Category: Banking

Wuhan Guoyu Logistics Group Co Ltd and Anr v Emporiki Bank of Greece Sa: CA 19 Dec 2013

‘A bank, ‘the Bank’, is properly called upon by a shipbuilder beneficiary, ‘the Seller’, to make a payment under an on demand performance guarantee issued at the request of the Buyer. The Bank guaranteed due and punctual payment by the Buyer of the second instalment of the price of a vessel under a building contract. The Seller’s demand for payment by, firstly, the Buyer, and secondly, in default, the Bank was made in all good faith. However by the time payment was made by the Bank pursuant to the guarantee, it had been conclusively determined by an arbitration award which had become final and subject to no further challenge that the second instalment had not in fact fallen due. Is the money paid over by the Bank pursuant to its obligation under the guarantee held by the Seller on trust for the Bank, alternatively on trust for the Buyer who would in turn hold the money on trust for the Bank?’

Longmore, Rimer, Tomlinson LJJ
[2013] EWCA Civ 1679, [2014] BLR 119, [2014] CILL 3460, [2014] 1 Lloyd’s Rep 273
Bailii
England and Wales

Banking

Updated: 28 November 2021; Ref: scu.519326

Bastone and Firminger Ltd v Nasima Enterprises (Nigeria) Ltd and Others: ComC 20 May 1996

Banking – collecting banker – remitting banker – privity of contract Banking – remitting bank – right to damages – other than indemnity by customer Conflict of laws – RSC Order 11 r.1(1)(f) – ‘damage sustained within the jurisdiction’ – meaning Amendment of writ – causes of action arising after date of writ – exception – discretion
Rix J took a general view of the court’s discretion to allow the addition (within the limitation period) of causes of action based on assignments subsequent to the writ, but was also able to distinguish Roban Jig on the facts.

Rix J
[1996] CLC 1902
England and Wales
Cited by:
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 26 November 2021; Ref: scu.186603

Fielding and Platt Ltd v Selim Najjar: CA 17 Jan 1969

The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the invoice as ‘parts for rolling mill’. Payment was made by promissory notes. After the first two promissory notes had not been met, the plaintiff ceased production, and sued on the notes and succeeded summarily. The defendant appealed.
Held: The plaintiff was entitled to payment under the first note, because it had performed its obligations under the contract, and there was no failure of consideration. However there was no such completed consideration for the second promissory note, and the defendant should be allowed to defend.
The request to mis-invoice the goods, if illegal, was severable, and did not undermine the contract as a whole. To succeed in their defence of illegality, the defendant had to show that the plaintiff was aware that performance by importing the plant would be illegal, and had agreed to go ahead notwithstanding that illegality. That had not been demonstrated in this case.
An innocent party who is ignorant of the facts or circumstances that would make performance of a contract illegal may be allowed to recover money paid by him under the illegal contract.
Only in exceptional circumstances should a court deprive a claimant of judgment on a claim based on a promissory note.
Lord Denning MR said: ‘The plaintiffs, Fielding and Platt Ltd are manufacturers of machinery. Their business is in Gloucester. In the middle of 1965 they entered into a contract with a Lebanese company called SCIALE Aluminium of Lebanon. They agreed to make and sell to the Lebanese company an aluminium extrusion press for a total sum of andpound;235,000. The plant and equipment was to be delivered free on board at a British port. The time for delivery was 10 1/2 months from 19 June 1965. Payment was to be made by six promissory notes given by the defendant, the managing director of the Lebanese company, Mr Selim Najjar, personally; and he deposited shares, of his own, as security for the due payment of the promissory notes. The promissory notes were payable at intervals during the progress of the work. The first four were payable whilst the plaintiffs were making the machinery in England. Thus the first note was payable on 4 October 1965, for andpound;23,500; the second on 4 December 1965, for andpound;47,000, the third on 4 February 1966, for andpound;47,000; and the fourth on 4 April 1966, for another andpound;47,000. The fifth note was payable on 4 June 1966, for andpound;47,000, which was just about the time when the machinery was to be delivered to the port. The sixth note, the final one, for andpound;23,500, was payable on 4 August 1966.
On 4 October 1965, the first promissory note, for andpound;23,500, fell due. It was not paid. The defendant apologised for not paying it. He asked for a few days’ grace. He said that had been agreed. So be it. He was given a few days-indeed more than a few days. Still he did not pay. When the note was a fortnight overdue he wrote on 18 October 1965: ‘It is my estimate that by the middle of next month all will be arranged and I will be able to proceed with the payments.’ He realised that his non-payment might result in delays on the English side, for he added: ‘Please remember that any delays on your part due to delayed payments will be acceptable.’ When the note was more than three weeks overdue, the plaintiffs decided to suspend work on the contract. On 27 October 1965, they cabled to the Lebanese company:
‘We have today suspended all work on your contract with us and this includes notification to all our material suppliers that they must do no further work on this contract. We have been forced to take this action to comply with the requirements of our authorities. Our current financial commitment to material and equipment suppliers plus design and stock material and labour charges, is extremely heavy. We trust you appreciate that this is your liability. As a result of suspending all work you will appreciate that our delivery date will be considerably extended and the amount of the delay will depend on the time taken for you to resolve your difficulties.’
The defendant never paid the first promissory note or any of the others. He never paid anything. In consequence, the plaintiffs suspended work on the contract, and it remained suspended. No further work was done on it. There were negotiations for a revival of the contract, but they came to nothing.
Stopping there, it is quite plain to me that the defendant was liable to pay the first of the promissory notes. We have repeatedly said in this court that a bill of exchange or a promissory note is to be treated as cash. It is to be honoured unless there is some good reason to the contrary. It is suggested that, on the first note, there was a failure of consideration. That suggestion is quite unfounded. The plaintiffs were getting on with their part of the contract. They were, they say, ordering goods from their suppliers and getting on with the work. At any rate, there is no evidence to the contrary; and, unless they were themselves in default, they were clearly entitled to payment of the first note. The position as to the second note is different. Before it fell due, the defendant said: ‘I cannot pay’; and the plaintiffs replied: ‘We, therefore, suspend work.’ Seeing that the plaintiffs had suspended work, they could not claim payment in full, but at most damages. They could not sue on each note as it fell due-each of the six-when they had suspended all work on the contract. So there is an available defence on the second note. But not on the first note.
This brings me to the second point. In answer to the claim in both notes, the defendant raises a defence of illegality. He says that it was his intention to break the laws of the Lebanon and that the plaintiffs were parties to it. In order to import the extrusion press into the Lebanon, he had to get an import licence from the Lebanon authorities. He had already got a licence to import a two million pound rolling mill, but he had not got a licence to bring in an extrusion press. His intention was to import it without a licence, and he says that the plaintiffs agreed to help him to do so. The plaintiffs agreed, he says, to put in a false invoice. He says: ‘I asked you to invoice the press as part of a rolling mill, and you agreed to it, and, therefore, you cannot recover anything.’ That defence does not commend itself to me. Here is a man who prays in aid his own illegality-he admits he was trying to evade the laws of his own country-and he seeks to implicate the plaintiffs in it.
In order for this to be any kind of defence, he must show first of all that the contract contained a term that the plaintiffs were to give a false invoice; so that it could not lawfully be performed. For if it would be lawfully performed (by giving a correct invoice) the plaintiffs can certainly sue on it. I do not think there was any such term. During the negotiations the Lebanese company did ask the plaintiffs to invoice the press as ‘parts for rolling mill’. But this request did not, as I read the correspondence, become a term of the contract. The contract was concluded on 13 July 1965. And the only subsequent reference was contained later in the confirmation which the plaintiffs sent to the Lebanese company. There was a long detailed description of the goods covering many pages and then, in brackets, were the words (‘to be invoiced as ‘parts for rolling mill”). That was a mere notification by the Lebanese company of the way they wanted an invoice made out. It was not a term of the contract itself. The plaintiffs would therefore quite justifiably refuse to give such invoice, and insist on the contract being lawfully performed.
In the second place, even if it were a term, the defendant would have to show that the plaintiffs were implicated in this illegality, that is that they had knowledge of it and were actively participating in it, see Foster v Driscoll, Lindsay v Attfield, Lindsay v Driscoll ([1929] 1 KB 470 at p 518; [1928] All ER Rep 130 at pp 146, 147) per Sankey LJ. I can see no evidence worthy of the name to suggest that the plaintiffs knew of this illegality. The only evidence is contained in a cable about the import licence. On 16 June 19658 the plaintiffs stated that they were agreeable to the proposed contract ‘subject to evidence of satisfactory importing licence arrangements’. The Lebanese company replied:
‘Concerning our import licence, we have a regular import licence for a total amount of two million sterling, for a complete aluminium plant. This licence is more than what we require for an extrusion press, and since we don’t want to lose our right for the remaining amount, we want the material to be invoiced as ‘parts for rolling mill’. This of course is for local consumption. We discussed these details with your representative here, and will make sure that you do the correct thing when the time comes. Please bear in mind that few items (just any thing) of the total order should be in Beirut the first week of October the latest, because our licence is valid until October 24, 1965, and before that date something should have arrived.’
I do not think that cable was enough to give the plaintiffs knowledge of the illegality. It only shows that the Lebanese company thought it convenient, for local consumption, to have the machines invoiced as parts for a rolling mill, instead of the more accurate description of an aluminium extrusion press.
I cannot help remarking that the defendant seems to have a special fondness for false invoices. At a later stage he suggested that the plaintiffs should give an invoice for only half the cost, instead of the whole; so as to save customs duties. He also suggested that the plaintiffs should write a false letter (which he drafted) to show the Lebanese customs authorities. The plaintiffs very properly did not agree to those suggestions. And when the matter finally came to a head, the plaintiffs firmly said: ‘We must invoice the goods correctly.’ I know there is a suggestion in the affidavit of the defendant that the plaintiffs were implicated, but, in the face of the documents, I see no substance in this suggestion.
There is another point: even if there was a term that these goods should be invoiced falsely in order to deceive the Lebanese authorities, I do not think it would render the whole contract void. That term would be void for illegality. But it can clearly be severed from the rest of the contract. It can be rejected, leaving the rest of the contract good and enforceable. The plaintiffs would be entitled, despite the illegal term, to deliver the goods FOB English port, and send a true and accurate invoice to the Lebanese buyer. The Lebanese buyer could not refuse the goods by saying ‘I stipulated for a false invoice’. He could not rely on his own iniquity so as to refuse payment.
In my opinion, therefore, the defence of illegality is clearly bad. I would allow judgment to be entered on the first note and for the interest thereon; and give leave to defend as to the second.’
Davies LJ said: ‘I agree with the result reached by Lord Denning MR and I do not propose to add anything.’
Widgery LJ said: ‘I also agree. I find each of the main issues in this case one of some difficulty and I am much indebted to counsel for the defendant for his argument; but in the end I have concluded that they are sufficiently determined to justify judgment under RSC, Ord 14 in respect of the amount of the earlier promissory note. So far as the allegation of illegality is concerned, there are I think two independent and sufficient answers to it. First, in order to succeed on this question, the defendant must show that the plaintiffs were aware of the illegal purpose in the falsification of the invoice and that they agreed actively to participate in that purpose so that goods could be illegally imported into the Lebanon which would not otherwise be allowed to enter. The only basis on which it is said that the plaintiffs at any material time had knowledge of that illegal purpose is the telex message of 18 June from the Lebanese company, to which Lord Denning MR has referred. If I may just repeat again the essential words, they were replying to an enquiry from the plaintiffs as to their import licence, and they stated:
‘We have a regular import licence for a total amount of two million sterling, and for a complete aluminium plant. This licence is more than what we require for an extrusion press and since we don’t want to lose our right for the remaining amount, we want the material to be invoiced as’ parts for rolling mill’. This, of course, is for local consumption . . ‘
When that was first read to us, for my part I found it quite incomprehensible, and it is not until one gets further in the correspondence that the real point of it becomes clear. The plaintiffs, of course, had to judge the legality or illegality of what was proposed, without the benefit of the correspondence which developed months later as to the terms of that telex message. I can see no reason whatever to suppose that the plaintiffs should see more in that message than that the invoice was to indicate that the goods were part of a larger matter, which in itself would not involve any illegality that I can see. It is only later that one appreciates that the character of the goods may be of some relevance, and if the plaintiffs did agree to invoice the goods as part of a larger whole, I cannot for my part see that that would involve them in any illegality sufficient to excuse the defendant from liability in this case. Alternatively, as Lord Denning MR has said, I am of the opinion that there was no term in this contract requiring the plaintiffs to invoice the goods as part of a rolling mill. The chief contractual document is a formal and lengthy quotation which the plaintiffs submitted to the defendant setting out details of the machine to be supplied; and on 13 July the Lebanese company accepted that quotation in these words:
‘please consider this letter as an official order based on your quotation of July 5, 1965 and our different telexes to which you have given your agreement.’
At that point there was nothing in the contractual documents to imply an obligation on the plaintiffs to invoice the goods as part of a rolling mill. Counsel for the defendant has referred to the telexes mentioned in that letter, but there was no agreement by the plaintiffs to any telex involving a special form of invoicing. When the plaintiffs received that acceptance of their offer, they sent a formal and detailed confirmation; and it is to be observed that under the terms of their agreement no contract was to be binding on them until that confirmation had been given. In my judgment, that was no more than a confirmation of that which was already agreed, and it would be quite unreal to regard it as a counter-offer containing a new term whereby the goods were to be invoiced as part of a rolling mill.
On the second issue, namely, the failure of consideration, for which the notes were given, my opinion is that these notes were given by the defendant in consideration of the plaintiffs entering into the agreement with the Lebanese company and carrying out that agreement. It is arguable that if counsel for the defendant can sustain his contention that the plaintiffs repudiated the contract in November and that that repudiation was accepted by the Lebanese company, then perhaps it can be shown that liability on bills maturing after the date of the repudiation had itself been determined; but, like Lord Denning MR I can see no possible ground on which it can be said that the consideration for the first bill, which would mature in October 1965, at a time when the plaintiffs were in no way in default, can have been rendered wholly ineffective by virtue of that which followed.
I also would accordingly allow the appeal to the extent that judgment should be entered only in respect of the amount of the first bill and interest thereon.’

