Category: Banking

The Governor and Co of The Royal Bank of Scotland, and Andrew Cochrane, Merchant In Glasgow v The Governor and Co of The Bank of Scotland: HL 9 Feb 1729

Bank – legal diligence – In a case betwixt the two banks, it was found by the Court of Session that neither horning, inhibition, nor arrestment, were competent against the bank of Scotland, upon their notes or tickets, the diligence being done in emulationem.

[1729] UKHL 1 – Paton – 14, (1729) 1 Paton 14
Bailii
Scotland

Banking

Updated: 05 January 2022; Ref: scu.554256

Thomas Brand, of London, Goldsmith(A), Ex Parte v Sir Alexander Cumming, of Coulter, Bart: HL 27 Jan 1725

Promissory Note – It is objected to a promissory note, that it was not holograph, nor signed before witnesses, and that therefore the signing and payment of the money ought to be proved: but it having been granted in London, the objections are repelled.
A partial payment was to be deducted, first out of the interest, and afterwards out of the capital. (These before the appeal.)
Usury – Process – A defender having alleged usury against a promissory note granted to the pursuer, the pursuer a goldsmith or banker in London, is ordered to confess or deny the facts, and a commission is granted to Lord Chief Justice King, to take extracts from his books he residing in London.
Foreign – A person residing in London, brings action on a promissory note in Scotland, against which usury is pleaded; the clerk is ordered to retain the note in Court, till the pursuer should transfer to his agent in Scotland, a collateral security in stock which had been granted by the defender.

[1725] UKHL Robertson – 511, (1725) Robertson 511
Bailii
Scotland

Banking

Updated: 05 January 2022; Ref: scu.554114

Murray and Others v Tod and Others: SJC 13 Mar 1817

This was a multiplepoinding brought by the treasurer of the Royal Bank of Scotland, for the purpose of ascertaining who had right to two promissory notes, the one for L. 800, the other for L. 200.
The claimants on the one side were the nearest of kin of the late Mr Tod, and on the other certain parties who claimed those notes as having been delivered to a third party to be held for their behoof.

[1817] ScotJCR 1 – Murray – 222, (1817) 1 Murray 222
Bailii

Scotland, Banking

Updated: 05 January 2022; Ref: scu.554097

Greenwood v Martins Bank Limited: CA 1932

A husband who failed to disclose that his signature had been forged by his wife was estopped for asserting the forgery against his bank.
The relationship between a bank and its customer is a continuing one and therefore involves a continuing duty on either side to act with reasonable care to ensure the proper operation of the account.
A claimant who, as a result of being able to rely on estoppel, succeeds on a cause of action on which, without being able to rely on it, he would necessarily have failed, may be able to recover more than the actual damage suffered by him as a result of the representation which gave rise to it.

Scrutton LJ
[1932] 1 KB 371
England and Wales
Cited by:
Affirmed – Greenwood v Martins Bank Ltd HL 1932
The plaintiff had an account with the defendant bank. His wife forged his signature on four cheques, drew out all the money in the account, and lent it to her sister. The plaintiff on discovering the facts did not at once inform the bank, but about . .

Lists of cited by and citing cases may be incomplete.

Banking, Estoppel

Updated: 05 January 2022; Ref: scu.356586

Accorinti And Others v ECB: ECFI 7 Oct 2015

(Judgment) Non-contractual liability – Economic and monetary policy – ECB – National central banks – Restructuring of Greek public debt – Securities purchase program – Securities exchange agreement for the benefit only of Eurosystem central banks – Sector involvement – Collective action clauses – Credit enhancement in the form of a buy-back program to support the quality of the securities as collateral – Private creditors – Sufficiently serious breach of a rule of law conferring rights on individuals – Legitimate expectation – Equal treatment – Liability for lawful conduct – Special and unusual damage

ECLI:EU:T:2015:756, [2015] EUECJ T-79/13
Bailii
European

Banking

Updated: 04 January 2022; Ref: scu.553119

FC Dynamo-Minsk v Council: ECFI 6 Oct 2015

Judgment Common foreign and security policy – Restrictive measures adopted against Belarus – Freezing of funds – Action for annulment – Period allowed for modifying the form of order sought – Partial inadmissibility – Entity owned or controlled by a person or entity subject to the restrictive measures – Obligation to state reasons – Error of assessment

ECLI:EU:T:2015:747, [2015] EUECJ T-275/12
Bailii
England and Wales

Banking, International

Updated: 04 January 2022; Ref: scu.553096

Cheyne Capital (Management) UK (Llp) v Deutsche Trustee Company Ltd: CA 17 May 2016

This appeal concerns the meaning of clause 26.4(b) of the Issuer Servicing Agreement dated 28 July 2007 which is part of the documentation relating to the commercial mortgage-backed securitisation transaction out of which this dispute arises.

Sir Terence Etherton CH
[2016] EWCA Civ 743
Bailii
England and Wales

Banking

Updated: 04 January 2022; Ref: scu.654581

Alcimos Consulting v ECB (Order): ECFI 1 Sep 2015

ECJ Application for interim measures – Economic and monetary policy – Decisions adopted by the Governing Council of the ECB – Provision of emergency liquidity assistance to Greek banks – Application for suspension of operation of a measure – Breach of procedural requirements – Inadmissibility

T-368/15, [2015] EUECJ T-368/15 – CO
Bailii

European, Banking

Updated: 03 January 2022; Ref: scu.552068

Surmacs v Finansu un kapitala tirgus komisija: ECJ 2 Sep 2015

ECJ Judgment – Reference for a preliminary ruling – Directive 94/19/EC – Point 7 of Annex I – Deposit-guarantee scheme – Exclusion of certain depositors from the deposit-guarantee scheme – Exclusion of a ‘manager’

R. Silva de Lapuerta, P
[2015] EUECJ C-127/14, C-127/14, ECLI:EU:C:2015:522
Bailii
Citing:
Opinion – Surmacs v Finansu un kapitala tirgus komisija ECJ 17-Mar-2015
Advocate Generals Opinion – Directive 94/19/EC – Deposit-guarantee scheme – Exclusion of certain depositors from deposit-guarantee schemes – Point 7 of Annex I to Directive 94/19/EC – Terms ‘director’ and ‘manager’ – Significant influence . .

Lists of cited by and citing cases may be incomplete.

European, Banking

Updated: 03 January 2022; Ref: scu.552023

The Federal Republic of Brazil and Another v Durant International Corporation and Another: PC 3 Aug 2015

Jersey – In a case of alleged money laundering, the court should be ready to consider whether it is satisfied that a series of transactions were part of a co-ordinated scheme, and the appearance of balances in accounts should not be ignored where these were mere incidents of banking.

Lord Neuberger, Lord Mance, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKPC 35, [2015] WLR(D) 358
Bailii, WLRD
England and Wales

Banking, Crime

Updated: 03 January 2022; Ref: scu.551030

McMullon v Secure The Bridge Ltd: CA 5 Aug 2015

Appeal from the decision of Bradford and Leeds County Courts concerning the application of the Consumer Credit Act 1974 (‘the Act’, as amended by the Consumer Credit Act 2006) to an agreement dated 8th July 2010 (‘the Credit Agreement’), under which the Respondent to this appeal, being the Claimant below, provided bridging finance to the Appellant

Sir James Munby P FD, Underhill LJ, Hildyard J
[2015] EWCA Civ 884
Bailii
Consumer Credit Act 1974
England and Wales

Consumer, Banking

Updated: 03 January 2022; Ref: scu.551009

Smith and Another v Royal Bank of Scotland Plc: CA 3 Dec 2021

Claims for compensation under the Consumer Credit Act 1974 arising from payment protection insurance (‘PPI’) policies taken out at the same time as agreements for credit cards from the Royal Bank of Scotland (‘RBS’). The issues in this appeal are about how the Act in its form as amended on 6 April 2007 applies to cases in which the PPI policy was terminated before the amendments to the Act came into force.

Lady Justice Macur,
Lord Justice Coulson,
And,
Lord Justice Birss
[2021] EWCA Civ 1832
Bailii
England and Wales

Consumer, Banking

Updated: 02 January 2022; Ref: scu.670344

Hmicho v Barclays Bank Plc: QBD 19 Jun 2015

Application by the claimant for interim injunctive relief to allow her access to her bank accounts. Her husband, a Syrian, had been identified as a person who has been benefitting from, or supporting, the regime in Syria, and had had his bank accounts frozen accordingly. Barclays replied that the funds in Mrs Hmicho’s three personal accounts with Barclays belonged to, or were owned or held or controlled by, Mr Hmicho, a designated person, and as such Barclays was prohibited from dealing with the funds in Mrs Hmicho’s personal accounts.
Held: The application failed. Picken J said: ‘I cannot have the necessary ‘high degree of assurance’ that Barclays is not entitled to hold the reasonable suspicion that the funds in the accounts which are the subject of Mrs Hmicho’s application belong to, or are owned or controlled by, Mr Hmicho.’

Picken J
[2015] EWHC 1757 (QB)
Bailii
Council Regulation (EU) No. 36/2012, Council Implementing Regulation 2015/780, Syria (European Union Financial Sanctions) Regulations 2012
England and Wales

Banking

Updated: 01 January 2022; Ref: scu.549247

Credit Suisse v Allerdale Borough Council: QBD 17 Jun 1994

A Local Authority’s guarantee for its own company was void, having been given for impermissible reasons.

