogated to the lender, no double recovery was involved.

Judges:

Mance LJ

Citations:

Times 25-Nov-1999, Gazette 08-Dec-1999, [2000] 1 WLR 857

Jurisdiction:

England and Wales

Cited by:

Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.

Damages, Insurance, Banking, Equity

Updated: 24 November 2022; Ref: scu.77841

Aiken v Short: 1856

The testator made one will under which C was to be a residuary legatee. He then made a second will under which C was only to take a defeasible annuity. After the T’s death, S advanced andpound;200 to C on the security of an equitable charge of C’s interest under the first will. S died, the defendant being his executrix. Subsequently a bank (represented by the plaintiff) advanced money to C who conveyed to the bank his supposed interest under the first will subject to S’s interest. The defendant applied to C for the payment of the andpound;200 and interest. C referred the defendant to the bank by whom C’s debt to S was paid. The second will was then discovered and the bank sought recovery from the defendant of the money paid to her.
Held: Pollock CB said the defendant had the right to receive the money owed by C, and said that he thought that the bank must be considered to have paid that sum for C. He said that the case seemed to him to fall within the class of cases in which a man has paid money ‘in his own wrong’. He continued: ‘It may, also, be put upon this ground, that the bankers paid this money rather as the agents of . . . C than as their own money. If so, it cannot be recovered back.’ Platt B referred to the defendant wanting the payment by C of his debt and applying to C for payment. He said: ‘He refers her to the bank. They, acting as his agents, upon being referred to, pay his debt. How can that be properly recoverable? Surely the debt is satisfied. The debt was due. It is not as though there were no debt due, and there was a mistake of fact; but here the debt was actually due, and the money was paid to satisfy that debt. It appears to me clear, beyond all question, that this money cannot be recovered back.’

Judges:

Pollock CB, Platt B, Bramwell B

Citations:

(1856) 1 H and N 210

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Lists of cited by and citing cases may be incomplete.

Banking, Equity

Updated: 23 November 2022; Ref: scu.246225

Bank Melli Iran v Barclays Bank Ltd: 1951

Citations:

[1951] 2 Lloyds Rep 362

Jurisdiction:

England and Wales

Cited by:

Cited – Marconi Communications International Ltd v Pt Pan Indonesia Bank Ltd Tbk ComC 4-Feb-2004
Marconi claimed damages for the defendant’s alleged breach of contract in respect of the latter’s failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleged that Panin Bank wrongfully failed to accept drafts properly . .
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.

Agency, Banking

Updated: 23 November 2022; Ref: scu.224968

Cityland and Property (Holdings) Ltd v Dabrah: 1968

The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium rather than a specified interest rate. The mortgage also provided that the full premium should become payable upon the mortgagor’s default. The premium was effectively 57% of the amount of the loan, and had the effect of making the interest rate upon default an amount of 38%.
Held: The court can take into account such issues as the identity of the mortgagor when looking at any assertion of undue influence. A necessitous borrower may be overborne by a more powerful lender in circumstances giving rise to unconscionability on the part of the lender. Whilst there was no rule in equity precluding a lender from stipulating for a collateral advantage that was fair and reasonable, the charging of a premium of this order had the effect of destroying the borrower’s equity in the security, and that such a collateral advantage was in the circumstances unconscionable.

Citations:

[1968] Ch 166

Jurisdiction:

England and Wales

Citing:

Applied – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .

Cited by:

Cited – Multiservice Bookbinding Ltd v Marden ChD 1978
To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence

Updated: 23 November 2022; Ref: scu.219907

Owo-Samson v Barclays Bank Plc, Boyden: CA 21 May 2003

The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was perceived to be recalcitrant and unco-operative.
Held: The statutory demand could only include sums due at that time to the bank, and had been included wrongly. Similarly it was inappropriate to try to include speculative costs. At later stages, such contingent liabilities might properly be allowed for (but still excluding addition costs associated with the character of the bankrupt). The court had a discretion as to whether to allow cross examination.