Lord Denning MR, Davies, Widgery LJJ
(1969) 113 Sol Jo 160, [1969] 1 WLR 357, [1969] 2 All ER 150
England and Wales
Citing:
Cited – Scott v Gillmore 6-Jul-1810
A bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value, is totally void, though part of the consideration was money lent -The statute 24 G. 2, c. 40, s. 12, making illegal the sale of . .
Cited – Regazzoni v KC Sethia (1994) Ltd CA 1956
The rule against enforcing foreign political laws did not require it to enforce a contract that violated Indian laws against export to South Africa. The court permitted recognition but not enforcement of foreign revenue laws.
Denning LJ said: . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 23 November 2021; Ref: scu.459793

Director of Public Prosecutions v Scarlett: CACD 7 Feb 2000

A defendant subject to a confiscation order in criminal proceedings for drugs related offences could be ordered to repatriate assets from banks accounts held abroad. The absence of an explicit power in this behalf did not prevent the order because of the wide power to make such ancillary orders to ensure compliance with an order as appeared necessary. An additional punishment for contempt for failing to obey was not punishing him twice, and he could purge the contempt if he chose.

Times 07-Feb-2000
England and Wales

Criminal Sentencing, Banking, Contempt of Court

Updated: 23 November 2021; Ref: scu.80043

In re Banque des Marchands de Moscou (Koupetschesky) (No 2): CA 1954

A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were signed, purporting to be orders from the Russian bank to the one in London directing it to pay to the order of O, a russian, andpound;10,000 in the one case and andpound;2000 in the other. The Russian bank was dissolved under a Russian degree in or about January 1918, and any liability of the banker to O was extinguished in Russian law. On May 30 1932 after the dissolution of the russian bank a winding up order in respect of it was made in England under the Companies act 1929 section 338. On September 21, 1932, O, being then domiciled in France, lodged a proof in the winding up in respect of an alleged that the andpound;12,000 being the aggregate of the two sums of andpound;10,000 and andpound;2000. No application for leave to serve a writ out of the jurisdiction for the purpose of recovering either of the two sums was made. O died and assets having come into the hands of the liquidator and the liquidator having rejected the proof on November 12 1952, O’s widow and administratrix applied to the court by summons dated December 3 1952, to reverse the liquidator’s decision.
Held: The debts of andpound;10,000 and andpound;2,000 were locally situate in Russia where the russian bank had resided, and even if the debts could have been recovered in England or by action instituted in england, that fact would not have made them locally situate in England ; and accordingly, the debts remained subject to the nationalisation and other degrees of the Soviet government, and the proof was rightly rejected.
A chose in action must be regarded as situated in a country where it is enforceable. A possibility of serving process out of the jurisdiction under Order 11 does not have the effect of altering the local situation of a chose in action so as to bring it within the jurisdiction.

Romer LJ
[1954] 2 All ER 746, [1954] 1 WLR 1108, 98 Sol Jo 557
England and Wales
Cited by:
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Banking, Insolvency, International

Updated: 25 November 2021; Ref: scu.183831

Perenicova And Perenic: ECJ 15 Mar 2012

ECJ Consumer protection – Consumer credit agreement – Incorrect statement of annual percentage rate of charge – Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole
Held: ‘a finding that a commercial practice is unfair has no direct effect on whether the contract is valid from the point of view of Article 6(1) of Directive 93/13.’

A. Tizzano, P
[2012] EUECJ C-453/10, C-453/10
Bailii
Citing:
Opinion – Perenicova And Perenic French Text ECJ 29-Nov-2011
ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 4, paragraph 1 and Article 6, paragraph 1 – Unfair terms in consumer contracts – Directive 2005/29/EC – Unfair commercial practices of companies . .

Lists of cited by and citing cases may be incomplete.

European, Consumer, Banking

Updated: 21 November 2021; Ref: scu.516211

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.

[2020] EWHC 2137 (Comm)
Bailii
England and Wales
Cited by:
See Also – Promontoria (Chestnut) Ltd v Simpson and Another ComC 22-Jul-2020
. .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 20 November 2021; Ref: scu.653899

Iranian Offshore Engineering and Construction Co v Council af The European Union: ECFI 6 Sep 2013

ECJ Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Action for annulment – Time-limit for amendment of the form of order sought – Admissibility – Obligation to state reasons – Manifest error of assessment

Pelikanova P
T-110/12, [2013] EUECJ T-110/12
Bailii
European

International, Banking

Updated: 20 November 2021; Ref: scu.515166

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 other hand, it is not a specific security; the holder cannot affirm that the assets are specifically mortgaged to him. The assets are mortgaged in such a way that the mortgagor can deal with them without the concurrence of the mortgagee. A floating security is not a specific mortgage of the assets, plus a licence to the mortgagor to dispose of them in the course of his business, but is a floating mortgage applying to every item comprised in the security, but not specifically affecting any item until some event occurs or some act on the part of the mortgagee is done which causes it to crystallise into a fixed security.’

Buckley LJ
[1910] 2 KB 979
England and Wales
Cited by:
Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
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

Updated: 19 November 2021; Ref: scu.198018

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 charge, and cannot be. The very essence of a specific charge is that the assignee takes possession, and is the person entitled to receive the book debts at once. So long as he licenses the mortgagor to go on receiving the book debts and carry on the business, it is within the exact definition of a floating security.’

Farwell J
[1903] 2 Ch 284
England and Wales
Cited by:
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 . .
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 – In Re Westmaze Ltd (In Administrative Receivership) ChD 15-May-1998
Westmaze were mechanical engineers. They gave a charge to secure borrowings, which described itself as a fixed charge.
Held: A Charge over a company’s book and trading assets was in fact floating even though described as a fixed charge unless . .
At First Instance – 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 . .

Lists of cited by and citing cases may be incomplete.

Banking, Company

Updated: 19 November 2021; Ref: scu.191953

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) 2015/81 – Uniform procedure for the resolution of credit institutions and investment firms – Administrative procedure involving national authorities and an EU body – Exclusive decision-making power of the Single Resolution Board – Procedure before the national courts – Failure to bring an action for annulment before the EU Courts in good time – Delegated Regulation (EU) 2015/63- Exclusion of certain liabilities from the calculation of contributions – Interconnectedness of a number of banks

[2019] EUECJ C-414/18, C-414/18, ECLI:EU:C:2019:1036
Bailii
European
Citing:
Opinion – 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 – . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 19 November 2021; Ref: scu.669838

Madho Row Chinto Punt Golay (And After His Death, His Brother, Eswunt Row Chinto Punt) v Bhookun-Das Boolaki-Das: 8 Feb 1837

A party resident at Baroda indorsed two Hoondies, or Bills of Exchange, in the name of a firm carrying on the business of banking at Surat, alleging himself to be the Gomashtah or Agent of the firm, and afterwards, on the Bills being dishonoured, absconded.
Held: that in order to fix the firm at Surat with the amount of the Bills, clear evidence ought to have been produced of the authority to act as Gomashtah, and their Lordships not Being satisfied with the evidence admitted in the Courts below, reversed the decrees of both the Zillah and the Sudder Courts with costs.

[1837] EngR 491, (1837) 1 Moo Ind App 351, (1837) 18 ER 143
Commonlii
England and Wales

Banking

Updated: 17 November 2021; Ref: scu.313608

Evans and Another v Finance-U-Ltd: CA 18 Jul 2013

The court was asked whether FUL remained able to enforce the bill of sale to recover unpaid arrears in respect of the loan which Mr and Mrs Evans took out in order to purchase the car. The purchase price of the car was andpound;7,290 which the claimants financed by paying a cash deposit of andpound;1,400 and by borrowing the remaining andpound;5,890 from FUL under the terms of a loan agreement dated 20th April 2007.

Mummery, Patten, Black LJJ
[2013] EWCA Civ 869
Bailii
England and Wales

Consumer, Banking

Updated: 17 November 2021; Ref: scu.513515

Gonzalez Calvet v SRB (Order): ECJ 30 Sep 2021

Appeal – Article 181 of the Rules of Procedure of the Court – Economic and monetary policy – Single resolution mechanisms for credit institutions and certain investment firms – Resolution procedure applicable in the event of proven or foreseeable failure of an entity – Decision refusing to grant financial compensation to the shareholders and creditors concerned – Content of the application – Lack of means and arguments – Appeal in part clearly inadmissible and in part clearly unfounded

C-27/21, [2021] EUECJ C-27/21P_CO
Bailii
European

Banking

Updated: 17 November 2021; Ref: scu.668514

European Commission v Kingdom of Belgium: ECJ 6 Jun 2013

ECJ Failure of a Member State to fulfil obligations – Articles 56 TFEU and 63 TFEU – Articles 36 and 40 of the EEA Agreement – Tax legislation – Tax exemption reserved to interest payments by resident banks and excluding interest payments by banks established abroad

C-383/10, [2013] EUECJ C-383/10
Bailii

European, Banking

Updated: 12 November 2021; Ref: scu.510327

Tournier v National Provincial and Union Bank of England: CA 1924

The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute but qualified. It is not possible to frame any exhaustive definition of the duty. The most that can be done is to classify the qualification, and to indicate its limits.’ and ‘In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.’
Scrutton LJ said: ‘The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker’s contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customers except in certain circumstances’ and ‘I doubt whether it is sufficient excuse for disclosure, in the absence of the customer’s consent, that it was in the interests of the customer, where the customer can be consulted in reasonable time and his consent or dissent obtained.’
Scrutton LJ did not think that the ‘ancient formula’ set out in Parmiter for defamation was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt.
Atkin LJ said: ‘The facts in this case as to the course of business of this bank do not appear to be in any degree unusual in general banking business. I come to the conclusion that one of the implied terms of the contract is that the bank enter into a qualified obligation with their customer to abstain from disclosing information as to his affairs without his consent.’
and ‘I have already stated the obligation as an obligation not to disclose without the customer’s consent. It is an implied term, and may, therefore, be varied by express agreement. In any case the consent may be express or implied, and to the extent to which it is given the bank will be justified in acting. A common example of such consent would be where a customer gives a banker’s reference. The extent to which he authorises information to be given on such a reference must be a question to be determined on the facts of each case. I do not desire to express any final opinion on the practice of bankers to give one another information as to the affairs of their respective customers, except to say it appears to me that if it is justified it must be upon the basis of an implied consent of the customer.’
As to defamatory meaning, Atkin LJ said: ‘I do not think that it is sufficient direction to a jury on what is meant by ‘defamatory’ to say, without more, that it means: were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers but it is obvious that suggestions might be made very injurious to a man’s character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt – for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of the jury might understand as hatred or contempt.’

Bankes LJ, Atkin LJ, Scrutton LJ
[1924] 1 KB 461, [1923] All ER Rep 550, 130 LT 682
England and Wales
Citing:
Cited – Parmiter v Coupland And Another 1840
In an action for libel, the Judge is not bound to state to the jury, as matter of law, whether the publication complained of be a libel or not ; but the proper course is for him to define what is a libel in point of law, and to leave it to the jury . .

Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Turner v Royal Bank of Scotland Plc CA 24-Mar-1998
The plaintiff complained as to the provision of references by his bank. The bank said he had given an implied permission through the bank which had made the request. Later changes in the bankers code of practice would have required explicit written . .
Cited – Elli Christofi v Barclays Bank Plc PatC 19-Jan-1998
A bank’s duty of confidentiality did not arise as regards information received but already known pursuant to statutory duty. The claimant’s writ and statement of claim were struck out as disclosing no cause of action. As regards the allegation of an . .
Cited – Christofi v Barclays Bank Plc CA 28-Jun-1999
A bank is under no obligation of confidence to its customer so as to prevent it disclosing to another party a fact which was ascertainable from inspection of public registers, namely in this case that a caution against registration having been . .
Cited – Berkoff v Burchill and and Times Newspapers Limited CA 31-Jul-1996
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The defendant denied that the words were defamatory.
Held: It is for the jury to decide in what context the words complained of were used and whether . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
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 . .

Lists of cited by and citing cases may be incomplete.

Banking, Contract, Intellectual Property

Leading Case

Updated: 12 November 2021; Ref: scu.216369

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 is that of debtor and creditor, but it is equally well established that quoad the drawing and payment of the customer’s cheques as against money of the customer’s in the banker’s hands the relation is that of principal and agent. The cheque is an order of the principal’s addressed to the agent to pay out of the principal’s money in the agent’s hands the amount of the cheque to the payee thereof.’

Lord Atkinson
(1926) 43 TLR 124
England and Wales
Cited by:
Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
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 . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Lists of cited by and citing cases may be incomplete.

Banking

Leading Case

Updated: 11 November 2021; Ref: scu.194778

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 breach of the overdraft limits.
Held: The relevant terms were not exempt from assessment under the 1999 Regulations. None of the terms failed as penalties at common law, and nor would the application of the Regulations disapply any protection given by common law. The Regulations should be read in a purposive way, and the exemptions did not save the Banks’ terms from being caught by the Regulations. In declining to provide an overdraft the banks were not providing a service. However: ‘the Banks supply to current account customers services within the meaning of the 1999 Regulations when they pay in accordance with a payment instruction regardless of whether it is a Relevant Instruction and involves the Bank in carrying out additional procedures and when they operate the running account with a debit balance, that is to say, when they allow borrowing on the account, regardless of whether the borrowing is by way of an unarranged overdraft. However, this does not mean that it is irrelevant to the application of Regulation 6(2)(b) that charges are levied for carrying out payment instructions and allowing borrowing only when the instructions are Relevant Instructions and the borrowing is by way of unarranged overdraft.’