Independent 17-Jun-1994
England and Wales
Cited by:
Appeal from – Credit Suisse v Allerdale Borough Council CA 20-May-1996
Builder’s Guarantee Ultra Vires LA
The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to . .

Lists of cited by and citing cases may be incomplete.

Local Government, Banking

Updated: 31 December 2021; Ref: scu.79618

HM Treasury v Ahmed and Others: SC 27 Jan 2010

The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the executive without parliamentary scrutiny by the use of Orders in Council. Statutory provision for counter-terrorism was in place, but the choice of this procedure sidestepped its protections. The effect was to create a virtual prison for those affected. There was no right to challenge the listing in a court, and, without such a right, the order was excessive. A party could be listed solely on suspicion of involvement, and there is nothing in the listing or de-listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness, but the effect was catastrophic. The UN order did not require acts to be taken against those suspect to reasonable suspicion, and the Order in Council went beyond compliance with the UN Order.
Orders in Council made under section 1 of the 1946 Act are not instruments upon which proceedings may be taken in either House. They are laid before Parliament for its information only, not for scrutiny of their merits or for debate. The effect of section 1 of the 1946 Act is that decisions as to the provisions that Orders made under it may or should contain lie entirely with the executive.

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance
[2010] UKSC 2, UKSC 2009/0016, [2010] UKHRR 204, [2010] 2 WLR 378, [2010] WLR (D) 12, [2010] 2 AC 534, [2010] 4 All ER 829, [2010] Lloyd’s Rep FC 217
Bailii, Times, SC, SC Summ, WLRD, Bailii Summary
Terrorism (United Nations Measures) Order 2006 (SI 2006/2657), Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952), United Nations Act 1946
England and Wales
Citing:
Cited – M, Regina (on the Application of) v Her Majestys Treasury HL 30-Apr-2008
The House referred to the ECJ a question about the implementation of UN resolutions imposing sanctions on Al-Qa’ida. . .
Appeal from – A and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited – Chester v Bateson 1920
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the . .
Cited – Rex (at the prosecution of Arthur Zadig) v Halliday HL 1-May-1917
The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Behrami and Behrami v France; Saramati v France Germany and Norway ECHR 2-May-2007
The applicants complained of the action and inaction of members of an international security force (‘KFOR’) that had been deployed in Kosovo pursuant to Security Council Resolution 1244 (1999).
Held: The applications were inadmissible. The . .
Cited – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Saik, Regina v HL 3-May-2006
The defendant appealed aganst his conviction for conspiracy to engage in moneylaundering. At trial he pleaded guilty subject to a qualification that he had not known that the money was the proceeds of crime, though he may have suspected that it . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:
Cited – Forsyth, Regina v, Regina v Mabey SC 23-Feb-2011
The defendants were to face trial on charges of making funds available to Iraq in breach of the 2000 Order. They said that the 2000 Order was ultra vires and ineffective, not having been made ‘forthwith’ after the UN resolution it was based upon, . .
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 – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
See Also – 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 . .
See Also – Youssef and Others v The Secretary of State for Foreign and Commonwealth Affairs Admn 14-Nov-2011
The claimant sought to challenge the continued inclusion of his name on a list of persons subject to restrictions for showing sympathy to al Qaida, asking at this hearing: ‘Whether the Secretary of State’s decision to propose the relevant Claimant . .
See Also – Youssef, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 23-Jul-2012
The claimant challenged having been listed as an associate of Al-Qaida, with the resulting freezing of assets and a travel ban.
Held: His request for judicial review failed.
Toulson LJ deprecated the ‘tendency on the part of lawyers . . . .
See Also – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
See Also – HM Treasury v Ahmed and Others SC 4-Feb-2010
The Court had declared unlawful as ultra vires terrorism related orders made against the several claimants. The court now considered how restrictions imposed by banks should be dealt with.
Held: (Lord Hope dissenting as to the order required) . .

Lists of cited by and citing cases may be incomplete.

Banking, Crime, Constitutional

Leading Case

Updated: 31 December 2021; Ref: scu.395046

HM Treasury v Ahmed and Others: SC 4 Feb 2010

The Court had declared unlawful as ultra vires terrorism related orders made against the several claimants. The court now considered how restrictions imposed by banks should be dealt with.
Held: (Lord Hope dissenting as to the order required) The Court could not lend itself to a procedure that is designed to obfuscate the effect of its judgment. Accordingly, I would not suspend the operation of any part of the court’s order.

Lord Phillips, President , Lord Hope, Deputy President , Lord Rodger , Lord Walker , Lady Hale , Lord Brown , Lord Mance
[2010] UKSC 5, [2010] 2 AC 534, [2010] Lloyds Rep FC 217, UKSC 2009/0016, [2010] 2 AC 534
Bailii, Bailii Summary, SC, SC Summary
errorism (United Nations Measures) Order 2006
England and Wales
Citing:
See Also – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
See Also – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .

Cited by:
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 – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 December 2021; Ref: scu.605195

Credit Suisse v Allerdale Borough Council: CA 20 May 1996

Builder’s Guarantee Ultra Vires LA

The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to selling the time-share units to pay for the cost of building the pool. The council gave a guarantee to help the company to finance the project, and on the strength of this the company obtained a facility from the bank. The sale of the time-share units proved unsatisfactory and the company went into liquidation. The bank sued the council under the guarantee to recover the sums owed to it by the company.
Held: The guarantee was ultra vires where it had been given to a company when the authority was acting outside it’s proper powers. Where a statutory corporation purports to enter into a contract which it is not empowered by the relevant statute to enter into, the corporation lacks the capacity to make the supposed contract. This lack of capacity means that the document and the agreement it contains do not have effect as a legal contract. It exists in fact but not in law. It is a legal nullity. The purported contract which is in truth not a contract does not confer any legal rights on either party. Neither party can sue on it. Any third party dealing with a local authority should be aware of that fact [of limited capacity and competence] and of the potential legal risk.
Hobhouse LJ said: ‘The discretion of the court in deciding whether to grant any remedy is wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, and the utility of granting the relevant remedy.’

Hobhouse LJ
Times 20-May-1996, [1997] QB 306
Local Government Act 1972 111, Local Government (Miscellaneous Provisions) Act 1976 819
England and Wales
Citing:
Appeal from – Credit Suisse v Allerdale Borough Council QBD 17-Jun-1994
A Local Authority’s guarantee for its own company was void, having been given for impermissible reasons. . .
Applied – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .

Cited by:
Cited – Stretch v The United Kingdom ECHR 24-Jun-2003
The claimant had taken a lease of property from a local authority. Relying upon an option for renewal, he invested substantially in the property, but it was then decided that the option was ultra vires.
Held: Property rights protected under . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Kilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
Cited – Birmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
Cited – UKI (Kingsway) Ltd v Westminster City Council SC 17-Dec-2018
Short issue as to the requirements for valid ‘service’ of a completion notice so as to bring a newly completed building within liability for non-domestic rates. The notice had been served by email where no statutory authority existed for this.
Local Government, Contract, Company, Banking

Updated: 31 December 2021; Ref: scu.79620

BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another: ChD 3 Jun 2015

The court was asked whether the defendants, wholly-owned subsidiaries of Lloyds Banking Group plc, are now entitled to redeem certain enhanced capital notes in advance of their respective maturity dates. That turns on whether or not a Capital Disqualification Event (a ‘CDE’) has occurred.

Sir Terence Etherton C
[2015] EWHC 1560 (Ch)
Bailii
England and Wales
Cited by:
At ChD – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
At ChD – LBG Capital No 1 Plc and Another v BNY Mellon Corporate Trustee Services Ltd CA 10-Dec-2015
The court was asked whether Issuers were entitled to redeem, pursuant to their terms, certain contingent convertible securities.
Held:
The reference to ‘the Consolidated Core Tier 1’ in para (2) of the Definition should, in the events . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 30 December 2021; Ref: scu.547546

Bank Mellat v HM Treasury: ComC 6 May 2015

Judgment following the trial of three preliminary issues in the claim by Bank Mellat for damages under section 8 of the 1998 Act 1998 for loss and damage caused by the 2009 Order made under section 62 and Schedule 7 of the Counter-Terrorism Act 2008.