Judges:

Ward, Carnwath LJJ, Newman J

Citations:

[2003] EWCA Civ 714, Times 27-May-2003, Gazette 17-Jul-2003, [2003] BPIR 1373

Links:

Bailii

Statutes:

Insolvency Rules 1986, Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Applied – Platts v Western Trust and Savings Ltd CA 9-Jun-1993
The court examined the extent of the Judge’s discretion on hearing an application to set aside a statutory demand. When property was valued for the purposes of a statutory demand, it should be as on a forced sale. A ‘forced sale’ was taken as one . .
Cited – Re a Debtor ChD 1994
The ordinary procedure of an insolvency involves two-stage, a statutory demand followed by a bankruptcy petition. The service of a ‘statutory demand’ in the prescribed form is simply one means of establishing ‘inability to pay’. The procedure is . .
Cited – Re Button 1905
A secured petitioner’s estimate of the value of his property was challenged.
Held: The petitioner’s estimate was made ‘at his own risk’, in that, if at undervalue, he would still be bound by it in the bankruptcy; but that, provided the . .
Cited – Royal Bank of Scotland v Farley CA 1996
If it can be demonstrated by evidence subsequent to the bankruptcy order, that the debts on which the petition was founded did not exist, then it would be right to say that there was a ground existing at the time the order was made on which it . .
Cited – Holder and Others v APC Supperstone and Others ChD 24-Nov-1999
Tenants obtained a charging order against their landlord, and, after his bankruptcy, incurred substantial costs defending their charge against other claimants. The trustee declined to allow payment of the costs.
Held: The costs were properly . .
Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 23 November 2022; Ref: scu.182349

Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2): CA 31 Jul 1998

Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and allegations of undue influence is a question of notice.

Citations:

Times 17-Aug-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1372, [1998] 4 All ER 705

Jurisdiction:

England and Wales

Citing:

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 – Powell v Powell 1900
Strong moral pressure was applied by a stepmother to a girl who was only just twenty one.
Held: She was regarded as not really capable of dealing irrevocably with her parent or guardian in the matter of a substantial settlement. Where a . .
Cited – Wright v Carter CA 1903
The plaintiff sought to set aside a gift that he had made to his solicitor asserting undue influence.
Vaughan Williams LJ said: ‘. . whenever you have these fiduciary relations (and in the present case we have to deal with the particular . .

Cited by:

Disapproved in part (at 705) – Barclay’s Bank Plc v Varenka Goff CA 3-May-2001
The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its . .
Disapproved – 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 . .
Cited – Governor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
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, Legal Professions

Updated: 23 November 2022; Ref: scu.144851

SRM Global Master Fund Lp and Others, Regina (on the Applications of) v The Commissioners of Her Majesty’s Treasury: Admn 13 Feb 2009

The claimant alleged that the methods chosen for the nationalisation of Northern Rock plc infringed its human rights in providing unfair compensation.
Held: The claim was dismissed. The provision made by the 2008 Act did not infringe the claimants’ human rights to peaceful enjoyment of their possessions. The assumptions underlying the compensation scheme provided in the Act were not unfair. The state having already financially supported the bank in securing its debts to its customers could not have an additional duty to protect the interests of its shareholders.

Judges:

Stanley Burnton LJ, Silber J

Citations:

[2009] EWHC 227 (Admin), [2009] BCC 251, [2009] UKHRR 712, [2009] WLR (D) 55, WLRD 13-Feb-2009

Links:

Bailii

Statutes:

European Convention on Human Rights, Banking (Special Provisions) Act 2008 5(4) 9(2)

Jurisdiction:

England and Wales

Banking, Human Rights

Updated: 22 November 2022; Ref: scu.293921

Sutherland v Royal Bank of Scotland: 1996

Citations:

1996 GWD6-920

Jurisdiction:

Scotland

Cited by:

Cited – Mercedes Benz Finance Ltd v Clydesdale OHCS 16-Sep-1996
The creditor finance company complained that the customer had paid money into its account with the bank, in order to discharge its obligations by direct debit payments, but that the bank had refused to make the payments. The claimant argued that the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 22 November 2022; Ref: scu.246214