Andrew Smith J
[2008] EWHC 875 (Comm), Times 29-Apr-2008, Gazette 08-May-2005, [2008] 2 All ER (Comm) 625
Bailii
Unfair Terms in Consumer Contracts Regulations 1999, Enterprise Act 2002 213(1)
England and Wales
Citing:
Cited – London Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited – 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 . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
Mentioned – 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 – 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 – Bank of New South Wales v Laing 1954
A bank is not under an obligation to lend to a current account customer or to allow him overdraft facilities unless it has agreed to do so. . .
Cited – Easycar (UK) Ltd v Office of Fair Trading ECJ 10-Mar-2005
The claimant was a self drive car hire company taking bookings over the internet. Its terms refused a refund on cancellation save in special circumstances. The OFT said these terms infringed the regulations. The claimant said their contracts were . .
Cited – Rolls Razor Ltd v Cox CA 1967
Winn LJ said: ‘the relationship of banker and customer upon a current account implies from its very nature an intention on the part of both parties that debits and credits arising between them shall be brought into a running account on which by . .
Cited – Bairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
Cited – Emerald Meats (London) Ltd v AIB Group (UK) Plc CA 12-Apr-2002
The claimant appealed a finding that it had not been overcharged interest by the respondent. The account was overdrawn. They claimed that on each occasion when a cheque was paid into the account, the bank had charged a day’s extra interest before . .
Cited – Barclays Bank v WJ Simms and Cooke (Southern) Ltd QBD 1979
The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a . .
Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Cited – Heininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Commission v Netherlands C-144/99 ECJ 10-May-2001
ECJ Failure by a Member State to fulfil its obligations – Directive 93/13/EEC – Unfair terms in consumer contracts – Incomplete transposition of the directive into national law. As to the applicable principles in . .
Cited – Lidl Belgium GmbH and Co KG v Etablissementen Franz Colruyt NV ECJ 19-Sep-2006
ECJ (Approximation of Laws) – Directives 84/450/EEC and 97/55/EC – Misleading advertising – Comparative advertising – Conditions under which comparative advertising is permitted – Comparison of the general level . .
Cited – Baybut v Eccle Riggs Country Park Ltd ChD 2-Nov-2006
The purchaser of a caravan park purported to terminate the 10 year licences under which the owners of the various caravans occupied their respective pitches. The sale agreement of the caravan site had contained a covenant by the purchaser with the . .
Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Dublin Port and Docks Board v Bank of Ireland 22-Jul-1976
(Supreme Court of Ireland) The court discussed a bank’s obligation to process cheques issued by its customers: ‘a banker should pay his customers’ cheques in the order in which they are presented, subject to the interest of the customer being taken . .
Cited – Export Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .
Cited – Joseph Constantine SS Line Ltd v Imperial Smelting Corp Ltd 1942
Before a court, he who asserts something must must prove it: ‘Ei qui affirmat non ei qui negat incumbit probatio’
Lord Wight discussed the question of whether there had been ‘a vital change of the law . . Operating on the circumstances.’ . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
Cited – Skillion pIc v Keltec Industrial Research Ltd 1992
In the context of a covenant in a lease restricting the tenant’s use of the demised premises, it is the landlord who requires and puts forward the clause, and, the landlord will be treated as the proposer and the clause must therefore be construed . .
Cited – Philip Bernstein (Successors) Ltd v Lydiate Textiles Ltd; orse Sterling Industrial Facilities v Lydiate Textiles Ltd CA 26-Jun-1962
Lord Justice Diplock: ‘. . the ordinary rule which the courts apply is that contracts should be enforced, pacta sunt servanda, unless they can be brought within that limited category of cases in which, for reasons of public policy, the court refuses . .
Cited – Shamsher Jute Mills Ltd v Sethia (London) Ltd 1987
The plaintiff sold goods to the defendant under the protection of a letter of credit. The plaintiff did not himself provide approriate documentation to claim under the letter of credit, and the banker did not pay.
Held: The plaintiffs were the . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .
Cited – Cofidis SA v Jean-Louis Fredout ECJ 21-Nov-2002
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Action brought by a seller or supplier – National provision prohibiting the national court from finding a term unfair, of its own motion or following . .
Cited – Her Majesty’s Customs and Excise v Gerhart Schindler and Jorg Schindler ECJ 24-Mar-1994
Europa The importation of lottery advertisements and tickets into a Member State with a view to the participation by residents of that State in a lottery conducted in another Member State relates to a ‘service’ . .
Cited – Wire TV Limited v Cabletel (UK) Limited CA 30-Jul-1997
When construing an agreement which is not a sham, the court should recognise that the parties might have a choice as to how a contract is structured and pay appropriate respect to the structure adopted by the parties. . .
Cited – Domsalla (T/A Domsalla Building Services) v Dyason TCC 4-May-2007
A consumer has no grounds for complaining about the construction adjudication process per se under the Regulations . .
Cited – Bryen and Langley Ltd v Boston CA 29-Jul-2005
The special facts surrounding the agreement of the standard term at issue were such that the court held that it could not possibly say that there had been a breach of the principle of fair dealing and that rendered it unnecessary for the court to . .
Cited – Lloyds Bank plc v Voller 2002
. .

Cited by:
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
See Also – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal from – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
At First Instance – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 11 November 2021; Ref: scu.267090

Fetch.AI Ltd and Another v Persons Unknown Category A and Others: ComC 15 Jul 2021

Cryptocurrency Action

The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in subsequent unknown transactions. The Court considered the nature in law of such systems, and preliminary injunctive without notice relief.
Held: The orders were made. There were potential causes in action based upon breach of confidence, unjust enrichment and is entitled also to maintain an equitable proprietary claim based upon constructive trust in respect of assets which have been removed from it dishonestly and without its licence or consent. The assets, both the private encryption keys and the cryptocurrency were property. The private keys in their nature attracted protection in the law of confidence.
The issues raised were arguably triable within this jurisdiction

Pelling QC HHJ
[2021] EWHC 2254 (Comm)
Bailii
The Trade Secrets (Enforcement, etc) Regulations 2018, Rome II Convention
England and Wales
Citing:
Cited – Shenzhen Senior Technology Material Co Ltd v Celgard Llc CA 9-Oct-2020
. .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Adopted – Ion Science v Persons Unknown 21-Dec-2020
Butcher J said that the ‘. . lex situs of a cryptoasset is the place where the person or company who owns it is domiciled. . . There is apparently no decided case in relation to the lex situs for a cryptoasset. Nevertheless, I am satisfied that . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – AB Bank Ltd, Off-Shore Banking Unit (Obu) v Abu Dhabi Commercial Bank Pjsc ComC 12-Aug-2016
Application to set aside Norwich Pharmacal Order: ‘The application raises the question whether the court has jurisdiction to permit service out of the jurisdiction of an application for the grant of a Norwich Pharmacal Order.’
Held: An order . .
Cited – Kryiakou v Christie’s QBD 2017
Warby J summarised the five criteria for the grant of a bankers Trust order: there must be good grounds for concluding that the money or assets about which information is sought belonged to the claimant.
whether there is a real prospect that . .
Cited – Ion Science v Persons Unknown 21-Dec-2020
Butcher J said that the ‘. . lex situs of a cryptoasset is the place where the person or company who owns it is domiciled. . . There is apparently no decided case in relation to the lex situs for a cryptoasset. Nevertheless, I am satisfied that . .
Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – Russian Commercial Bank (Cyprus) Ltd v Khoroshilov ComC 12-May-2020
Before an alternative service order can be made, the court must be satisfied that there are special or exceptional circumstances for departing from the machinery which the Convention adopts for its signatory countries. . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking

Updated: 11 November 2021; Ref: scu.667410

Green and Another v The Royal Bank of Scotland Plc: CA 9 Oct 2013

The claimants appealed against a claim that they had been mis-sold interest rate swap arrangements by their bankers, thereby suffering losses.

Richards, Hellett, Tomlinson LJJ
[2013] EWCA Civ 1197
Bailii
Financial Services and Markets Act 2000 150
England and Wales
Citing:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Loosemore v Financial Concepts 2001
The skill and care to be expected of a financial advisor would ordinarily include compliance with the rules of the relevant regulator. . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 11 November 2021; Ref: scu.516319

HSBC Bank Plc v Brophy: CA 2 Feb 2011

The customer appealed against an order finding that his credit card agreement was binding upon him.
Held: The appeal failed. His argument that the application form amounted only to an invitation to treat, and that the contract was one made by conduct only and therefore not compliant with the 1974 Act, failed. The form was an application for credit: ‘By signing the application form and returning it to the Bank Mr. Brophy applied for credit and offered to be bound by the terms and conditions set out in the form. The form itself made it clear that it contained a request for credit and that the applicant should not sign it unless he was willing to be bound. It cannot therefore be regarded as a mere invitation to treat on his part which might lead the Bank to make him a formal offer of credit. Nor, on the other hand, did it contain an agreement of any kind unless and until it was countersigned by the Bank. The Bank accepted Mr. Brophy’s offer by counter-signing the form, at which point there came into being an executed agreement within the meaning of section 61 of the Act.’ Similarly, applying Hurstanger, the document contained the information required.

Sedley, Moore-Bick, Sullivan LJJ
[2011] EWCA Civ 67, [2011] Bus LR 1004, [2011] ECC 14
Bailii
Consumer Credit Act 1974 61
England and Wales
Citing:
Cited – Hurstanger Ltd v Wilson 2006
(Coventry County Court) Michael Douglas discussed the 1983 Regulations, saying: ‘The 1983 Regulations prescribe, among other things, the minimum contents of a regulated agreement, the information which must be brought to the attention of the . .
Cited – Wilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Appeal from – Brophy v HFC Bank QBD 22-Mar-2010
The customer sought to appeal against a finding of liability for the debt on his credit card, and that the credit card agreement which operated between Mr Brophy and the bank for a period of some 14 years, from 1994 to 2008, was a valid and . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Leading Case

Updated: 11 November 2021; Ref: scu.428529

Barclays Bank v WJ Simms and Cooke (Southern) Ltd: QBD 1979

The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a banker’s obligations to its customers.
Robert Goff J set out the defences to a claim in restitution: ‘(1) If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. (2) His claim may however fail if (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or (b) the payment is made for good consideration, in particular if the money is paid to discharge and does discharge a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt; or (c) the payee has changed his position in good faith or is deemed in law to have done so.’
‘It is a basic obligation owed by a bank to its customers that it will honour on presentation cheques drawn by the customer on the bank, provided that there are sufficient funds in the customer’s account to meet the cheque, or the bank has agreed to provide the customer with overdraft facilities sufficient to meet the cheque. Where the bank honours such a cheque, it acts within its mandate, with the result that the bank is entitled to debit the customer’s account with the amount of the cheque, and further that the bank’s payment is effective to discharge the obligation of the customer to the payee on the cheque, because the bank has paid the cheque with the authority of the customer.
In other circumstances, the bank is under no obligation to honour its customer’s cheques. If however a customer draws a cheque on the bank without funds in his account or agreed overdraft facilities sufficient to meet it, the cheque on presentation constitutes a request to the bank to provide overdraft facilities sufficient to meet the cheque. The bank has an option whether or not to comply with that request. If it declines to do so, it acts entirely within its rights and no legal consequences follow as between the bank and its customer. If however the bank pays the cheque, it accepts the request and the payment has the same legal consequences as if the payment had been made pursuant to previously agreed overdraft facilities; the payment is made within the bank’s mandate, and in particular the bank is entitled to debit the customer’s account, and the bank’s payment discharges the customer’s obligation to the payee on the cheque.
In other cases, however, a bank which pays a cheque drawn or purported to be drawn by its customer pays without mandate. A bank does so if, for example, it overlooks or ignores notice of its customer’s death, or if it pays a cheque bearing the forged signature of its customer as drawer, but, more important for present purposes, a bank will pay without mandate if it overlooks or ignores notice of countermand of the customer who has drawn the cheque. In such cases the bank, if it pays the cheque, pays without mandate from its customer; and unless the customer is able to and does ratify the payment, the bank cannot debit the customer’s account, nor will its payment be effective to discharge the obligation (if any) of the customer on the cheque, because the bank had no authority to discharge such obligation.
It is against the background of these principles, which were not in dispute before me, that I have to consider the position of a bank which pays a cheque under a mistake of fact. In such a case, the crucial question is, in my judgment, whether the payment was with or without mandate. The two typical situations, which exemplify payment with or without mandate, arise first where the bank pays in the mistaken belief that there are sufficient funds or overdraft facilities to meet the cheque, and second where the bank overlooks notice of countermand given by the customer. In each case there is a mistake by the bank which causes the bank to make the payment. But in the first case, the effect of the bank’s payment is to accept the customer’s request for overdraft facilities; the payment is therefore within the bank’s mandate, with the result that not only is the bank entitled to have recourse to its customer, but the customer’s obligation to the payee is discharged. It follows that the payee has given consideration for the payment; with the consequence that, although the payment has been caused by the bank’s mistake, the money is irrecoverable from the payee unless the transaction of payment is itself set aside. Although the bank is unable to recover the money, it has a right of recourse to its customer. In the second case, however, the bank’s payment is without mandate. The bank has no recourse to its customer; and the debt of the customer to the payee on the cheque is not discharged. Prima facie, the bank is entitled to recover the money from the payee, unless the payee has changed his position in good faith, or is deemed in law to have done so.’