Flaux J
[2015] EWHC 1258 (Comm)
Bailii
Human Rights Act 1998 8, Financial Restrictions (Iran) Order 2009, Counter-Terrorism Act 2008 62
England and Wales

Banking, Human Rights

Updated: 30 December 2021; Ref: scu.546416

Surmacs v Finansu un kapitala tirgus komisija: ECJ 17 Mar 2015

Advocate Generals Opinion – Directive 94/19/EC – Deposit-guarantee scheme – Exclusion of certain depositors from deposit-guarantee schemes – Point 7 of Annex I to Directive 94/19/EC – Terms ‘director’ and ‘manager’ – Significant influence

Mengozzi AG
C-127/14, [2015] EUECJ C-127/14 – O, ECLI:EU:C:2015:176
Bailii
European
Cited by:
Opinion – Surmacs v Finansu un kapitala tirgus komisija ECJ 2-Sep-2015
ECJ Judgment – Reference for a preliminary ruling – Directive 94/19/EC – Point 7 of Annex I – Deposit-guarantee scheme – Exclusion of certain depositors from the deposit-guarantee scheme – Exclusion of a . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 30 December 2021; Ref: scu.551983

Bank Mellat v Her Majesty’s Treasury (No 2): SC 19 Jun 2013

The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic missile programmes. The bank sought to have the direction given under section 7 of the 2008 Act.
Held: (Reid, Hope LL dissenting, Dyson, Carnwath, Neuberger LL dissenting in part) The direction was set aside. The interruption of the Bank’s commercial dealings was not a proportionate means of interrupting the pursuit by Iran of a nuclear weapons programme. The justification for singling out the appellant bank was inadequate. Additionally it had not been given the required notice of the proposal to make the direction, and therefore had not been able to make representations. The duty of fairness was not excluded by the possibility of recourse to the courts.
Lord Sumption considered the development of the test of proportionality, with a four stage test, saying that: ‘the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.’
Lord Reed observed that: ‘the intensity [of review] – that is to say, the degree of weight or respect given to the assessment of the primary decision-maker – depends on the context.’
The concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them.
He set out four principles: ‘(1) whether the objective of the relevant measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.’

Lord Neuberger, President, Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, UKSC 2011/0040, [2014] 1 AC 700
Bailii Summary, Bailii, SC Sumary, SC, WLRD
Counter-Terrorism Act 2008 7, Human Rights Act 1998
England and Wales
Citing:
At first instance – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Appeal from – Bank Mellat v HM Treasury CA 13-Jan-2011
Under the 2009 Order, the appellant Bank’s UK operations had been shut down. It appealed against the Order, but the respondent had brought evidence, closed save to the respondent, and the order had been confirmed.
Held: The bank’s appeal . .
See Also – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Cooper v The Board of Works For The Wandsworth Destrict 21-Apr-1863
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without . .
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Wiseman v Borneman HL 1971
The House was asked whether natural justice required that there be an oral hearing of a determination by a tax tribunal of whether there was a prima facie case.
Held: A refusal to examine evidence submitted to a tribunal initially when there . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Edinburgh District Council v Secretary of State for Scotland SCS 1985
Inner House . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Cited – UNISON, Regina (on The Application of) v Secretary of State for Health Admn 14-Oct-2010
The union challenged proposals to enter into a new round of reform of the National Health Service.
Held: Even if a legitimate expectation has been created, the courts cannot, consistently with the constitutional function of Parliament, control . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Regina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
Cited – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
Cited – Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
Cited – Bates v Lord Hailsham of St Marylebone ChD 1972
A solicitor applied to the court ex parte to restrain a committee acting under delegated powers from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and . .
Cited – Regina v Barnsley Metropolitan Borough Council, ex parte Hook CA 1976
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the . .
Cited – Illinois State Board Of Elections v Socialist Workers Party Et Al 22-Feb-1979
United States Supreme Court – Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. However, the minimum . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – Regina v Edwards Books and Art Ltd 18-Dec-1986
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at . .
Cited – Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others ECJ 13-Nov-1990
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity . .
Cited – Regina v Secretary of State for Health, ex parte United States Tobacco International Inc CA 1991
The applicant company produced oral snuff. It had opened a factory in the United Kingdom after the Government, on advice, had negotiated an agreement with it to restrict the marketing of the product. The committee, basing itself not on new evidence . .
Cited – Lavigne v Ontario Public Service Employees Union 27-Jun-1991
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee . .
Cited – Regina v Birmingham City Council ex parte Ferrero Ltd CA 1993
The case concerned the prohibition in respect of chocolate eggs containing plastic toys one of which had been swallowed by and choked to death a small boy, and a power in the interests of public safety to prohibit the sale of particular goods, which . .
Cited – RJR-MacDonald Inc v Canada (Attorney General) 21-Sep-1995
Supreme Court of Canada – Constitutional law — Division of powers — Charter of Rights — Freedom of expression — Commercial advertising — Cigarette advertising banned — Whether or not legislation validly enacted under criminal law power or . .
Cited – Jokela v Finland ECHR 21-May-2002
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1; No violation of Art. 6-1 with regard to witnesses; No violation of Art. 6-1 with regard to reasons for decision; Pecuniary damage – financial . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Micallef v Malta ECHR 15-Oct-2009
‘The Court reiterates that for Article 6(1) in its ‘civil’ limb to be applicable, there must be a dispute over a ‘civil right’ which can be said, at least on arguable grounds, to be recognised under domestic law’
Preliminary proceedings or . .
Cited – Alberta v Hutterian Brethren of Wilson Colony 24-Jul-2009
Canlii Constitutional law – Charter of Rights – Freedom of religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

Cited by:
Applied – Mosekari v The London Borough of Lewisham Admn 5-Nov-2014
The claimant recently qualified teacher alleged that the school at which he had competed his statutoryinduction period had, by failing to record it properly denied him the status of qualified teacher. The defendant replied that there was no . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Wang Yam, Regina (on The Application of) v Central Criminal Court and Another SC 16-Dec-2015
The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the . .
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 – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .
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 . .
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

International, Banking, Human Rights

Updated: 30 December 2021; Ref: scu.510915

Credit Agricole Corporation and Investment Bank v Papadimitriou: PC 24 Mar 2015

Gibraltar – duty of bank to respect knowledge that funds held by it were held upon trust for a third party – whether bona fide purchaser for value without notice

Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Clarke of Stone-cum-Ebony, Lord Sumption, Lord Toulson JJSC
[2015] UKPC 13, [2015] WLR(D) 161, [2015] 1 WLR 4265, [2015] Lloyd’s Rep FC 301, [2015] 2 All ER 974, [2015] 2 All ER (Comm) 646
Bailii, WLRD
England and Wales

Banking

Updated: 29 December 2021; Ref: scu.545678

National Westminster Bank Plc v Rabobank Nederland: ComC 11 May 2007

Colman J
[2007] EWHC 1056 (Comm)
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .
See Also – National Westminster Bank Plc v Rabobank Nederland CA 24-Oct-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .

Cited by:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 28 December 2021; Ref: scu.252329

Mahmoudian v Council (Judgment): ECJ 18 Nov 2021

Appeal – Common foreign and security policy (CFSP) – Restrictive measures taken against the Islamic Republic of Iran – Damage allegedly suffered by the applicant as a result of the inclusion and maintenance of his name on the list of the persons and entities to which the freezing of funds and economic resources applies – Action for damages – Jurisdiction of the Court to rule on the claim for compensation for damage allegedly suffered as a result of restrictive measures provided for by decisions falling under the CFSP – Sufficiently serious violation of a rule of law the object of which is to confer rights on individuals

C-681/19, [2021] EUECJ C-681/19P
Bailii
European

Banking

Updated: 25 December 2021; Ref: scu.670030

Banco Privado Portugues And Massa Insolvente Do Banco Privado Portugues v Commission: ECFI 12 Dec 2014

ECJ Judgment – State aid – Financial sector – State Guarantee accompanying a bank loan – Aid to remedy a serious disturbance in the economy of a Member State – Article 107, paragraph 3, sub b) TFEU – Decision declaring the aid incompatible with the common market – Guidelines on State aid for rescuing and restructuring firms in difficulty – Compliance with the Commission communication on aid to the financial sector in the context of the financial crisis – Legitimate expectations – Obligation to state reasons

T-487/11, [2014] EUECJ T-487/11, ECLI:EU T:2014:1077
Bailii

European, Banking

Updated: 24 December 2021; Ref: scu.539887

Royal Bank of Scotland Plc v O’Donnell and Mcdonald: SCS 16 Oct 2014

Extra Division Inner House Court of Session. The reclaimers have brought proceedings against the respondents to enforce a guarantee that the respondents had purportedly granted in support of the borrowings of a company controlled by them. The respondents have counterclaimed for reduction of the guarantee on the ground that it was induced by misrepresentations made by the reclaimers.

Lord Bracadale, Lord Drummond Young, Lord Wheatley
[2014] ScotCS CSIH – 84
Bailii

Scotland, Banking, Torts – Other

Updated: 22 December 2021; Ref: scu.538175

Graves v Capital Home Loans Ltd: CA 9 Oct 2014

The claimant had charged a property to the bank. It was a buy to let. The claimant had succumbed to mental illness and was hospitalised, temporarily lacking capacity to manage his affairs. The bank appointed a receiver, then selling as mortgagee in possession. The claimant now appealed against rejection of his action for trespass againat the bank.

Patten, Underhill, Briggs LJJ
[2014] EWCA Civ 1297
Bailii
England and Wales

Land, Banking

Updated: 22 December 2021; Ref: scu.537465

British Arab Commercial Bank Plc v The National Transitional Council of The State of Libya: ComC 26 Aug 2011

The issue in this case concerns the control of the accounts of the Libyan embassy in London held with the claimant, British Arab Commercial Bank Plc. The defendant is the National Transitional Council of the State of Libya, which on 27 July 2011 was recognised by Her Majesty’s Government as the ‘sole governmental authority in Libya’. The Foreign and Commonwealth Office has been represented at the hearing. The legal representatives of the government which was previously recognised have been given the opportunity to attend, and the hearing was adjourned to enable them to do so. However they have notified the court that they have been unable to obtain instructions, and do not intend to appear. In short, the issue arises because the Bank has received conflicting instructions as to the operation of the accounts. It brings these proceedings for declaratory relief under Part 8 CPR.

Blair J
[2011] EWHC 2274 (Comm)
Bailii
England and Wales

Banking, International

Updated: 22 December 2021; Ref: scu.443318

Three Rivers District Council and Others v Governor and Company of Bank of England: CA 6 Dec 1994

Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name.

Peter Gibson LJ
Times 06-Dec-1994, Independent 13-Dec-1994, [1996] QB 292
England and Wales
Cited by:
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking, Litigation Practice

Updated: 20 December 2021; Ref: scu.89885

Three Rivers District Council and others v Bank of England: CA 2 Oct 1997

Summary of joint judgment.

Hirst and Robert Walker LJJ
[1997] EWCA Civ 2379
England and Wales
Citing:
See also – Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) CA 10-Dec-1998
The tort of misfeasance in public office is not separated into two distinct limbs. In each case the Plaintiff must show a deliberate and dishonest abuse of his position by a public official aware of the loss that will follow or reckless as to such a . .

Cited by:
See also – Three Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
See also – Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) CA 10-Dec-1998
The tort of misfeasance in public office is not separated into two distinct limbs. In each case the Plaintiff must show a deliberate and dishonest abuse of his position by a public official aware of the loss that will follow or reckless as to such a . .

Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 20 December 2021; Ref: scu.142777

Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia: ECHR 16 Jul 2014

Grand Chamber – Article 46
Pilot judgment
General measures
Slovenia and Serbia required to take measures to enable applicants and all others in their position to recover ‘old’ foreign-currency savings
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Inability to recover ‘old’ foreign-currency savings following dissolution of former SFRY violation
Facts – The applicants are citizens of Bosnia and Herzegovina. Until 1989-90, the former Socialist Federal Republic of Yugoslavia (SFRY) made it attractive for its citizens to deposit foreign currency with its banks by high interest rates and a State guarantee in the event of bankruptcy or ‘manifest insolvency’. Depositors were also entitled to withdraw their savings with accrued interest at any time. The first and second applicants deposited foreign currency at what was then the Ljubljanska Banka Sarajevo and the third applicant at the Tuzla branch of Investbanka. Following reforms in 1989-90, Ljubljanska Banka Sarajevo became a branch of Ljubljanska Banka Ljubljana, which took over the former’s rights, assets and liabilities. Investbanka became an independent bank with headquarters in Serbia and branches, including the Tuzla branch, in Bosnia and Herzegovina. During this period, the convertibility of the dinar and very favourable exchange rates led to massive withdrawals of foreign currency from commercial banks which prompted the SFRY to take emergency measures to restrict such withdrawals. After the break-up of the SFRY in 1991-92, the ‘old’ foreign-currency deposits remained frozen in the successor States, who however agreed to repay them to domestic banks. In Bosnia and Herzegovina, the Constitutional Court examined numerous individual complaints concerning failures to repay ‘old’ foreign-currency savings at the domestic branches of Ljubljanska Banka Ljubljana and Investbanka. The Constitutional Court found no liability on the part of Bosnia and Herzegovina or its Entities and instead ordered the State to help the clients of those branches to recover their savings from Slovenia and Serbia respectively. In the framework of the negotiations for the Agreement on Succession Issues, negotiations regarding the distribution of the SFRY’s guarantees of ‘old’ foreign-currency savings were held in 2001 and 2002. As the successor States could not reach an agreement, however, in 2002 the Bank for International Settlements informed them that it would have no further involvement in the matter. The applicants complained that they had been unable to withdraw their foreign-currency savings.
Law – Article 1 of Protocol No. 1: In its admissibility decision the Chamber found that the statutory guarantee of the SRFY in respect of the ‘old’ foreign currency savings in Ljubljanska Banka Ljubljana and Investbanka had not been activated until the dissolution of the SFRY and that the relevant liability had therefore not shifted from those banks to the SFRY before its dissolution. The Grand Chamber endorsed the Chamber’s finding in this respect. Moreover, it stressed that the two banks had remained liable for the ‘old’ foreign currency savings in their Bosnian-Herzegovinian branches since the dissolution of the SFRY. The Court went on to examine whether Slovenia and Serbia were responsible for the failure of those banks to repay their debts to the applicants.
The Slovenian Government had nationalised Ljubljanska Banka Ljubljana and transferred most of its assets to a new bank, while at the same time confirming that the old Ljubljanska Banka remained liable for ‘old’ foreign-currency savings in its branches in the other successor States. Indeed Slovenia had become the sole shareholder of the old Ljubljanska Banka, which was administered by a Government agency. In addition, Slovenia was to a large extent responsible for the bank’s inability to service its debts (as it had transferred most of its assets to another bank) and there was evidence in the case-file that most of the funds of the Sarajevo branch of Ljubljanska Banka Ljubljana had ended up in Slovenia. It was therefore responsible for the debt of the Ljubljanska Banka Ljubljana to the first and second applicants.
As to Investbanka, it was State-owned by Serbia and controlled by a Serbian Government Agency. Moreover, at one point the bank had been required to write off its considerable claims against State-owned and socially-owned companies to its own and its stakeholders’ detriment. Serbia had thus disposed of Investbanka’s assets as it considered fit, which led the Court to conclude that there were sufficient grounds to deem Serbia responsible for Investbanka’s debt to the third applicant.
As to the applicants’ inability to freely dispose of their ‘old’ foreign-currency savings since 1991-92, the explanation of the Serbian and Slovenian Governments for the delay essentially concerned their duty to negotiate that question in good faith with the other successor States, as required by international law. However, the duty to negotiate did not prevent the successor States from adopting measures to protect the savers’ interests. The Croatian Government had repaid a large part of its citizens’ ‘old’ foreign-currency savings in Ljubljanska Banka Ljubljana’s Zagreb branch and the Macedonian Government had repaid the total amount of ‘old’ foreign currency savings in the Skopje branch of that bank. At the same time, those two Governments had never abandoned their position that the Slovenian Government should eventually be held liable, and continued to claim compensation at the inter-State level in the context of the succession negotiations. Furthermore, the Slovenian and Serbian Governments insisted that during State succession negotiations the liability for debts of banks in Bosnia and Herzegovina was to be decided under the territoriality principle. The Court disagreed recalling the ‘equitable proportion’ principle which was to be applied under international law on State succession.
Although certain delays in repayment of the above debts could be justified in exceptional circumstances, and despite a wide margin of appreciation left to the respondent States in this area, the applicants’ continued inability to freely dispose of their savings for over twenty years had been disproportionate and thus in breach of Article 1 of Protocol No. 1.
The Court emphasized that the above conclusions did not imply that no State would ever be able to rehabilitate a failed bank without incurring direct responsibility for that bank’s debt under Article 1 of Protocol No. 1. Given its context, the situation in the present case was unique and different from other cases concerning rehabilitation of an insolvent privately-owned bank.
Conclusions: violation by Slovenia with regard to the first and second applicants (unanimously); violation by Serbia with regard to the third applicant (unanimously); no violation as regards the other respondent States (fifteen votes to two).
The Court also found, unanimously, a violation of Article 13 of the Convention by Slovenia in respect of the first two applicants and by Serbia in respect of the third applicant.
Article 46: There were more than 1,850 similar applications, introduced on behalf of more than 8,000 applicants, already pending before the Court, and thousands of potential applicants. For that reason, it was appropriate to apply the pilot-judgment procedure to the applicants’ case. In view of the systemic problem identified, the Court considered that general measures at national level were undoubtedly called for in the execution of the present judgment. Notably, within one year and under the supervision of the Committee of Ministers, Slovenia and Serbia must make necessary arrangements, including legislative amendments, in order to allow the applicants and all other persons in their position to recover their ‘old’ foreign-currency savings under the same conditions as their nationals who held such savings in the domestic branches of Slovenian and Serbian banks. While there was no need to indicate that all affected persons should be afforded redress for the damage incurred as a result of their inability to freely dispose of their savings for more than twenty years, the Court pointed out that it may reconsider this issue should either of the respondent States fail to apply the general measure indicated above. Finally, the Court decided to adjourn the examination of similar cases against Serbia and Slovenia for one year.
Article 41: EUR 4,000 each to the first, second and third applicants in respect of non-pecuniary damage.

60642/08 – Grand Chamber Judgment, [2014] ECHR 786, 60642/08 – Legal Summary, [2014] ECHR 867, [2014] ECHR 975
Bailii, Bailii, Bailii
European Convention on Human Rights
Citing:
See Also – Emina Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia ECHR 17-Oct-2011
. .
See Also – Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia ECHR 6-Nov-2012
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Banking

Updated: 20 December 2021; Ref: scu.535689

Three Rivers District Council and others v The Governor and Company of the Bank of England: ComC 12 Apr 2006

The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit long overdue conclusion’ when the creditors called on the liquidators to abandon the action. The parties now disputed the basis for the costs order. ‘The pursuit of such hopeless but widely publicised allegations of dishonesty against so many officers of this country’s central bank of itself takes the case out of the norm. ‘ Costs were awarded on an indemnity basis.