Robert Goff J
[1979] 3 All ER 522, [1980] QB 677
England and Wales
Cited by:
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
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 . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Marine Trade Sa v Pioneer Freight Futures Co Ltd Bvi and Another ComC 29-Oct-2009
The parties stood to make substantial losses against each other under contracts for differences after the dramatic fall in the freight market in the financial turmoil of late 2008. . .

Lists of cited by and citing cases may be incomplete.

Banking, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.194776

A and Others v Minister van Buitenlandse Zaken: ECJ 14 Mar 2017

Account freezing was act of State, not EU

ECJ (Area of Freedom, Security and Justice Area of Freedom, Security and Justice External Relations : Common Foreign and Security Policy Fundamental Rights : Charter of Fundamental Rights – Judgment)Reference for a preliminary ruling – Common Foreign and Security Policy (CFSP) – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Common Position 2001/931/CFSP – Framework Decision 2002/475/JHA – Regulation (EC) No 2580/2001 – Article 2(3) – Inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list of persons, groups and entities involved in terrorist acts – Question referred for a preliminary ruling concerning the validity of that inclusion – Compliance with international humanitarian law – Concept of ‘terrorist act’ – Actions by armed forces during periods of armed conflict

K. Lenaerts, P
ECLI:EU:C:2017:202, [2017] EUECJ C-158/14, [2017] WLR(D) 180
Bailii, WLRD
European

Human Rights, Crime, Banking

Updated: 11 November 2021; Ref: scu.580690

Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3): HL 22 Mar 2001

Misfeasance in Public Office – Recklessness

The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also where he acted with knowledge of, or with reckless indifference to the illegality of the act, or with reckless indifference to the probability of causing harm. The directive placed general duties of supervision on the Bank of England, but imposed sufficiently detailed duties to give rise to private rights.
As to the Rules, the difference between the words of rule 24.2 and rule 3.4(2)(a) (between a test which asks the question ‘is the claim bound to fail?’ and one which asks ‘does the claim have a real prospect of success’) is elusive, but the practical effect of the two rules will often be the same and, in more complex cases, attention to the overriding objective of dealing with the case justly is likely to be more important than a search for their precise meaning: ‘For the reasons which I have just given, I think that the question is whether the [defence] has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is – what is to be the scope of that inquiry?’
‘The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. These must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.’
Lord Hope said: ‘Conversely, I consider that if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike out other parts of it. A great deal of time and money has now been expended in the examination of the preliminary issues, and I think that this exercise must now be brought to an end. I would reject the Bank’s application for summary judgment.’
Lord Hobhouse considered the need for a judge always to assess the claimant’s prospect of success: ‘The important words are ‘no real prospect of succeeding’. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a ‘discretionary’ power, i.e. one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is ‘no real prospect’, he may decide the case accordingly. . . Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.’

Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
Times 23-Mar-2001, [2001] 2 All ER 513, [2001] UKHL 16, [2000] 2 WLR 1220, [2003] 2 AC 1, [2001] Lloyds Rep Bank 125, (2001) 3 LGLR 36
House of Lords, Bailii, House of Lords
Civil Procedure Rules
England and Wales
Citing:
Cited – Ashby v White KBD 1703
Mr Ashby a burgess of the borough of Aylesbury was deprived of his right to vote by the misfeasance of a returning officer.
Held: The majority rejected the claim.
Lord Holt CJ (dissenting) An action would lie: ‘If the plaintiff has a . .
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 . .

Cited by:
Cited – Brown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
Cited – WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
Cited – Campbell v Frisbee ChD 14-Mar-2002
The defendant appealed a summary judgement on the claimant’s claim with respect to her alleged disclosure of details Miss Campbell’s private life. The claimant sought an action for account of profits for breach of the terms of a contract of service. . .
Cited – Cornelius v Hackney London Borough Council CA 25-Jul-2002
The applicant sought damages from the council for misfeasance in public office. Protracted litigation had followed his dismissal after he had attempted to bring allegations of misconduct within the authority to the attention of a council committee. . .
Cited – Lord Ashcroft v Attorney General and Department for International Development QBD 31-May-2002
The claimant was the subject of confidential reports prepared by the defendants which were leaked to newspapers causing him damage. He sought leave to amend his claim to add claims for breach of the Data Protection Act and for public misfeasance. . .
Cited – Akenzua, Coy (Administrators of the Estate of Marcia Zena Laws (Deceased)) v Secretary of State for the Home Department, the Comissioner of Police for the Metropolis CA 23-Oct-2002
The claimant sought damages for misfeasance in public office. The defendant had been involved in the release of a person known to be violent from custody, and where he had subsequently killed a member of the claimant’s family. The family appealed a . .
Cited – R Cruickshank Limited v The Chief Constable of Kent County Constabulary CA 13-Dec-2002
The claimant had sought damages from the defendant for unlawful interference with contractual relations, and for misfeasance in public office. It now appealed against an order striking out its claim. It claimed that the police had unlawfully abused . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Keegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Equitable Life Assurance Society v Bowley and others ComC 17-Oct-2003
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Chagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
Cited – Watkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
Cited – Celador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Cited – Armstrong v Times Newspapers Ltd and David Walsh, Alan English CA 29-Jul-2005
The claimant sought damages after publication by the first defendant of articles which it was claimed implied that he had taken drugs. The paper claimed qualified privilege, and claimed Reynolds immunity.
Held: The defence of qualified . .
Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Cited – Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Cited – Ansar v Lloyds TSB Bank Plc and others CA 9-Oct-2006
The claimant challenged a decision of the chairman of the Employment tribunal not to recuse himself on a later hearing after the claimant had previously made allegations of bias and improper conduct against him. . .
Cited – Hilda Amoo-Gottfried v Legal Aid Board (No 1 Regional Committee) CA 1-Dec-2000
The claimant appealed an order dismissing her claim for misfeasance in public office by the defendant, for the way in which they had mishandled her membership of duty solicitor rota schemes.
Held: The court discussed the requirements for . .
Cited – Walsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
Cited – Bray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Alexander-David v London Borough of Hammersmith and Fulham CA 1-Apr-2009
The authority was required to provide housing to the minor applicant, but she was too young to hold a legal estate. An equitable lease had been created, and she now appealed against an order for possession having broken the terms of the agreement, . .
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – Mexfield Housing Co-Operative Ltd v Berrisford ChD 5-Oct-2009
The claimant appealed against refusal of a summary order for possession of the defendant tenant’s house for arrears of rent. The arrears arose through delay in payment of Housing Benefit, and all arrears had been cleared by the hearing of the . .
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Cited – Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – JO1 v Garret and Another QBD 31-Mar-2010
The claimant sought damages against a social worker, alleging misfeasance in public office, and now appealed against a strike out of his claim.
Held: The elements necessary to succeed in such a claim were not made out in the pleadings, and . .
Cited – Kaschke v Gray and Another QBD 29-Mar-2010
kaschke_grayQBD10
The defendant appealed against the refusal of the Master to strike out the claim in defamation in respect of a post by a third party on his unmoderated blog. The claimant said that the article accused her of an historic association with a terrorist . .
Cited – Abbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Cited – Seray-Wurie v The Charity Commission of England and Wales CA 3-Feb-2009
The claimant appealed against the striking out of his claim for defamation in a reort prepared by the defendants criticising his actions as chairman of a CAB. The action had been struck out on the basis of qualified privilege, and the claimant’s . .
Cited – Calland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Cited – Ali v Associated Newspapers Ltd QBD 27-Jan-2010
The claimant sought damages in defamation, saying that a combination of publications identified him.
Held: Eady J briefly discussed the effect of hyperlinks in the context of a dispute about meaning or reference in a defamation case. . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking, Civil Procedure Rules

Leading Case

Updated: 10 November 2021; Ref: scu.166154

British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another: Admn 20 Apr 2011

The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They objected that the policy statement would require them to act beyond their obligations in law.
Held: The objection failed. The parliamentary background materials did not require restriction of the scope of rules capable of being made by the respondent. The respondent was not limited to making rules with regard to matters which were actionable in themselves. Ouseley J discussed the relationship between the FSA Principles and Rules and said: ‘The Principles are best understood as the ever present substrata to which the specific rules are added. The Principles always have to be complied with. The specific rules do not supplant them and cannot be used to contradict them. They are but specific applications of them to the particular requirements they cover. The general notion that the specific rules can exhaust the application of the Principles is inappropriate. It cannot be an error of law for the Principles to augment specific rules.’
Though a specific provision is capable of carrying an implied exclusion of other general or other specific powers, section 404 did not implicitly exclude what the FSA had done, even though it would have been possible for a scheme to have been set up to achieve much or rather more of the same end, and part of the reason why it was not was the cumbersome nature of the remedy, and the fact that it would not apply to breaches of the Principles.

Ouseley J
[2011] EWHC 999 (Admin), [2011] Bus LR 1531, [2011] ACD 71
Bailii
Financial Services and Markets Act 2000 2 404
England and Wales
Citing:
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
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 – Heather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
Cited – Credit Suisse and Another v Waltham Forest London Borough Council CA 20-May-1996
Parliament had made detailed provision in a number of Acts for the discharge of the housing duties by local authorities. These detailed provisions did not contain a power to give a guarantee in connection with a bank loan to a company which the . .
Cited – Harrison v Black Horse Ltd QBD 1-Dec-2010
The claimant sought damages for breach of the statutory duty in ICOB, and for damages for negligence. The bank faced a claim that it had assumed responsibility to take reasonable care in recommending the policy it did. The bank had relied on the . .
Cited – Heather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
Cited – Baby Products Association and Another, Regina (on the Application of) v Liverpool City Council Admn 23-Nov-1999
The 1987 Act and its Regulations enabled a local authority with proper grounds for suspecting that a safety provision had been contravened in relation to goods, to issue a ‘suspension notice’ prohibiting a person on whom it was served from supplying . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .

Cited by:
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
barnes_blackQBD11
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Financial Services

Updated: 10 November 2021; Ref: scu.434868

Grosvenor Casinos Ltd v National Bank of Abu Dhabi: ComC 17 Mar 2008

Banker’s reference no guarantee

An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where its bankers obtained confirmation of the value of a customer’s cheque from his bankers, and the club would then provide the appropriate credit. They now said that the defendant bankers had given such assurances and were liable as a consequence when their customer’s cheques were not met. They sought to rely on the international system under which banks relied on each others answers to such questions.
Held: The claim failed. The system did not create a private right as between the customer of one bank and the second bank who answered the question. The procedure was almost informal and was not widely recognised in banking law. There was insufficient evidence to establish that the answer given by the defendant’s employee was dishonest, and the claim in deceit failed.

Flaux J
[2008] EWHC 511 (Comm), Times 09-Apr-2008, [2008] 2 All ER (Comm) 112, [2008] 1 CLC 399, [2008] Bus LR D95, [2008] 2 Lloyd’s Rep 1
Bailii
Gaming Act 1968 16(1)
England and Wales
Citing:
See Also – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 14-Nov-2007
. .
Cited – Crockfords Club Ltd v Mehta CA 8-Jan-1992
The Defendant had gambled at the plaintiff’s casino, using cheques drawn on a company to obtain chips, all of which he lost. The cheques not having been honoured, Crockfords sued the Defendant for repayment of the loan made to him on the issue of . .
Cited – Derry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .
Cited – Uzinterimpex JSC v Standard Bank Plc ComC 15-May-2007
The court considered the liability of a bank under its guarantee of a transaction. The court set out the elements of the tort of deceit: (a) The defendant must have made a representation which can be clearly identified.
(b) It must be a . .
Cited – AIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
Cited – Angus v Clifford 1891
The court considered what would be required to be shown for proof of fraud where recklessness was relied on: ‘Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity of which consists in a . .
Cited – Angus v Clifford 1891
The court considered what would be required to be shown for proof of fraud where recklessness was relied on: ‘Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity of which consists in a . .
Cited – Calico Printers Association v Barclays Bank Limited 1931
There is no privity of contract between the payee/customer of a remitting bank and the collecting bank arising from the processing of a cheque. Wright J said: ‘To create privity it must be established not only that the principal contemplated that a . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Komercni Banka, A S v Stone and Rolls Ltd and Another ComC 15-Nov-2002
Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 10 November 2021; Ref: scu.266202

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 the shares, the figure was 20% and soon to be reduced to 15%. It said that it should have been given an opportunity to make representations before the order was made, that the order had been made without fulfilling the require,ents and that it breached its human rights.
Held: The claim failed. The objective of the Order might not be met if by being forewarned, a subject might take steps to evade its effect. Section 63 provides a means by which the bank is afforded a reasonable opportunity of effectively challenging the measures contained in the Order.
Whilst Article 6 applied to the proceedings, it could could not apply before any proceedings commenced (Micallef). In the alternative, a hybrid procedure involving executive decision making can be compatible with Article 6(1), and the procedure for determining the bank’s civil rights in this case is hybrid: an executive decision affirmed by Parliament, subject to later challenge before a Court.
As to the substantial objection, the test was as to whether the respondent reasonably believed that Iran is developing Nuclear Weapons, and that such a development threatened the national interests of the UK. In this case: ‘the objective of the Order – to inhibit the development of nuclear weapons by Iran – is sufficiently important to justify interfering with property rights. The measure – excluding the bank from the financial sector in the United Kingdom – is rationally connected to it. To produce or facilitate the production of nuclear weapons, Iran needs to import uranium, centrifuges and, no doubt, a host of other materials, from abroad. To do so, it must pay for them. To pay for them, it will require, or at least find convenient, to use banking facilities, in particular the issuing and confirmation of letters of credit. An Iranian importer of such material is likely to turn to an Iranian bank with an international presence, to issue letters of credit. Cutting off one such bank from one of the principal financial markets in which such business may be transacted is clearly rationally connected to the inhibition of the development of nuclear weapons.’
Justice required that in this case, the some at least of the evidence evidence be put before the court and that it had to be dealt with by a Closed Material Procedure. Part of the judgment was handed down as a closed judgment not available publicly or to the bank.