Tomlinson J
[2006] EWHC 816 (Comm), [2006] 5 Costs LR 714
Bailii
England and Wales
Citing:
Cited – Petrotrade Inc v Texaco Ltd CA 23-May-2000
Where a defendant failed to beat a claimant’s part 36 offer to settle, but judgment was given summarily the rule did not mean that the defendant was necessarily to be ordered to pay costs on an indemnity basis, and to pay interest. Summary judgment . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – National Coal Board v Ridgeway CA 1987
‘action’ in section 23(1) of the 1978 Act included an omission. . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
Cited – Jordan Grand Prix Limited v Vodafone Group Plc ComC 4-Aug-2003
The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the . .
Cited – Cepheus Shipping Corporation v Guardian Royal Exchange Plc 1995
. .
Cited – IPC Media Ltd v Highbury Leisure Publishing Ltd ChD 2005
. .
Cited – Cambridge Antibody Technology v Abbott Biotechnology Ltd and Another 2005
. .
Cited – Amoco (UK) Exploration Company and others v British American Offshore Ltd ComC 12-Dec-2000
. .

Cited by:
Cited – Chantrey Vellacott v The Convergence Group Plc and others ChD 31-Jul-2007
The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order . .

Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other, Costs

Updated: 16 December 2021; Ref: scu.240372

Council v Hamas (Judgment): ECJ 23 Nov 2021

Appeal – Common foreign and security policy – Fight against terrorism – Restrictive measures against certain persons and entities – Freezing of funds – Common Position 2001/931/CFSP – Regulation (EC) No 2580/2001 – Continued inclusion of an organisation on the list of persons, groups and entities involved in terrorist acts – Statement of individual reasons notified to the organisation set out in a separate document from that containing a general statement of reasons – Authentication of the statement of individual reasons – Article 297(2) TFEU

C-833/19, [2021] EUECJ C-833/19P
Bailii
European

Criminal Practice, Banking

Updated: 16 December 2021; Ref: scu.670011

Joachimson v Swiss Bank Corporation: CA 1921

The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the customer demands payment by the bank. The court set out the legal characteristics of a current bank account. For a bank account in credit, a demand is a necessary precondition to the customer having a cause of action to recover all or part of the balance of the account.
Atkin LJ rejected the proposition that a current account can be analysed as a simple contract of loan, with a superadded obligation of the bank to honour the customer’s drafts to any amount not exceeding the credit balance at any time. He said ‘I think there is only one contract made between the banker and its customer. ‘- ie, when a customer sues the bank to recover money in its current account, the customer is suing on the banker-customer contract, not suing for repayment of a loan or set of loans constituted by deposits.

Atkin LJ
[1921] 3 KB 110, [1921] 37 TLR 534, [1921] All ER 92, 125 LT 338
England and Wales
Cited by:
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – Thomas Cook (New Zealand) Limited v Inland Revenue PC 10-Nov-2004
(New Zealand) Under the Act, certain companies had a duty to pay over to the Inland Revenue balance held on old and dormant accounts. They had issued travellers cheques which had never been presented. The revenue argued that the claim arose six . .
Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
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.

Litigation Practice, Banking

Updated: 15 December 2021; Ref: scu.183522

Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd: 1994

(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts into the company’s account without any restriction on how the company may use those proceeds does not give effective possession of those proceeds to the Bank. It does not, without more, fasten the charge onto those proceeds. Supercool was free to deal with those proceeds except in the two respects stated, unless and until the BNZ intervened in a manner that would effectively inhibit that freedom. This conclusion is entirely consistent with the circumstances as they existed at the time the debenture was entered into. Supercool was about to take over part of the business of the old Supercool company. It was the clear intention of Supercool and the BNZ that Supercool was then going to trade in the normal way in the course of which it would acquire book and other debts and would be using the proceeds of those debts in the normal course of its business. If it were not able to do so freely, it would not be able to trade. And the BNZ was well aware that that was what Supercool was about to do – the whole object of the finance facility was to enable Supercool to commence business. There was no intervention by the Bank that in any way restricted this freedom to carry on its business until the Bank appointed the receiver on 10 March 1992. It follows that the charge over the book and other debts was a floating charge until it crystallised on that date. It also follows that, for the reasons I have expressed, I do not follow the decision of Slade J in Siebe Gorman.’

Tompkins J
[1994] 3 NZLR 300
England and Wales
Citing:
Not Followed – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
Cited – In re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
Cited – Illingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
Cited – In Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .

Cited by:
Approved – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Approved – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Banking

Updated: 15 December 2021; Ref: scu.191966

In Re Keenan Bros Ltd: 1986

(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior consent in writing of the Bank. This additional restriction on the ordinary operation of a current account made it certain that the charge was fixed or specific and not floating. One must look, not at the declared intention of the parties alone, but to the effect of the instruments whereby they purported to carry out that intention. Was the account one which allowed the company to continue to use the proceeds of the book debts as a source of its cash flow or was it one which, on the contrary, preserved the proceeds intact for the benefit of the bank’s security? Was it, putting the point shortly, a blocked account?

McCarthy J
[1986] BCLC 242
Citing:
Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:
Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Distinguished – In re Brightlife Ltd ChD 1987
Parties contractual freedom to be respected
A clause in a debenture gave a charge which provided that the chargor should not: ‘deal with its book or other debts or securities for money otherwise than in the ordinary course of getting in and realising the same which expression shall not . .
Cited – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Followed – William Gaskell Ltd v Highley 1994
. .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.191958

National Westminster Bank plc v Spectrum Plus Limited and others: HL 30 Jun 2005

Former HL decision in Siebe Gorman overruled

The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The appeal was allowed. The debenture, although expressed to grant the bank a fixed charge over Spectrum’s book debts, in law granted only a floating charge. The Siebe Gorman case was incorrect and could not stand. A seven man House considered whether it was appropriate to overrule an established case, upon which so many commercial decisions and arrangements were founded. It was, but it was not proper to overrule the case only prospectively.
Lord Nicholls of Birkenhead said: ‘The essence of the principled argument against prospective overruling is that in this country prospective overruling is outside the constitutional limits of the judicial function. It would amount to the judicial usurpation of the legislative function. Power to make rulings having only prospective effect, it is said, is not inherent in the judicial role. A ruling having only prospective effect cannot be characterised as merely a less extensive form of overruling than overruling with both retrospective and prospective effect. Prospective overruling robs a ruling of its essential authenticity as a judicial act. Courts exist to decide the legal consequences of past events. A court decision which takes the form of a ‘pure’ prospective overruling does not decide the dispute between the parties according to what the court declares is the present state of the law. ‘ However ‘If, altogether exceptionally, the House as the country’s supreme court were to follow this course I would not regard it as trespassing outside the functions properly to be discharged by the judiciary under this country’s constitution. Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. ‘Never say never’ is a wise judicial precept, in the interest of all citizens of the country.’
He discussed the possibility of judge made law: ‘Judges have a legitimate law-making function. It is a function they have long exercised. In common law countries much of the basic law is still the common law. The common law is judge-made law. For centuries, judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations.’