Mitting J
[2010] EWHC 1332 (QB), [2010] WLR (D) 148
Bailii, WLRD
Financial Restrictions (Iran) Order 2009 (SI 2009 No 2725), Counter-Terrorism Act 2008, European Convention on Human Rights 6
England and Wales
Citing:
See Also – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
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 – 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 – 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 – 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 . .
Applied – 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 – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – BX v Secretary of State for The Home Department CA 4-May-2010
The applicant was subject to a non-derogating control order. The court was asked (1) whether a ‘controlled person’ to whom the Secretary of State has given notice of modification under section 7(2)(d) and (8)(c) 2005 Act, may seek to challenge or . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
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 – 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 – Bosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communications and others ECJ 30-Jul-1996
ECJ (Judgment) Article 8 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, which provides that ‘all vessels, freight vehicles, rolling stock . .

Cited by:
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 . .
At first instance – 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 . .
At first instance – 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 . .

Lists of cited by and citing cases may be incomplete.

Banking, International, Human Rights

Updated: 10 November 2021; Ref: scu.416753

Kpohraror v Woolwich Building Society: CA 1996

The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Held: The bank was in breach of contract and in principle liable for injury to the customer’s business reputation if any, where it knew that he was a trader, but not for further business opportunities alleged to have been lost by reason of circumstances of which the bank was unaware on the basis of the limited facts known to it.
In this case, there was nothing to indicate that the cheque, even one drawn in favor of a goods wholesaler, was required for the purposes of international trade and would or might cause the loss of a transaction or a substantial trading profit for the plaintiff. The claim for loss of profits failed. Damages were awarded for the dishonour of the cheque and the ‘discreditable reason given by them for doing so’ and even though the plaintiff was not strictly speaking in business. The damages included a small allowance for loss of reputation in Nigeria.
Evans LJ said: ‘I would prefer to hold that the starting point for any application of Hadley -v- Baxendale is the extent of the shared knowledge of both parties when the contract was made . . When that is established, it may often be the case that the first and the second parts of the rule overlap, or at least that it is unnecessary to draw a clear line of demarcation between them. This seems to me to be consistent with the commonsense approach suggested by Scarman LJ in H. Parsons (Livestock) Limited -v- Uttley Ingham and Co. Limited [1978] QB 791 at 813, and to be applicable here.’
and ‘It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is ‘so obviously injurious to [his] credit’ that he should ‘recover, without allegation of special damage, reasonable compensation for the injury done to his credit’ (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.’

Evans LJ, Waite LJ, Sir John May
[1996] 4 All ER 119
England and Wales
Citing:
Cited – H Parsons (Livestock) Limited v Uttley Ingham and C. Limited CA 1978
The defendants had installed a pig nut hopper for the plaintiffs, but failed to provide adequate ventilation, causing the nuts to go sour, and the pigs to be poisoned.
Held: Remoteness of damage is a question of law. The death of the pigs . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – Bank of New South Wales v Milvain 1884
The farmer customer’s cheque had not been met by the bank, despite his having adequate funds to meet it. The bank appealed against the award of damages to the customer’s reputation.
Held: The customer, as a farmer, was not a trader, and could . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Evans v London and Provincial Bank 1917
Only nominal damages were awarded by a jury for damage to the plaintiff’s reputation after his bank had wrongly failed to pay on his cheque. . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Cited – Gibbons v Westminster Bank Ltd 1939
For a non-trading customer of a bank whose cheque has been wrongfully dishonoured, injury to credit in law must be pleaded and proved as special damages. . .
Cited – Davidson v Barclays Bank Ltd 1940
The Plaintiff, a credit bookmaker successfully sued the Bank in libel. The libel proved was writing the words ‘not sufficient’ on a cheque issued by the Plaintiff when they dishonoured it. He would have had sufficient funds ad the bank followed his . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Bliss v South East Thames Regional Health Authority CA 1985
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain . .
Cited – Rae v Yorkshire Bank plc CA 1987
The court considered the award of damages for the wrongful dishonour of its customer’s cheque. . .
Cited – Joyce v Sengupta and Another CA 31-Jul-1992
The defendant published an article accusing the plaintiff of theft. Not having funds to launch a claim in libel, the plaintiff obtained legal aid to claim in malicious falsehood. She now appealed against a strike out of that claim.
Held: A . .

Cited by:
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Banking

Leading Case

Updated: 10 November 2021; Ref: scu.222086

Lordsvale Finance Plc v Bank of Zambia: QBD 20 Mar 1996

The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of obtaining the deposits required to fund its participation, an agreed margin and an additional unexplained 1%. The customer said that the 1% fee was a penalty and unenforceable.
Held: It was not.
Colman J said: ‘The defendants contend that, inasmuch as the constituents of the default interest under article 10.03(A) include at (i) 1 per cent, a rate completely unexplained, in addition to the margin (defined in article 1 as 11/2 per cent) and the cost of obtaining dollar deposits to fund the bank’s participation, the 1 per cent is a penalty. It is said to be in terrorem the borrower, its sole function being to ensure compliance with the agreements. . ‘The term provided for a modest increase. It was not a penalty and therefore not invalid.
The court analysed the concept of a penalty as follows (following Dunlop): ‘whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.’
A simple dichotomy between a genuine pre-estimate of damages and a penalty does not always cover all the possibilities.
Although the payment of liquidated damages is ‘the most prevalent purpose’ for which an additional payment on breach might be required under a contract ‘ . . the jurisdiction in relation to penalty clauses is concerned not primarily with the enforcement of inoffensive liquidated damages clauses but rather with protection against the effect of penalty clauses. There would therefore seem to be no reason in principle why a contractual provision the effect of which was to increase the consideration payable under an executory contract upon the happening of a default should be struck down as a penalty if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach.’
He continued: ‘Where, however, the loan agreement provides that the rate of interest will only increase prospectively from the time of default in payment, a rather different picture emerges. The additional amount payable is ex hypothesi directly proportional to the period of time during which the default in payment continues. Moreover, the borrower in default is not the same credit risk as the prospective borrower with whom the loan agreement was first negotiated. Merely for the pre-existing rate of interest to continue to accrue on the outstanding amount of the debt would not reflect the fact that the borrower no longer has a clean record. Given that money is more expensive for a less good credit risk than for a good credit risk, there would in principle seem to be no reason to deduce that a small rateable increase in interest charged prospectively upon default would have the dominant purpose of deterring default. That is not because there is in any real sense a genuine pre-estimate of loss, but because there is a good commercial reason for deducing that deterrence of breach is not the dominant contractual purpose of the term.’

Colman J
Times 08-Apr-1996, [1996] QB 752
England and Wales
Citing:
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .

Cited by:
Approved – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Approved – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
Cited – Euro London Appointments Ltd v Claessens International Ltd CA 6-Apr-2006
The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Cited – Azimut-Benetti Spa (Benetti Division) v Healey ComC 3-Sep-2010
The claimant sought summary judgment under a guarantee. The defendant said that the liquidated damages clause under which the claim was made was a penalty clause and unenforceable.
Held: The request for summary judgment was granted.
Cited – Cleeve Link Ltd v Bryla EAT 8-Oct-2013
EAT Unlawful Deduction From Wages – The principles enunciated in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 1979 and re-stated in Lordsvale Finance PLC v Bank of Zambia [1996] QB 752, . .
Cited – Cavendish Square Holdings Bv and Another v El Makdessi ComC 14-Dec-2012
The parties disputed whether clauses in a share sale agreement between them amounted to a penalty and as such were rendered unenforeable.
Held: Burton J felt able to escape those constraints, and concluded that the two provisions were valid . .
Cited – El Makdessi v Cavendish Square Holdings Bv and Another CA 26-Nov-2013
The appellants had agreed for the sale of his company by way of a share sale agreement. The price to be paid was to vary accoriding to the operating profits. A large part of the price reflected goodwill. The agreement contained a clause providing . .
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Leading Case

Updated: 10 November 2021; Ref: scu.83211

Hamas v Council: ECFI 17 Dec 2014

ECJ Judgment – Common Foreign and Security Policy – Restrictive measures against certain persons and entities in the context of the fight against terrorism – Freezing of funds – Evidence base of freezing funds – Reference to acts of terrorism – need for a competent authority decision within the meaning of Common Position 2001/931 – Obligation to state reasons – Modulation in time the effects of a cancellation

NJ Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges
T-400/10, [2014] EUECJ T-400/10, ECLI: EU: T: 2014: 1095
Bailii
Common Position 2001/931
European

Banking

Updated: 10 November 2021; Ref: scu.540232

McGuinness v Norwich and Peterborough Building Society: CA 9 Nov 2011

The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the basis of a statutory demand without action being taken on the debt first.
Held: The appeal failed. The possible inclusion of a damages liability as the basis of a good petitioning creditor’s debt cannot be based on the extended definition of ‘bankruptcy debt’ in s.382(1) and (4). It has to be found in the practice and decisions of the court as to what constitutes a debt in a liquidated sum for the purposes of a creditor’s petition. A debt for a liquidated sum must be a pre-ascertained liability under the agreement which gives rise to it. That was not the case here, and there was nothing in the wording of the deed to displace the standard result.

Ward, Moses, Patten LJJ
[2011] EWCA Civ 1286, [2012] BPIR 145, [2011] NPC 117
Bailii
Insolvency Act 1986 267 322(a) 382
England and Wales
Citing:
Cited – Hope v Premierpace (Europe) Ltd 1999
A claim for an account and payment was not one for debt which could form the subject of a statutory demand. . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Appeal from – McGuinness v Norwich and Peterborough Building Society ChD 23-Nov-2010
The claimant appealed against his bankruptcy saying that it had followed as statutory demand based upon his alleged default under a guarantee of his brothers mortgage borrowings. He said that such a claim was not a liquidated sum within the 1986 . .
Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
Cited – Utterson v Vernon And Others 5-Feb-1790
There had been an agreement to lend to the bankrupt some stock which she undertook to replace. The act of bankruptcy and the declaration of her bankruptcy took place before the stock was replaced. The parties disputed whether the agreement created a . .
Cited – Ex Parte Job Broadhurst In The Matter Of Job Broadhurst 7-Dec-1852
A covenant given by the father of two existing partners to an incoming partner to pay any shortfall in the debts due to the firm below a stated sum and to bear the debts of the existing partners in excess of a stated sum was treated not as a . .
Cited – Owen v Routh And Ogle CCP 27-Jan-1854
The plaintiff alleged the breach of an undertaking to deliver share certificates on a particular day. The defendants said that bankruptcy discharged them from the obligation. The bankruptcy applied to the defendants’ ‘debts and sums of money due or . .
Cited – In Re Dummelow CA 1872
The parties disputed whether a particular creditor was entitled to vote at the first meeting. The section excluded a right to vote in the case of creditors in respect of ‘any unliquidated or contingent debt, or any debt the value of which is not . .
Cited – Ex parte Ward CA 1882
The court was asked whether a creditor might petition for bankruptcy on a liability as a broker who had failed to settle sums due on purchasing shares on the London Stock Exchange. He was declared a defaulter under the Exchange rules as to . .
Cited – Re Miller CA 1901
A prospective partner in the firm paid andpound;2,000 to a broker on terms that he should have the option of demanding its repayment if he did not become a partner by a date. The firm was hammered before that date and having given notice to . .
Cited – Re a Debtor; ex parte Berkshire Finance Co Ltd QBD 2-Jan-1962
The court was asked to consider whether a judgment debt in respect of sums due under a hire-purchase agreement was a good petitioning creditor’s debt. The judgment sum included the balance of all the remaining hire charges which became payable on . .
Mentioned – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 10 November 2021; Ref: scu.448322

Office of Fair Trading (OFT) v Abbey National Plc and Others: SC 25 Nov 2009

The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could be used neither by the OFT, nor by individual consumers to object to their charges.
Held: The banks’ appeal succeeded. The charging system had to be looked at as a package. An investigation of the charges would relate to the adequacy of the price as against the services supplied, and therefore be incorrect with 6(2)(b). The charges complained of did not relate solely to the immediate tranactions. The two sub-paragraphs of regulation 6(2) must be given their natural meaning, and ‘read in that way they set out tests which are separate but not unconnected. They reflect (but in slightly different ways) the two sides (or quid pro quo) of any consumer contract, that is (a) what it is that the trader is to sell or supply and (b) what it is that the consumer is to pay for what he gets. The definition of the former is not to be reviewed in point of fairness, nor is the ‘adequacy’ (appropriateness) of the latter.’
There was no sufficient point of doubt to require any reference to the European Court.
Lord Walker said: ‘Charges for unauthorised overdrafts are monetary consideration for the package of banking services supplied to personal current account customers. They are an important part of the banks’ charging structure, amounting to over 30 per cent of their revenue stream from all personal current account customers. The facts that the charges are contingent, and that the majority of customers do not incur them, are irrelevant. On the view that I take of the construction of Regulation 6(2), the fairness of the charges would be exempt from review in point of appropriateness under Regulation 6(2)(b) even if fewer customers paid them, and they formed a smaller part of the banks’ revenue stream. ‘
Lord Mance said: ‘Article 4(2) and regulation 6(2) are as exceptions to be construed narrowly. Nevertheless, the concepts of ‘price or remuneration’ must, I think, be capable in principle of covering, under a banking contract, an agreement to make a payment in a particular event. The language of regulation 6(2)(b) is on its face therefore capable of covering a customer’s commitment, under the package contracts put before the House, to pay the Relevant Charges in the specified events. There is no reason why a customer should not be given free services in some circumstances, but, as a quid pro quo, be expected to pay for them in others.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Mance, Lord Neuberger
[2009] UKSC 6, Times 26-Nov-2009, [2009] 3 WLR 1215
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) 6(2), Council Directive 93/13/EEC on unfair terms in consumer contracts
England and Wales
Citing:
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
At First Instance – 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 . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal from – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
Cited – Chichester Diocesan Board of Finance v Simpson HL 21-Jun-1944
The court was asked whether a gift in a will to the trustees ‘for such charitable institution or institutions or other charitable or benevolent object or objects in England’ as they should select, was valid.
Held: ‘The fundamental principle is . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
Cited – Bairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
Cited – The Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
Cited – College of Estate Management v Customs and Excise HL 20-Oct-2005
The college supplied educational services by distance learning. The commissioner sought to argue that printe daterials supplied with the course were ancillary and did not have the same exemption form VAT.
Held: The supplies did benefit from . .
Cited – Freiburger Kommunalbauten GmbH Baugesellschaft and Co. KG v Ludger Hofstetter, Ulrike Hofstetter ECJ 1-Apr-2004
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Contract for the building and supply of a parking space – Reversal of the order of performance of contractual obligations provided for under national . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .