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] 3 WLR 58, [2005] 2 AC 680, [2005] 4 All ER 209, [2005] All ER (D) 368, [2005] 2 Lloyds Rep 275, [2005] 2 BCLC 269, [2005] BCC 694, [2005] UKHL 41, Times 31-Jul-2005
Bailii, House of Lords
England and Wales
Citing:
Cited – Great Northern Railway Co v Sunburst Oil and Refining Co 1932
(US Supreme Court) The Constitution neither prohibits nor requires prospective overruling. The Federal Court, Cardoza J said, ‘has no voice upon the subject.’ . .
Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Banco Popolare di Cremona v Agenzia Entrate Uffficio Cremona ECJ 17-Mar-2005
A ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should not take effect until a future date, namely, when the State had had a reasonable opportunity to introduce new legislation. . .
Appeal from – 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 . .
Cited – Launchbury v Morgans HL 9-May-1972
The owner of a car appealed against a ruling that she was responsible for injury suffered by the three respondents who had been passengers in the car when it crashed. The owner had not been with them. The care was driven by her husband with her . .
Overruled – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Linkletter v Walker 1965
(US Supreme Court) In both criminal and civil cases ‘the accepted rule today is that in appropriate cases the Court may in the interests of justice make the rule prospective.’ . .
Cited – Golak Nath v State of Punjab 1967
(Supreme Court of India) The court considered whether it had jurisdiction to make a rulinging which was prospective only.
Held: The court reversed two earlier decisions of its own in circumstances where meanwhile constitutional amendments had . .
Cited – Chevron Oil Co v Huson 1971
(US Supreme Court) The Supreme Court summarised three factors to be taken into account when considering whether a ruling should be applied non-retroactively: whether the decision established a new principle of law, whether retrospective operation . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – India Cement Ltd v State of Tamil Nadu 1990
(Supreme Court of India) The court found that it had jurisdiction to make rulings of retrospective effect only. Non-retroactive effect may be given to a ruling which decides an issue for the first time. . .
Cited – Re Edward and Edward 1987
(Saskatchewan Court of Appeal) The court rejected the idea of making rulings of prospective effect only. Prospective overruling would be a ‘dramatic deviation from the norm in both Canada and England’. Bayda CJS said ‘the most cogent reason for . .
Cited – Murphy v Attorney General 1982
(Supreme Court of Ireland) The Supreme Court held that certain taxation provisions were unconstitutional and void. The court rejected an argument that it was for the courts to say whether these statutory provisions should be held to be invalid . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Reference re Language Rights under the Manitoba Act 1870 1985
(Supreme Court of Canada) The court declined to give retroactive effect to its decision on the constitutional invalidity of all statutes and regulations of the Province of Manitoba not printed and published in both English and French. A declaration . .
Cited – Regina v Governor HM Prison Brockhill, ex parte Michelle Carol Evans (No 2) CA 19-Jun-1998
The plaintiff was serving a sentence of imprisonment. Her detention was correctly calculated in accordance with the law as understood. That method was later disapproved when the Divisional Court laid down (everyone has assumed correctly) a different . .
Cited – Regina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .
Cited – Regina (Bidar) v Ealing London Borough Council and Another ECJ 15-Mar-2005
Europa (Grand Chamber of the Court of Justice of the European Union) Citizenship of the Union – Articles 12 EC and 18 EC – Assistance for students in the form of subsidised loans – Provision limiting the grant of . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
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 – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Ha and Another v State of New South Wales and Others 17-Feb-1997
(High Court of Australia) The court unanimously considered that ‘it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law’. This would especially be so where ‘non-compliance with a properly . .
Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
Cited – Carse v Coppen IHCS 8-Dec-1950
The court considered the inability to create a floating charge over a company’s assets in Scots law. It was conceded that a company registered in Scotland could not create a valid and effectual floating charge over its assets in Scotland, but it was . .
Cited – In Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .
Cited – Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
Cited – Westminster Bank Ltd v Hilton HL 1926
As against the money of the customer’s in the banker’s hands the relationship between banker and customer is that of principal and agent.
Lord Atkinson said: ‘It is well established that the normal relation between a banker and his customer . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Sharp v Thomson HL 1997
A floating charge was given over the whole of a company’s property which might from time to time be ‘comprised in our property and undertaking’. The charge terms echoed the section which allows a company to create a charge ‘over all or any part of . .
Cited – Halesowen Presswork and Assemblies Ltd v Westminster Bank Ltd CA 1971
The relationship of banker and customer was a single relationship the situation was not one of lien. Buckley LJ said: ‘Nor is it a set-off situation, which postulates mutual but independent obligations between the two parties. It is an accounting . .
Cited – Hindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
Cited – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Cited – In Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .
Cited – In re A Company (No 005009 of 1987); Ex parte Copp 1989
Knox J declined to look at evidence about an agreed overdraft limit, regarding it as a ‘collateral arrangement’. He said: ‘this is a type of transaction in respect of which judicial precedent is a particularly valuable guide to the commercial . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – In re Panama New Zealand and Australian Royal Mail Co 1870
The company had charged its ‘undertaking and all sums of money arising therefrom’.
Held: ‘undertaking’ meant ‘all the property of the company, not only which existed at the date of the debenture, but which might afterwards become the property . .
Cited – In re Colonial Trusts Corporation CA 13-Dec-1880
A company formed for the purchase and management of land, and which was empowered by articles to borrow money for the purposes of the company provided that the amount borrowed should not at any time exceed the amount of the unpaid subscribed . .
Cited – Evans v Rival Granite Quarries Ltd CA 1910
The court discussed the nature of a floating charge, Buckley LJ describing it as: ‘A floating security is not a future security; it is a present security, which presently affects all the assets of the company expressed to be included in it. On the . .
Cited – In re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
Cited – Illingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
Cited – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Cited – Re: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
Cited – William Gaskell Ltd v Highley 1994
. .
Approved – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
Cited – In re Florence Land and Public Works Co 1878
The court considered a floating charge: ‘The question we have to decide must be decided, like all other questions of the kind, having regard to the surrounding circumstances under which the instrument was executed, and especially the respective . .
Cited – Re Holidair Ltd 1994
(Supreme Court of Ireland) The court considered whether a debenture created a floating charge over its book debts: ‘I am satisfied, accordingly, that the correct construction of the clause is that the trustee had a discretion to determine into what . .
Cited – Welsh Development Agency v Export Finance Co Ltd CA 1992
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was . .
At First Instance – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .

Cited by:
Cited – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Cited – Borwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .

Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Constitutional

Leading Case

Updated: 13 December 2021; Ref: scu.228273

Illingworth v Houldsworth: HL 1904

A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts being extinguished by payment to the company, and that other book debts should come in and take the place of those that had disappeared. That, my Lords, seems to me to be an essential characteristic of what is properly called a floating security. The recitals . . shew an intention on the part of both parties that the business of the company shall continue to be carried on in the ordinary way – that the book debts shall be at the command of, and for the purpose of being used by, the company. Of course, if there was an absolute assignment of them which fixed the property in them, the company would have no right to touch them at all. The minute after the execution of such an assignment they would have no more interest in them, and would not be allowed to touch them, whereas as a matter of fact it seems to me that the whole purport of this instrument is to enable the company to carry on its business in the ordinary way, to receive the book debts that were due to them, to incur new debts, and to carry on their business exactly as if this deed had not been executed at all. That is what we mean by a floating security.’ A floating charge: ‘A specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.’ (Lord Macnaghten)

Halsbury, Macnaghten LL
[1904] AC 355
England and Wales
Citing:
Appeal from – In re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
At First Instance – In re Yorkshire Woolcombers Association Ltd ChD 1903
Farwell J said: ‘A charge on all book debts which may now be, or at any time hereafter become charged or assigned, leaving the mortgagor or assignor free to deal with them as he pleases until the mortgagee or assignee intervenes, is not a specific . .

Cited by:
Cited – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Cited – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
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 . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Banking, Company

Updated: 13 December 2021; Ref: scu.191955

In re Yorkshire Woolcombers Association Ltd: CA 2 Jan 1903

Nature of Company’s Debenture Charge

The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the meaning of the Act, which does not contain all the three characteristics . . ‘. ‘I certainly think that if a charge has the three characteristics that I am about to mention it is a floating charge. (1) If it is a charge on a class of assets of a company present and future; (2) if that class is one which, in the ordinary course of business of the company, would be changing from time to time; and (3) if you find that by the charge it is contemplated that, until some future step is taken by or on behalf of those interested in the charge, the company may carry on its business in the ordinary way as far as concerns the particular class of assets I am dealing with.’ and (Vaughan Williams LJ) ‘ . . what you do require to make a specific security is that the security whenever it has once come into existence, and been identified or appropriated as a security, shall never thereafter at the will of the mortgagor cease to be a security.’

Romer LJ, Vaughan Williams LJ
[1903] 2 Ch 295
England and Wales
Citing:
Appeal from – In re Yorkshire Woolcombers Association Ltd ChD 1903
Farwell J said: ‘A charge on all book debts which may now be, or at any time hereafter become charged or assigned, leaving the mortgagor or assignor free to deal with them as he pleases until the mortgagee or assignee intervenes, is not a specific . .

Cited by:
Appeal from – Illingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
Cited – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Cited – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
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 . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 13 December 2021; Ref: scu.191954

National Westminster Bank Plc v Spectrum Plus Ltd and others: ChD 15 Jan 2004

The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book debts.

Vice Chancellor Andrew Morritt
[2004] 2 WLR 783, [2004] 1 All ER 981, [2004] BCC 51, [2004] 1 BCLC 335, [2004] EWHC 9 (Ch)
Bailii
England and Wales
Citing:
Doubted – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
Cited – Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
Cited – Hadley Industries Plc v Metal Sections Limited, Metsec (UK) Limited PatC 13-Nov-1998
A court no longer has the discretion as to whether to amend a patent upon application, but must, following European practice, do so when a proper application is made. This is the case despite the clear wording of the English Act. A judge at first . .
Cited – In re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
Cited – In re Yorkshire Woolcombers Association Ltd ChD 1903
Farwell J said: ‘A charge on all book debts which may now be, or at any time hereafter become charged or assigned, leaving the mortgagor or assignor free to deal with them as he pleases until the mortgagee or assignee intervenes, is not a specific . .
Cited – Illingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
Doubted – Chalk v Kahn 2000
. .
Doubted – Re Armagh Shoes Ltd 1984
. .
Doubted – In Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .
Doubted – Barclays Bank plc v Willowbrook International Ltd 1987
. .
Doubted – Re Permanent Houses (Holdings) Ltd 1988
. .
Coubted – Re Sperrin Textiles Ltd 1992
. .
Doubted – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Doubted – William Gaskell Ltd v Highley 1994
. .
Cited – In re Brightlife Ltd ChD 1987
Parties contractual freedom to be respected
A clause in a debenture gave a charge which provided that the chargor should not: ‘deal with its book or other debts or securities for money otherwise than in the ordinary course of getting in and realising the same which expression shall not . .
Cited – Re: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
Approved – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
Cited – Re Warden and Hotchkiss Ltd CA 1945
Judicial decisions upon which title to property depends or which, by establishing principles of construction or otherwise, form the basis of contracts or which affect the general conduct of affairs so that their alteration would mean, for example, . .
Cited – In Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Cited by:
Appeal from – 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 . .
At First Instance – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 13 December 2021; Ref: scu.191233

Siebe Gorman and Co Ltd v Barclays Bank Ltd: ChD 1979

It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had the unrestricted right to deal with the proceeds of any of the relevant book debts paid into its account, so long as that account remained in credit . . the charge on such book debts could be no more than a floating charge.’ The debenture in this case: ‘creat[ed] in equity a specific charge on the proceeds of [the book debts] as soon as they are received and consequently prevents the mortgagor from disposing of an unencumbered title to the subject matter of such charge without the mortgagee’s consent, even before the mortgagee has taken steps to enforce its security’.