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

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, European

Updated: 10 November 2021; Ref: scu.381455

UMBS Online, Regina (on the Application Of) v Serious Organised Crime Agency: CA 21 Mar 2007

Application for leave to appeal against refusal of leave to bring judicial review of a decision of the respondent agency. Leave to appeal was granted, but the matter was returned to the administrative court for review.

Ward LJ, Sedley LJ, Hooper LJ
[2007] EWCA Civ 375, [2008] 1 All ER 465
Bailii
Proceeds of Crime Act 2002
England and Wales
Citing:
Appeal from – Regina (ex parte UMBS Online Ltd) v Serious Organised Crime Agency Admn 2007
The customers bank accounts had been frozen at the request of the respondent agency after the bank had reported what it thought was suspicious activity to the Agency. It sought judicial review of the agency’s refusal to allow the bank to resume . .
Cited – Squirrell Ltd v National Westminster Bank Plc ChD 22-Apr-2005
The court conisdered the effects of the provisions of the 2002 Act to be to ‘force a party in NatWest’s position to report its suspicions to the relevant authorities and not to move suspect funds or property either for seven working days or, if a . .

Cited by:
See Also – UMBS Online Ltd, Regina (on the Application Of) v Serious Organised Crime Agency and Another CA 2-May-2007
The bank had reported to the respondent its suspicions about funds it held for the claimant. The accounts were frozen, and the customer now sought a judicial review of the refusal of the Agency to reconsider its decision.
Held: The review was . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .

Lists of cited by and citing cases may be incomplete.

Banking, Police

Updated: 09 November 2021; Ref: scu.251612

Paragon Finance plc v Nash etc: CA 15 Oct 2001

The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, included an implied term not to impose an unreasonable or extortionate rate, nor to act for an unreasonable, improper, dishonest, or capricious purpose. When a court looked at the question of whether an arrangement was an extortionate credit bargain, it must look at the situation at the time the bargain is made. Also, the setting of interest rates was not ‘contractual performance’ under the 1977 Act, so as to allow that Act to bite. In this case, the lenders had failed to reduce interest rates in line with other rates generally available. This had however been for proper commercial considerations, and so any implied term did not apply. Unreasonableness in the context connotes conduct or a decision to which no reasonable person having the relevant discretion could have subscribed.

Lord Justice Thorpe, Lord Justice Dyson and Mr Justice Astill
Times 25-Oct-2001, Gazette 15-Nov-2001, [2001] EWCA Civ 1466, [2002] 1 WLR 685
Bailii
Consumer Credit Act 1974 137(2)(b) 138, Unfair Contract Terms Act 1977 3(2)(b)
England and Wales
Citing:
Distinguished – Lombard Tricity Finance Ltd v Paton CA 1989
The borrower challenged a variation of the interest rate to be charged on his regulated loan. The agreement purported to give the lender a full discretion to vary the rate on notice.
Held: The Regulations required the agreement to identify the . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Barclays Bank Ltd v Bird 1954
An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’ . .

Cited by:
Cited – Paragon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
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 – 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 . .
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – British Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Consumer, Banking, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.166707

LCL Le Credit Lyonnais v Fesih Kalhan: ECJ 27 Mar 2014

lcl_kalhanECJ0314

ECJ Consumer protection – Credit agreements for consumers – Directive 2008/48/EC – Articles 8 and 23 – Creditor’s obligation to assess the borrower’s creditworthiness prior to conclusion of the agreement – National provision imposing the obligation to consult a database – Forfeiture of entitlement to contractual interest in the event of failure to comply with that obligation – Effective, proportionate and dissuasive nature of the penalty

L. Bay Larsen, P
C-565/12, [2014] EUECJ C-565/12
Bailii
Directive 2008/48/EC 8 23

European, Banking, Consumer

Updated: 09 November 2021; Ref: scu.523332

American Express (Freedom of Establishment – Opinion): ECJ 6 Jul 2017

Regulation (EU) 2015/751 – Card-based payment transactions – Interchange fees for card-based payment transactions – Four party payment card schemes – Three party payment card schemes – Definition of card issuer – Three party payment card scheme with a co-branding partner – Three party payment card scheme with an agent

C-304/16, [2017] EUECJ C-304/16_O, ECLI:EU:C:2017:524
Bailii
European

Consumer, Banking

Updated: 09 November 2021; Ref: scu.668593

Kolassa v Barclays Bank plc: ECJ 3 Sep 2014

kolassaECJ1409

ECJ (Advocate General’s Opinion) Area of ??Freedom, Security and Justice – Jurisdiction in civil and commercial matters – Contracts concluded by consumers – Consumer domiciled in a Member State, who bought on the secondary market, with an intermediary established in another State Member, securities issued by a bank established in a third Member State – Competence for recourse against the bank issuing such securities

Sczpunar AG
C-375/13, [2014] EUECJ C-375/13 – O, [2015] EUECJ C-375/13
Bailii, Bailii

European, Consumer, Banking

Updated: 09 November 2021; Ref: scu.536451

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 authorise the selling, factoring or discounting . . of its book debts or other negotiable instruments’
Held: Whilst purporting to create a fixed charge over present and future book debts and imposing restrictions on the sale, factoring or discounting of book debts, the debenture did not require the chargor to pay them into an account with the chargee. Reference to a ‘first specific charge’ over book debts had to yield to the only conclusion from the rights in fact granted that the charge over book debts was a floating charge only.
Hoffmann J said: ‘But a floating charge is consistent with some restriction upon the company’s freedom to deal with its assets. For example, floating charges commonly contain a prohibition upon the creation of other charges ranking prior to or pari passu with the floating charge. Such dealings would otherwise be open to a company in the ordinary course of its business.’ and
‘I do not think that the bank balance falls within the term ‘book debts or other debts’ as it is used in the debenture. It is true that the relationship between banker and customer is one of debtor and creditor. It would not therefore be legally inaccurate to describe a credit balance with a banker as a debt. But this would not be a natural usage for a businessman or accountant. He would ordinarily describe it as ‘cash at bank’: compare the balance sheet formats in Part I, section B of Schedule 4 to the Companies Act 1985′ and ‘In this debenture, the significant feature is that Brightlife was free to collect its debts and pay the proceeds into its bank account. Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge.’
The significant feature of the Brightlife debenture was that the company was free to collect its debts and pay the proceeds into its bank account: ‘Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge.’
The company had given a charge over its book debts to te bank. The bank asserted that it was a first specific charge and purported to restrict the company’s right to factor its debts without the bank’s consent. A debenture holder then gave notice to fix the charge, but only a week before a voluntary winding up resolution.
Held: The charge on the book debts was a floating charge, and having crystallised a week before, it had priority over the other debts.
Although clause 3(A)(ii)(a) referred to a ‘first specific charge’ over book debts and others, ‘the rights over the debts created by the debenture were in my judgment such as to be categorised in law as a floating charge.’ . . And a ‘significant feature is that Brightlife was free to collect its debts and pay the proceeds into its bank account. Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge . . I do not think that it is open to the courts to restrict the contractual freedom of parties to a floating charge on such grounds. The floating charge was invented by Victorian lawyers to enable manufacturing and trading companies to raise loan capital on debentures . . without inhibiting its ability to trade. . The public interest requires a balancing of the advantages to the economy of facilitating the borrowing of money against the possibility of injustice to unsecured creditors . . arguments for and against the floating charge are matters for Parliament rather than the courts.’

Hoffmann J
[1987] 1 Ch 200, [1988] VLY 306
England and Wales
Citing:
Distinguished – 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 . .
Distinguished – 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:
Applied – 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 – 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 . .
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 . .
Applied – Re: New Bullas Trading Ltd ChD 5-Apr-1993
A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge. . .
Cited – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
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. . .
Cited – In Re Westmaze Ltd (In Administrative Receivership) ChD 15-May-1998
Westmaze were mechanical engineers. They gave a charge to secure borrowings, which described itself as a fixed charge.
Held: A Charge over a company’s book and trading assets was in fact floating even though described as a fixed charge unless . .

Lists of cited by and citing cases may be incomplete.

Banking, Company, Insolvency

Leading Case

Updated: 09 November 2021; Ref: scu.181234

Barclay’s Bank Plc v Varenka Goff: CA 3 May 2001

The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its security, and she claimed it was signed under undue influence, of which the bank was fixed with constructive notice. The bank appealed successfully against the order setting aside the charge. Although the bank were fixed with constructive notice of the undue influence, the employment of the independent solicitor was sufficient to discharge that constructive notice. That was only disapplied where no competent solicitor could have advised the wife to enter into the transaction, and that did not apply in this case.

Lord Justice Pill, Lord Justice Mantell, and Lord Justice Buxton
Gazette 17-May-2001, [2001] EWCA Civ 635, [2001] Lloyds Rep Bank 189, [2001] NPC 88, [2001] 2 All ER (Comm) 847
Bailii
England and Wales
Citing:
Disapproved in part (at 705) – Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
Cited – Midland Bank Plc v Kidwai and Another CA 5-Jun-1995
A bank was not under a full duty to advise a wife of a business client of the risks of signing a charge. The bank was not giving independent advice. . .
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking, Legal Professions

Updated: 09 November 2021; Ref: scu.147528

Catlin v Cyprus Finance Corporation (London) Ltd: 1983

As between a banker and joint account holders, the banker has a duty of care to the account holders and each of them separately.

[1983] QB 759
England and Wales
Cited by:
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .

Lists of cited by and citing cases may be incomplete.

Banking

Updated: 09 November 2021; Ref: scu.194779

Wilson v United Counties Bank Ltd: HL 1920

Bank’s duty to client’s reputation and credit

Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business affairs and to take reasonable steps to maintain his credit and reputation. Major Wilson was made bankrupt and he and his trustee in bankruptcy joined in an action against the bank. The jury awarded damages of about andpound;45,000 for depreciation in the bankrupt’s business and estate caused by the bank’s negligence (although the House was not unanimous as to whether this finding was justified on the evidence) and andpound;7,500 for damage to his credit and reputation.
Held: The former sum was recoverable by the trustee in bankruptcy, and the latter by the bankrupt personally, even though the damages arose from the same breach of contract.
Lord Birkenhead applied Rolin, saying: ‘The defendants undertook for consideration to sustain the credit of the trading customer. On principle the case seems to me to belong to that very special class of cases in which a banker, though his customer’s account is in funds, nevertheless dishonours his cheque. The ratio decidendi in such cases, is so obviously injurious to the credit of the trader that the latter can recover, without allegation of special damage, reasonable compensation for the injury due to his credit.’
Lord Atkinson said: ‘If one man inflicts an injury upon another the resort by the sufferer to reasonable expedients for the bona fide purpose of counteracting, curing or lessening the evil effects of the injury done him, does not necessarily absolve the wrongdoer, even though the sufferer’s efforts should, in the result, undesignedly aggravate the result of injury.’

Lord Atkinson, Lord Birkenhead LC
[1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102
England and Wales
Citing:
Cited – Beckham v Drake HL 11-Jul-1849
Non-property assets do not pass on bankruptcy
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this . .
Followed – Rolin And Another v Steward, Public Officer of The East of England Bank 8-May-1854
Substantial damages may be recovered against a banker, for dishonouring an acceptance and cheques of a customer, there being sufficient assets in his hands at the time to meet them. . .

Cited by:
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Cited – Kpohraror v Woolwich Building Society CA 10-Jan-1996
The defendants had wrongfully refused payment of the claimant’s cheque for pounds 4,550. The error was realised on the same day, and corrected. The master awarded damages of pounds 5,550 as general damages to the claimant’s credit by reason of the . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Insolvency, Damages, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.185413

Edward Owen Engineering Ltd v Barclays Bank International Ltd: CA 1978

Performance guarantees are effectively obligations to pay on demand within the terms of the guarantee, irrespective of the rights and wrongs of any dispute between beneficiary and principal under the terms of their separate contract, subject only to fraud.
Lord Denning said: ‘It has been long established that when a letter of credit is issued and confirmed by a bank, the bank must pay it if the documents are in order and the terms of the credit are satisfied. Any dispute between buyer and seller must be settled between themselves. The bank must honor the credit . . To this general principle there is an exception in the case of what is called established or obvious fraud to the knowledge of the bank.’
. . and ‘So, as one takes instance after instance, these performance guarantees are virtually promissory notes payable on demand. So long as the Libyan customers make an honest demand, the banks are bound to pay and the banks will rarely, if ever, be in a position to know whether the demand is honest or not. At any rate they will not be able to prove it to be dishonest. So they will have to pay.
All this leads to the conclusion that the performance guarantee stands on a similar footing to a letter of credit. A bank which gives a performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the supplier has performed his contracted obligation or not; nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee, on demand, if so stipulated, without proof or conditions. The only exception is when there is a clear fraud of which the bank has notice.’