Slade J
[1979] 2 LL Rep 142
England and Wales
Citing:
Applied – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .

Cited by:
Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Questioned – Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
Applied – Re Armagh Shoes Ltd 1984
. .
Applied – In Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .
Applied – Barclays Bank plc v Willowbrook International Ltd 1987
. .
Applied – Re Permanent Houses (Holdings) Ltd 1988
. .
Applied – Re Sperrin Textiles Ltd 1992
. .
Applied – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Applied – William Gaskell Ltd v Highley 1994
. .
Applied – Chalk v Kahn 2000
. .
Distinguished – In re Brightlife Ltd ChD 1987
Parties contractual freedom to be respected
A clause in a debenture gave a charge which provided that the chargor should not: ‘deal with its book or other debts or securities for money otherwise than in the ordinary course of getting in and realising the same which expression shall not . .
Considered – Re: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
Not Followed – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
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 . .
Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Overruled – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Applied – In re A Company (No 005009 of 1987); Ex parte Copp 1989
Knox J declined to look at evidence about an agreed overdraft limit, regarding it as a ‘collateral arrangement’. He said: ‘this is a type of transaction in respect of which judicial precedent is a particularly valuable guide to the commercial . .
Applied – In Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.191951

National Westminster Bank Plc v Rabobank Nederland: CA 24 Oct 2006

Lord Justice Auld
[2006] EWCA Civ 1578
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .
Appeal from – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .

Cited by:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 13 December 2021; Ref: scu.246364

National Westminster Bank Plc v Rabobank Nederland: ComC 14 Nov 2006

On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a statement of case in whole or in part at an early stage.’
and: ‘In my judgment, there can be no doubt that the court does have jurisdiction to strike out a claim or any severable part of a claim of its own volition whether immediately before or during the course of a trial. This is clear from the combined effect of CPR rr 1.4, 3.3 and 3.4 as well as 3PD 1.2, and by reason of its inherent jurisdiction.
However, the occasion to exercise this jurisdiction after the start of the trial is likely to be very rare. The normal course will be for all applications to strike out a claim or part of a claim on the merits to be made under CPR rr 3.4 or 24.2 and determined well in advance of the trial.’

Colman J
[2006] EWHC 2959 (Comm), [2007] 1 All ER (Comm) 975
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .
See Also – National Westminster Bank Plc v Rabobank Nederland CA 24-Oct-2006
. .

Cited by:
Approved – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.246734

National Westminster Bank Plc v Rabobank Nederland: ComC 3 Feb 2006

[2006] EWHC 218 (Comm)
Bailii
England and Wales
Cited by:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .
See Also – National Westminster Bank Plc v Rabobank Nederland CA 24-Oct-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.238653

National Westminster Bank Plc v Rabobank Nederland: ComC 7 Aug 2006

Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers.

Colman J
[2006] EWHC 2108 (Comm)
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .

Cited by:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .
See Also – National Westminster Bank Plc v Rabobank Nederland CA 24-Oct-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 13 December 2021; Ref: scu.244512

Elektrim SA v Vivendi Holdings 1 Corp: CA 24 Oct 2008

The court considered the construction of a ‘no action’ clause in a bond, under which clause only the trustee would have the right to take action to enforce it.

Sir Anthony May, Hallett LJ, Lawrence Collins LJ
[2008] EWCA Civ 1178, [2009] 2 All ER (Comm) 213, [2009] 1 Lloyd’s Rep 59
Bailii
England and Wales
Citing:
Cited – Casurina Limited Partnership v Rio Algom Ltd 21-Jan-2004
(Court of Appeal for Ontario) The upheld the lower court’s approval of the approach in the United States (citing Feldbaum v. McCrory Corp., 1992 Del. Ch. LEXIS 113) that in consenting to no-action clauses by purchasing bonds, bondholders waive their . .
Cited – Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.277141

Promontoria (Chestnut) Ltd v Simpson and Another: ComC 22 Jul 2020

[2020] EWHC 2136 (Comm)
Bailii
England and Wales
Citing:
See Also – Promontoria (Chestnut) Ltd v Simpson and Another ComC 23-Jul-2020
Claim against the defendants under two guarantees which they gave to the Clydesdale Bank in the cumulative amount of pounds 300,000, together with interest. . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 13 December 2021; Ref: scu.653898

Office of Fair Trading v Lloyds TSB Bank PlC and Others: HL 31 Oct 2007

The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial situation did not apply where the creditor was within the UK. Section 75(2) is therefore an inadequate basis for implying a limitation in the scope of section 75(1). Even at the time of the Act it was anticipated that such arrangements may involve a foreign aspect.

Lord Hoffmann , Lord Hope of Craighead , Lord Walker of Gestingthorpe , Lord Brown of Eaton-under-Heywood, Lord Mance
[2007] UKHL 48, [2007] 3 WLR 733
Bailii
Consumer Credit Act 1974 75(1) 75(2)
England and Wales
Citing:
Cited – Ex parte Blain; In re Sawers CA 1-Aug-1879
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the . .
Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – English v Donnelly 1958
An agreement to subject to a foreign law a relationship which is in all other respects domestic equates with or is analogous to a contrary agreement. . .
At First Instance – Office of Fair Trading v Lloyds TSB Bank Plc and others ComC 12-Nov-2004
The OFT failed in its attempt to make the defendant credit card company liable under the 1974 Act for purchases abroad. . .
Appeal from – Office of Fair Trading v Lloyds TSB Bank Plc and others CA 22-Mar-2006
The OFT appealed a decision denyng that a credit card issuer had connected lender liability in respect of purchase by card holders abroad.
Held: The company took the benefit of having its card accepted by suppliers abroad, and therefore also . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 10 December 2021; Ref: scu.260311

Aeris Invest v ECB (Judgment): ECFI 6 Oct 2021

Access to documents – Decision 2004/258 / EC – Documents relating to the adoption of a resolution mechanism with regard to Banco Popular Espanol – Partial refusal of access – Exception relating to the protection of the confidentiality of the deliberations of decision-making bodies of the ECB – Documents reflecting the outcome of the deliberations of the decision-making bodies of the ECB – Obligation to state reasons – Exception relating to the protection of financial policy, monetary or economic policy of the Union or of a Member State – Exception relating to the protection of the stability of the financial system in the Union or in a Member State – Exception relating to the protection of the confidentiality of information protected as such under Union law – Concept of confidential information – General presumption of confidentiality – Derogations from the obligation of professional secrecy – Article 47 of the Charter of Fundamental Rights’

T-827/17, [2021] EUECJ T-827/17
Bailii
European

Human Rights, Banking

Updated: 07 December 2021; Ref: scu.668532

Casurina Limited Partnership v Rio Algom Ltd: 21 Jan 2004

(Court of Appeal for Ontario) The upheld the lower court’s approval of the approach in the United States (citing Feldbaum v. McCrory Corp., 1992 Del. Ch. LEXIS 113) that in consenting to no-action clauses by purchasing bonds, bondholders waive their rights to bring claims that are common to all bondholders, and thus can be prosecuted by the trustee, unless they first comply with the procedures in the instrument constituting the bonds.

(2004) 40 BLR (3d) 112, 2004 CanLII 30309, (2004) 181 OAC 19
Canlii
Canada
Cited by:
Cited – Elektrim SA v Vivendi Holdings 1 Corp CA 24-Oct-2008
The court considered the construction of a ‘no action’ clause in a bond, under which clause only the trustee would have the right to take action to enforce it. . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 December 2021; Ref: scu.277161

Iccrea Banca (Admissibility – Lack of Jurisdiction of National Court To Review The Legality of Acts of The Single Resolution Board – Opinion): ECJ 9 Jul 2019

Preliminary ruling – Admissibility – Lack of jurisdiction of national court to review the legality of acts of the Single Resolution Board – Requirement that acts of the Single Resolution Board must be challenged before the General Court – Harmonisation of legislation – Banking union – Recovery and resolution of credit institutions – Ordinary and extraordinary contributions to the national resolution fund – Determination of the 2016 ex ante contribution to the Single Resolution Fund – Contributions from cooperative credit institutions – Adjustment of the contributions in proportion to the risk profile – Article 5(1) of Delegated Regulation (EU) 2015/63 – Exclusion of certain liabilities from the calculation of contributions

C-414/18, [2019] EUECJ C-414/18_O
Bailii
European
Cited by:
Opinion – Iccrea Banca (Admissibility – Lack of Jurisdiction of National Court To Review The Legality of Acts of The Single Resolution Board) ECJ 3-Dec-2019
Reference for a preliminary ruling – Directive 2014/59/EU – Banking Union – Recovery and resolution of credit institutions and investment firms – Annual contributions – Calculation – Regulation (EU) No 806/2014014 – Implementing Regulation (EU) . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 December 2021; Ref: scu.665118

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 defendant, and garnishee orders were sought.
Held: It is not correct to characterise the garnishee or third party debt order as a claim in personam made against the third party in England. It is enforcement of the judgment in rem against the debt, which in this case was situated in Switzerland. The garnishee order was discharged.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett
[2003] UKHL 31, Times 13-Jun-2003, Gazette 17-Jul-2003, [2003] 3 All ER 501, [2004] 1 AC 300, [2003] ILPr 45, [2003] 2 All ER (Comm) 101, [2003] 1 CLC 1206, [2003] 3 WLR 14
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982 3A
England and Wales
Citing:
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 – Denilauler v SNC Couchet Freres (Judgment) ECJ 21-May-1980
The courts of the place or, in any event, of the Contracting State, where the assets subject to the measures sought are located, are those best able to assess the circumstances which may lead to the grant or refusal of the measures sought or to the . .
Cited – AS-Autoteile Service GmbH v Pierre Malhe (Judgment) ECJ 4-Jul-1985
The particular areas which fall under Article 16, certain disputes regarding tenancies, companies, registers, industrial property and the enforcement of judgments, are matters which, because of their particular difficulty or complexity, require that . .
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 . .
Cited – Reichert and Kockler v Dresdner Bank ECJ 26-Mar-1992
The case concerned article 16(5) of the Brussels Convention, among other articles.
Held: It is necessary to take account of the fact that the essential purpose of the exclusive jurisdiction of the courts of the place in which the judgment has . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Banking

Updated: 05 December 2021; Ref: scu.183380

Jyske Bank Gibraltar Ltd v Administracion Del Estado: ECJ 25 Apr 2013

ECJ Judgment – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive 2005/60/EC – Article 22(2) – Decision 2000/642/JHA – Requirement to report suspicious financial transactions applicable to credit institutions – Institution operating under the rules on the freedom to provide services – Identification of the national financial information unit responsible for the collection of information – Article 56 TFEU – Obstacle to freedom to provide services – Overriding requirements in the public interest – Proportionality

R. Silva de Lapuerta AP
[2013] EUECJ C-212/11, C-212/11
Bailii
Directive 2005/60/EC 22(2)
Citing:
Opinion – Jyske Bank Gibraltar Ltd v Administracion Del Estado ECJ 4-Oct-2012
ECJ Opinion – Combating of money laundering and terrorism financing – Directive 2005/60/EC – Obligation on credit institutions to declare suspicious financial transactions – Institutions operating under the . .

Lists of cited by and citing cases may be incomplete.

European, Banking, Crime

Updated: 04 December 2021; Ref: scu.526583

Bank of England v Vagliano Brothers: HL 5 Mar 1891

The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations deriving from the antecedent law.
Lord Watson said: ‘The decision of the Queen’s Bench in Robarts v. Tucker 16 QB 560 has, ever since its date, been accepted in mercantile practice as determining the obligations incumbent upon bankers who agree to retire acceptances on account of their customers. It casts upon them the whole duty of ascertaining the identity of the person to whom they make payment with the payee whose name is upon the bill. They may pay in good faith to the wrong person, in circumstances by which the acceptor himself or men of ordinary prudence might have been misled; but they cannot take credit for such a payment in any question with the acceptor. It has been said by one of the learned Judges that the rule is a harsh one, and it is possible that in some circumstances it may operate harshly; but it appears to me to be settled beyond dispute, and I see no reason for suggesting any doubt that it puts a reasonable construction upon the contract constituted by the agreement of the banker to pay his customers’ acceptances when they fall due. In the absence of any special stipulations it construes the arrangement so constituted as importing that, on the one hand, the customer is to furnish or repay to the banker the funds necessary to meet his obligations as acceptor; and that, on the other hand, the banker undertakes to apply the money provided by the customer, or advanced on his account, so as to extinguish the liability created by his acceptance. Accordingly, no payment made by the banker which leaves the liability of the acceptor undischarged can be debited to the latter.’
Lord Herschell said: ‘I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.’ and ‘If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even an obsolete proceeding such as a demurrer to evidence.’
Lord Halsbury LCJ said: ‘It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed.’

Lord Herschell, Lord Halsbury LCJ, Lord Watson, Lord Bramwell
[1891] AC 107, (1891) 60 LJQB 145, (1891) 7 TLR 333, [1891] UKLawRpAC 6
Commonlii
Bills of Exchange Act 1882 7(3)
England and Wales
Citing:
Cited – Robarts And Others v Tucker 1-Feb-1851
. .

Cited by:
Cited – Regina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
Cited – O’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Constitutional

Updated: 04 December 2021; Ref: scu.464675

Robarts And Others v Tucker: 1 Feb 1851

[1851] EngR 208, (1851) 16 QB 560, (1851) 117 ER 994
Commonlii
Cited by:
Cited – Bank of England v Vagliano Brothers HL 5-Mar-1891
The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 04 December 2021; Ref: scu.296524

T-Mobile Austria v Verein fur Konsumenteninformation: ECJ 9 Apr 2014

ECJ Directive 2007/64/EC – Payment services – Article 4.23 – Concept of payment instrument – Ordering transfers through online banking and by paper transfer order – Article 52(3) – Right of the payee to request from the payer charges for the use of a payment instrument – Power of Member States to lay down a general prohibition – Contract between a mobile phone operator and individuals

T. von Danwitz, P
[2014] EUECJ C-616/11
Bailii
Directive 2007/64/EC
European

Banking

Updated: 02 December 2021; Ref: scu.523643

Josife v Summertrot Holdings Ltd: Admn 4 Apr 2014

The claimant sought to avoid liability under a banking guarantee, saying that he had lacked mental capacity to grant it.
Held: The appeal failed. The judge had correctly applied the law. The execution of the guarantee had been especially reported and noted by independent solicitors, and: ‘the Guarantee was drawn up at the offices of Clifford Harris and Co immediately after a meeting, that the idea of a certificate at the end of the Guarantee had been that of Summertrot’s solicitor, but that it had been contemplated that the relevant advice would be given by Mr Clifford Harris. If there was something in the files of Clifford Harris which threw doubt on this then this was available to Christopher Josife and it would have been adduced before the Deputy Registrar. It is inherently unlikely (and unreasonable to expect evidence) that Clifford Harris would have noted that Christopher Josife was to all appearances incapable of giving instructions but that the solicitor had nonetheless continued to act.’

Norris J
[2014] EWHC 996 (Ch)
Bailii
Citing:
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .

Lists of cited by and citing cases may be incomplete.

Banking, Health

Updated: 02 December 2021; Ref: scu.523450

Aria Inc and Another v Credit Agricole Corporate and Investment Bank and Another: ComC 7 Feb 2014

‘The claimants are asking the court to continue an injunction granted ex parte on notice on 8 October 2013, which restrains the first defendant, whom I shall refer to as ‘the Bank’, from making payment to the second defendant, whom I shall refer to as ‘WFS’, under a guarantee’

Leggatt J
[2014] EWHC 872 (Comm)
Bailii

Banking, Litigation Practice

Updated: 02 December 2021; Ref: scu.523285

UBAF Ltd v European American Banking Corporation: CA 1984

The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that the signature was not that of the bank, and that even if it was, the action would be statute barred.
Held: The court refused to strike out the claim. A company itself made a representation, if it produced a document which was signed by an authorised officer or agent acting within the scope of his actual authority. This applied to bind the defendant bank. The nature of a syndicated loan was a fiduciary arrangement, and the obligations on a lead bank were continuing for limitation purposes, time did not run, and the obligation was not time barred. The issue would be settled at trial when it was established when the defendant could be said to have come to know of the alleged deceit.

Ackner LJ
[1984] QB 713, [1984] 1 WLR 508, [1984] CLY 1579
England and Wales
Citing:
Explained – Swift v Jewsbury and Goddard 1874
. .
Explained – Hirst v West Riding Banking Co CA 1901
The representation on which the claim made was was in a letter signed by the branch manager of the defendant bank and the court evidently assumed that this could not be equated with the bank’s own signature.
Held: The action against the bank . .
Considered – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Banking, Limitation, Torts – Other, Company

Updated: 29 November 2021; Ref: scu.181338

Abbey National Plc v Tufts: CA 16 Feb 1999

A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed with notice of the fraud. She claimed that she had operated under the undue influence of her husband, and that, again, the bank was fixed with notice. That the husband was the agent of the bank was rejected. No equitable right arose because she was herself party to the fraud. The section dealt with issues of title, not lending decision. The appeal was dismissed.

Gazette 24-Feb-1999, [1999] EWCA Civ 794
Law of Property Act 1925 199 (1) (ii) (a
England and Wales
Citing:
Cited – Re Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
Cited – Quennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of andpound;1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a . .

Lists of cited by and citing cases may be incomplete.

Agency, Undue Influence, Banking, Equity

Updated: 29 November 2021; Ref: scu.145709