Lord Denning MR
[1978] 1 All ER 976, [1978] 1 QB 159, [1977] 3 WLR 764, [1978] 1 Lloyds Rep 166
England and Wales
Citing:
Approved – R D Harbottle (Mercantile) Limited v National Westminster Bank Limited 1978
The plaintiffs had entered into contracts of sale with Egyptian buyers. Each contract provided that the plaintiffs would establish a guarantee confirmed by a bank in favour of the buyers. The guarantees were widely expressed, and secured payment on . .

Cited by:
Cited – Manx Electricity Authority v J P Morgan Chase Bank CA 3-Oct-2003
The claimant sought to appeal an order striking out its claim against the defendant under a performance bond. The defendant denied that the demand was valid, saying it did not allege a current breach of the contract.
Held: The point upon which . .
Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .

Lists of cited by and citing cases may be incomplete.

Banking

Leading Case

Updated: 02 November 2021; Ref: scu.186574

Shah and Another v HSBC Private Bank (UK) Ltd: CA 4 Feb 2010

Money laundering suspicion to be explained

The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused to explain why it had made the report.
Held: The appeal succeeded. The relevant suspicion need not be based on reasonable grounds. However the court could see no reason why the bank should not be put to its proof of having a relevant suspicion, and summary judgement was not appropriate. It is for the bank to prove that it suspected their customer to be involved in money-laundering.

Ward, Longmore, Lloyd LJJ
[2010] EWCA Civ 31, Times 01-Apr-2010, [2010] 3 All ER 477, [2010] Bus LR 1514, [2011] 1 All ER (Comm) 67, [2010] Lloyd’s Rep FC 276
Bailii
Proceeds of Crime Act 2002 335
England and Wales
Citing:
Cited – UMBS Online Ltd, Regina (on the Application Of) v Serious Organised Crime Agency and Another CA 2-May-2007
The bank had reported to the respondent its suspicions about funds it held for the claimant. The accounts were frozen, and the customer now sought a judicial review of the refusal of the Agency to reconsider its decision.
Held: The review was . .
Cited – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Appeal from – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .

Cited by:
Main Judgment – Shah and Another v HSBC Private Bank (UK) Ltd (Costs) CA 4-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Banking, Crime, Litigation Practice

Updated: 02 November 2021; Ref: scu.396603

Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another: ChD 11 Feb 2013

The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the defendant’s manager had not been dishonest, had made no misrepresentation, and had not been part of any conspiracy, and the bank had enjoyed no unjust enrichment.

Sales J
[2013] EWHC 208 (Ch)
Bailii
England and Wales
Citing:
Cited – Tournier v National Provincial and Union Bank of England CA 1924
The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 28-Apr-2004
Niru contracted to buy lead from Milestone, to be paid for in a letter of credit, against certifying documents produced for the purpose. Mr Mahdavi, the individual behind Milestone, procured CAI to finance the acquisition of warrants to be retained . .
Cited – Compangnie Commerciale Andre S A v Artibell Shipping Co Ltd and the Governor and Company of the Bank of Scotland SCS 21-Feb-2001
. .
Cited – Aerostar Maintenance International Ltd and Another v Wilson and Others ChD 30-Jul-2010
The claimant sought damages alleging the defendant’s failures breach of fiduciary duty as director.
Held: In a claim of dishonest assistance in a breach of duty some dishonesty on the part f the defendant is a part of the claim. . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Box and Others v Barclays Bank Plc ChD 30-Apr-1998
A depositor who had placed sums with an illegal deposit taking business was not entitled to claim that sum held in trust because he still had a statutory claim under contract with the deposit taker. . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – James McNaughton Paper Group Ltd v Hicks Anderson and Co CA 31-Jul-1990
When considering the liability of an auditor in negligence, the fact and nature of any communications direct between the auditor and the potential investor must be allowed for. The court set out a non-exhaustive list of factors to be taken into . .
Cited – AbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 02 November 2021; Ref: scu.470887

Sternlight v Barclays Bank Plc: QBD 22 Jul 2010

Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The claimants’ calculations did not apply. The driver of the interest rate was not the statement as to the APR, but the agreement itself. The APR was not a term of the agreement, and a mis-statement of it, if one had occurred, did not make the agreement unenforceable.

Waksman QC J
[2010] EWHC 1865 (QB)
Bailii
Consumer Credit Act 1974 60, Consumer Credit (Agreements) Regulations 1983 Sch 6
England and Wales
Citing:
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – Wilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 02 November 2021; Ref: scu.421269

Duncan Fox and Co v North and South Wales Bank: HL 1880

The case concerned a claim by an indorser of a bill of exchange that he was subrogated to securities provided by the acceptor to the holder of the bill. The court identified three kinds of cases in which rights of subrogation had been recognised and where suretyship principles apply: (1) where there is an agreement creating the relationship of principal and surety to which the creditor is a party; (2) where there is an agreement creating the relationship of principal and surety to which the creditor is not a party; and (3) where there is no agreement but that there is nevertheless a primary and secondary liability of two persons, the debt being ‘as between the two, that of one of those persons only, and not equally of both, so that the other, if he should be compelled to pay it, would be entitled to reimbursement from the person by whom (as between the two) it ought to have been paid’.
Lord Selborne LC did not however restrict the categories of cases in which the remedy of subrogation might be available so much as identify situations that were broadly analogous to those of the case before it.

Lord Selborne LC
(1880) 6 AC 1, [1874-80] All ER Rep Ext 1406
England and Wales

Equity, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.181984

Brazzill and Others v Willoughby and Others: CA 27 May 2010

The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the trust account but not all. The court was asked whether the sum held was for those for whose deposits transfers had actually been made, or for all those for whom transfers should have been made.
Held: The trust account was for all those for whom deposits should have been made under the direction. It operated as a class trust not a client account.

Sedley, Thomas, Lloyd LJJ
[2010] EWCA Civ 561, [2010] WLR (D) 140
Bailii, WLRD
Financial Services and Markets Act 2000 44
England and Wales
Citing:
Explained – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .
See Also – In re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
See Also – Mills and Others v HSBC Trustee (CI) Ltd and Others ChD 18-Dec-2009
. .
Appeal from – Brazzill and Others v Willoughby and Others ChD 10-Jul-2009
. .
Cited – Moriarty and Another v Atkinson and Various Customers of BA Peters Plc CA 16-Dec-2008
The company, a boat sales agent, made a promise to its customers to hold the funds received from them in a trust account. In breach of that promise, it used the funds to pay its own debt. The customers now appealed against a refusal to allow them to . .
Cited – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Cited – Moriarty and others v Various Customers of BA Peters Plc (In Administration) ChD 29-Apr-2008
The company had acted as boat sales and brokerage. Claims were made on its insolvency as to the status of boats sold and unsold, and of deposits paid and held by the company. . .
Cited – Picken v Lord Balfour of Burleigh CA 1945
The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
Held: The rule in Cherry v Boultbee . .
Cited – OT Computers v First National Tricity Finance ChD 2003
. .
Cited – Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .
Cited – In re Akerman ChD 2-Jul-1891
The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich . .
mentioned – Ogilvie v Allen HL 1899
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not . .
Cited – Ogilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
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 – In Re Rhodesia Goldfields Ltd ChD 1910
Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his . .

Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 02 November 2021; Ref: scu.416098

Barclays Bank Plc v Kufner: ComC 10 Oct 2008

barclays_kufnerComC2008

The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish its charge.
Held: The application succeeded. There was no duty in equity on the bank to re-establish the charge, since the agreement allowed it to release the charge. Was the bank a supplier within the 1999 Regulations? Whilst the Regulations might apply to a banking guarantee, the defendant here was not acting as a consumer, and therefore they did not apply to him. Nor could he sustain a defence based on negligent misrepresentation.

Field J
[2008] EWHC 2319 (Comm)
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 4(1)
Citing:
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Skipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
Cited – Bayerische Hypotheken- und Wechselbank v Dietzinger ECJ 17-Mar-1998
The court was asked whether the Directive applied to a bank guarantee given by a natural person who was not acting in the course of a trade or business to secure the overdraft of a third party.
Held: The scope of the Directive is not limited . .
Cited – Bank of Scotland v Singh 17-Jun-2005
. .
Cited – Skipsredittforeningen v Emperor Navigation SA 1997
The court considered the reaonableness of a contract clause which sought to exclude liability for misrepresentation: ‘The consequence of the approach adopted in Stewart Gill [[1992] 1 QB 600] is (as the present case shows) that the court may hear . .
Cited – Standard Bank London Ltd v Apostolakis and Another ComC 9-Feb-2001
Banking and financial services – conflict of laws – contract – anti-suit injunction – unfair contract terms – defendants signed foreign exchange margin trading agreement in greece – proceedings in greece and england – agreement contained english . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – WRM Group Limited (Formerly Known As WRM Logistics Limited) v Wood; Burcher; Wood; Chick and Irving CA 21-Nov-1997
Breach of share sale agreement. . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 02 November 2021; Ref: scu.278851

South Australia Asset Management Corporation v York Montague Ltd etc: HL 24 Jun 1996

Limits of Damages for Negligent Valuations

Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without one of them being negligent. But once the valuer has been found to have been negligent, the loss for which he is responsible is that which has been caused by the valuation being wrong. A negligent valuer is not necessarily liable for the whole of the loss in such circumstances. The correct approach has been held to be to ascertain what element of loss suffered as a result of the transaction was attributable to the inaccuracy of the information supplied by the valuer. For this purpose the valuation negligently provided is to be compared with the figure which a reasonable valuer, using the information available at the relevant time, would have put forward as its most likely open market value. Thus the valuer may escape liability for a subsequent fall in market values. The court discussed the ‘mountaineer’s knee’: ‘A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee . . on what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctors bad advice because it would have occurred if the advice had been correct’.
Lord Hoffmann: ‘Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation . . Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful.’
Lord Hoffmann said: ‘The Court of Appeal (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd and other appeals [1995] 2 All ER 769, [1995] QB 375) decided that in a case in which the lender would not otherwise have lent (which they called a ‘no-transaction’ case), he is entitled to recover the difference between the sum which he lent, together with a reasonable rate of interest, and the net sum which he actually got back. The valuer bears the whole risk of a transaction which, but for his negligence, would not have happened. He is therefore liable for all the loss attributable to a fall in the market. They distinguished what they called a ‘successful transaction’ case, in which the evidence shows that if the lender had been correctly advised, he would still have lent a lesser sum on the same security. In such a case, the lender can recover only the difference between what he has actually lost and what he would have lost if he had lent the lesser amount. Since the fall in the property market is a common element in both the actual and the hypothetical calculations, it does not increase the valuer’s liability.
The valuers appeal. They say that a valuer provides an estimate of the value of the property at the date of the valuation. He does not undertake the role of a prophet. It is unfair that merely because for one reason or other the lender would not otherwise have lent, the valuer should be saddled with the whole risk of the transaction, including a subsequent fall in the value of the property.

Lord Hoffmann, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Nicholls of Birkenhead
Gazette 04-Sep-1996, Times 24-Jun-1996, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] UKHL 10, [1996] 3 WLR 87, [1996] 3 All ER 365, [1996] 2 EGLR 93, 80 BLR 1, [1996] 5 Bank LR 211, [1996] CLC 1179, [1996] 50 Con LR 153
Bailii
England and Wales
Citing:
Appeal from – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Appeal from – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Applied – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – In re the Oropesa CA 1943
Two steam vessels collided. One’s Master sent fifty of his crew in boats to the other ship and about an hour and a half after the collision decided himself to go to that ship and confer with her Master on measures to be taken. He transferred in . .
At first instance – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .
Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .

Cited by:
Cited – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Applied – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Cited – Petersen v Personal Petersen (Deceased), Representative of CA 31-Jan-2002
The claim was against a solicitor for negligence. The claimant had purchased a property in respect of which there was an unsettled dispute, He claimed that the solicitor had accepted a condition under which he accepted a proportion of the liability . .
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Affirmed – 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 – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – McLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002
In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Green and Another v Alexander Johnson (A Firm) and Another ChD 26-May-2004
The judgment related to the assessment of damages for professional negligence by the defendants. The court deprecated the practice of separating off assessments of damages from the principal claim, since this created a risk of confusion. The . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – London General Holdings Ltd and others v USP Plc and Another CA 22-Jul-2005
Copyright was claimed in a draft legal agreement. Infringement was established, but the court was asked to look at the assessment of damages.
Held: ‘what is the basis upon which damages for breach of copyright are awarded? The question cannot . .
Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Phelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
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.
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Cited – Manchester Building Society v Grant Thornton UK Llp ComC 2-May-2018
claim for damages by a building society caused by the admitted negligence of its accountant. . .
Cited – Manchester Building Society v Grant Thornton UK Llp CA 30-Jan-2019
Liability of an auditor for losses incurred on long term interest rate swap agreements which were entered into in reliance upon negligent accounting advice and which were closed out at a loss when the negligent advice came to light. . .
Cited – Manchester Building Society v Grant Thornton UK Llp SC 18-Jun-2021
Was the Court of Appeal was right to hold that the break costs claimed by the Appellant fell outside the scope of the Respondent’s duty of care as professional accountants? . .
Cited – Khan v Meadows SC 18-Jun-2021
‘ A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.89405

Nelson and Others v First Caribbean International Bank (Barbados) Ltd: PC 3 Sep 2014

nelson_FCIBPC1409

(St Lucia) A loan had been secured against land by a hypothec. A landslip damged the charged property, and the borrowers now challenged the lender’s right to pursue them personally.
Held: The apepeal should be dismissed. Reading the hypothecary obligation and facilities letter together, as they must be, the personal obligation accepted was clear. The assertion that eth bank was limited to its hypothecary was erroneous in failing to ‘distinguish between the law of obligations and the law of real rights. This is a fundamental distinction in civilian legal systems. Obligations are a juridical relationship between persons, namely the debtor and the creditor. Real rights are concerned with things, such as an owner’s right to possess a thing which can be asserted against the world.’

Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKPC 30
Bailii

Commonwealth, Banking

Updated: 01 November 2021; Ref: scu.536384

Williams and Glyn’s Bank Ltd v Boland: HL 19 Jun 1980

Wife in Occupation had Overriding Interest

The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding interest.
Held: Her equitable interest was not only a ‘minor interest’ within section 3 (xv) of the Act, but was also protected as an overriding interest because she occupied the land. The House considered the relationship between registered interests on the one hand, and equitable ‘minor interests’ and trusts on the other. Lord Wilberforce said: ‘The system of land registration, as it exists in England, which long antedates the Land Registration Act 1925, is designed to simplify and to cheapen conveyancing. It is intended to replace the often complicated and voluminous title deeds of property by a single land certificate, on the strength of which land can be dealt with. In place of the lengthy and often technical investigation of title to which a purchaser was committed, all he has to do is consult the register; from any burden not entered on the register, with one exception, overriding interests, he takes free. Above all, the system is designed to free the purchaser from the hazards of notice – real or constructive – which, in the case of unregistered land, involve him in inquiries, often quite elaborate, failing which he might be bound by equities. The Law of Property Act 1925 contains provisions limiting the effect of the doctrine of notice, but it still remains a potential source of danger to purchasers. By contrast, the only provisions of the Land Registration Act 1925 with regard to notice are provisions which enable a purchaser to take the estate free from equitable interests or equities whether he has notice or not. (See, for example, section 3 (xv) ‘minor interests’). The only kind of notice recognised is by entry on the register.

‘The exception just mentioned consists of ‘overriding interests’ listed in section 70. As to these, all registered land is stated to be deemed to be subject to such of them as may be subsisting in reference to the land, unless the contrary is expressed on the register. The land is so subject regardless of notice actual or constructive. In my opinion therefore, the law as to notice as it may affect purchasers of unregistered land, whether contained in decided cases, or in a statute (the Conveyancing Act 1882, section 3, Law of Property Act, section 199) has no application even by analogy to registered land. Whether a particular right is an overriding interest, and whether it affects a purchaser, is to be decided upon the terms of section 70, and other relevant provisions of the Land Registration Act 1925, and upon nothing else. In relation to rights connected with occupation, it has been said that the purpose and effect of section 70 (1) (g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land.’ The existence of overriding interests within the system of registered conveyancing might be troublesome for purchasers, but ‘What is involved is a departure from an easy-going practice of dispensing with enquiries as to occupation beyond that of the vendor and accepting the risks of doing so. To substitute for this a practice of more careful enquiry as to the fact of occupation, and if necessary, as to the rights of occupiers can not, in my view of the matter, be considered as unacceptable. I adhere to this, but I do not accept the argument which learned counsel for the appellant sought to draw from it. His submission was that, in applying section 70(1)(g), we should have regard to and limit the application of the paragraph in the light of the doctrine of notice. But this would run counter to the whole purpose of the Act. The purpose, in each system, is the same, namely, to safeguard the rights of persons in occupation, but the method used differs. In the case of unregistered land, the purchaser’s obligation depends upon what he has notice of – notice actual or constructive. In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupation has rights, the purchaser takes subject to them. If not, he does not. No further element is material.’
On the plain meaning of the words ‘actual occupation’, what is required is ‘physical presence, not some entitlement at law’ these words are ordinary words of plain English, and should, in my opinion, be interpreted as such’ and ‘the word ‘actual’ merely emphasises that what is required is physical presence, not some entitlement in law’ and ‘undivided shares in land can only take effect in equity, behind a trust for sale upon which the legal owner is to hold the land.’

Lord Wilberforce, Viscount Dilhorne, Lord Salmon and Lord Roskill
[1981] AC 487, [1980] 2 All ER 408, [1980] 3 WLR 138, [1980] UKHL 4
Bailii
Land Registration Act 1925 70(1)
England and Wales
Citing:
Cited – National Provincial Bank Ltd v Hastings Car Mart Ltd CA 1964
The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any . .
Cited – National Provincial Bank Limited v Ainsworth HL 1965
The significance of the distinction between occupation and rights was that although the deserted wife was in actual occupation of the former matrimonial home, the quality of her rights was not such as to be capable of amounting to an overriding . .
Approved – Bridges v Mees ChD 1957
An overriding interest, namely an estate contract, was protected under s. 70(1) of the Act even though it could have been protected by a caution under s. 59. . .
Approved – Hodgson v Marks ChD 1970
The plaintiff, an elderly widow, transferred her house into the name of her lodger, but remained in occupation of the house, on exactly the same basis as before, until the lodger sold the house and the purchaser had mortgaged it to a building . .
Appeal From – Williams and Glyn’s Bank Ltd v Boland CA 1979
Money was raised on mortgage of registered land and paid to a single trustee holding the land on trust for sale, and it was held that the rights of beneficiaries who were in occupation and of whom no enquiries had been made were not mere minor . .
Overruled – Cedar Holdings Ltd v Green CA 1981
A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee . .

Cited by:
Cited – Malory Enterprises Ltd v Cheshire Homes (UK) Ltd and others CA 22-Feb-2002
The applicant said that its land had been misappropriated, and sought rectification of the register against the respondent who was a successor in title having bought the land from the wrongdoer.
Held: On registration, section 69 operated to . .
Distinguished – City of London Building Society v Flegg And Another HL 14-May-1987
A couple bought a property and registered it in their own names with substantial financial assistance from the parents of one of them. The parents occupied the house with them. Without telling the parents, the owners borrowed again, executing . .
Applied – Kingsnorth Finance Co Ltd v Tizard ChD 1986
The marriage between the defendants had broken down, but the wife still visited the house regularly, staying and caring for the children when the husband was away. The house was held in his sole name. He charged it to the plaintiffs, who now sought . .
Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Cited – Dougbar Properties Ltd v Keeper of the Registers of Scotland SCS 9-Feb-1999
Even if there existed an acknowledged error in the Land Registry, rectification was the only available remedy. The existence of an inaccuracy did not alter the legal reality that the registered proprietor had a right created by registration. In . .
Cited – State of India v Sood and Others CA 30-Oct-1996
Beneficial equitable interests in land were overreached by a mortgage despite no the fact that no capital was actually advanced under the charge. . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Halifax Building Society v Campbell-Lebens CA 4-Jun-1998
. .
Cited – Bhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
Cited – Pritchard Englefield v Steinberg and Steinberg ChD 30-Jul-2004
Enforcement of charging order absolute. . .
Cited – National Westminster Bank Plc, Malhan Malhan v Malhan, The Secretary of State for Consitutional Affairs and Lord Chancellor ChD 22-Apr-2004
. .
Cited – Lloyd and others v Dugdale and Another CA 21-Nov-2001
The claimants asserted a right to possession of land, and the defendant resisted, claiming a proprietary estoppel. A predecessor had intended to grant a sub-lease to the defendant, who had arranged for his company JAD Ltd to execute major works on . .
Cited – Link Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.180518

Director General of Fair Trading v First National Bank: HL 25 Oct 2001

The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the Regulations. It was by way of a default condition, rather than a penalty. The provision excluding the award of statutory interest after judgment did not operate to exclude the contractual term, and the inconsistency would not defeat the regulations if such clauses were only allowed to operate if they fell fairly and squarely within the section. The 1999 Regulations set up a ‘a dual system of ex casu challenges and pre-emptive or collective challenges by appropriate bodies’, and ‘The system of preemptive challenges is a more effective way of preventing the continuing use of unfair terms . . than ex casu actions.’
Lord Bingham explained the regulations: ‘A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith. The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty. The illustrative terms set out in Schedule 3 to the Regulations provide very good examples of terms which may be regarded as unfair; whether a given term is or is not to be so regarded depends on whether it causes a significant imbalance in the parties’ rights and obligations under the contract. This involves looking at the contract as a whole. But the imbalance must be to the detriment of the consumer; a significant imbalance to the detriment of the supplier, assumed to be the stronger party, is not a mischief which the Regulations seek to address. The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4 (1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.’

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Millett Lord Rodger of Earlsferry
Times 01-Nov-2001, [2002] 1 AC 481, [2001] UKHL 52, [2001] 3 WLR 1297, [2002] 1 LLR 489, [2001] 2 All ER (Comm) 1000, [2002] 1 All ER 97, [2002] ECC 22, [2002] 1 Lloyd’s Rep 489
House of Lords, Bailii
Unfair Terms in Consumer Contracts Regulations 1994 (1994 No 3159), County Courts (Interest on Judgment Debts) Order 1991 (1991 No 1184), Consumer Credit Act 1974, County Courts Act 1984 71, Council Directive 93/13/EEC (OJ 1993, L95, p 29) on unfair terms in consumer contracts
England and Wales
Citing:
At First Instance – Director General of Fair Trading v First National Bank Plc ChD 30-Jul-1999
The claimants sought an injunction under the regulations to prevent the defendant bank from including in any of its agreements a clause allowing them to claim interest on judgments on regulated agreements. . .
Appeal from – Director General of Fair Trading v First National Bank Plc CA 15-Sep-1999
A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by . .
Cited – In re Sneyd; Ex parte Fewings CA 1883
The mortgagee’s costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the . .
Cited – Economic Life Assurance Society v Usborne HL 1902
If the loan agreement provides that the contract term for payment of interest survives judgment, then the contract term remains enforceable after judgment. Lord Halsbury said: ‘My Lords, it seems to me that Fry LJ in the case of Ex parte Fewings . . . .

Cited by:
Cited – Bankers Insurance Company Limited v South, Gardner QBD 7-Mar-2003
The two defendants had been involved in a jet-ski accident on holiday in Europe. The claimant sought a declaration that it was not liable to indemnify its insured under the holiday insurance under which they travelled. The policy excluded liability . .
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 . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Cited – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
Cited – Office Of Fair Trading v Foxtons Ltd CA 2-Apr-2009
The OFT had sought and obtained an injunction regarding the use of certain standard terms in their estate agency business. Both parties appealed.
Held: The OFT’s appeal succeeded. The court had been wrong to restrict the effect of the . .
Cited – The Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
Cited – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Cited – The Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Rochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .
Cited – Perpetual Trustee Co Ltd v Khoshaba 20-Mar-2006
Austlii (Supreme Court of New South Wales – Court of Appeal) CONTRACTS – Unjust contracts – Determination that a contract ‘unjust’ – Appellate review – Nature of decision appealed from – Conclusion that ‘unjust’ . .
Cited – Du Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
Cited – Chubb and Another v Dean and Another ChD 24-Apr-2013
The court considered whether it had power to award a post judgment interest at a contractual rather than the statutory interest rate.
Held: There is no power of the court in this claim to add any amount beyond the statutory interest to the . .
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.166701

Durkin v DSG Retail Ltd and Another: SC 26 Mar 2014

Cancellation of Hire Finance Contract

The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, which in due course caused the appellant more difficulties. He claimed damages of 250,000 pounds for this damage, alleging negligence. He had succeeded in establishing a right to reject the computer. The bank succeeded on appeal against a finding that it was liable in damages.
Held: The appeal succeeded. Lord Hodge said that the purpose of the restricted-use credit agreement is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose. The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it. It is inherent in a debtor-creditor-supplier agreement under the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction it financed is brought to an end by the supplier’s repudiatory breach of contract, the debtor must repay the borrowed funds recovered from the supplier. In order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition.

Hale, Hodge LL
[2014] 1 WLR 1148, [2014] UKSC 21, [2014] WLR(D) 144, 2014 GWD 12-211, UKSC 2012/0135
Bailii, WLRD, SC Summary, SC
Consumer Credit Act 1974 75(1)
Scotland
Citing:
Appeal from – Durkin (Aberdeen Sheriff Court) v DSG Retail Ltd SCS 15-Jun-2010
The appellant had purchased a computer from an associated company of the defender with finance from the defender. He complained that on his return of the computer the defender had failed to cancel the consumer credit agreement, causing him losses. . .
Cited – United Dominions Trust Ltd v Taylor ScSf 1980
. .
Cited – Krell v Henry CA 1903
A contract to rent rooms for two days and from which the coronation processions of King Edward VII were to be viewed was frustrated when the processions were cancelled on the days the rooms were taken for because the contract was ‘a licence to use . .
Cited – McWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .

Lists of cited by and citing cases may be incomplete.

Consumer, Negligence, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.523194

Tai Hing Ltd v Liu Chong Hing Bank: PC 1985

(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless negligence or other disentitling conduct of the customer precludes the customer’s claim. No wider duty should be imposed on the customer beyond a duty not to act in a way that facilitates forgery and to make the bank aware of any known forgeries occurred: ‘The business of banking is the business not of the customer but of the bank. They offer a service, which is to honour their customer’s cheques when drawn upon an account in credit or within an agreed overdraft limit. If they pay out upon cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account. This is a risk of the service which it is their business to offer.’
The Board considered the need for the Board to follow earlier decisions of the House of Lords: ‘It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.’

Lord Scarman
[1985] 2 All ER 947, [1985] 2 Lloyds Rep 313, [1985] 3 WLR 317, [1986] AC 80, [1985] UKPC 22
Bailii
England and Wales
Citing:
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .

Cited by:
Cited – Yorkshire Bank plc v Lloyds Bank plc CA 12-May-1999
A customer of the plaintiff, sent a cheque to the defendant, with an application for shares. The cheque was stolen whilst in the defendant’s custody, but the plaintiff at first debited the account, then re-credited the balance. The claim failed . .
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
See Also – Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd PC 5-Feb-1986
(Hong Kong) The Boad considered the costs payable for counsel on an appeal to the Board from Hong Kong . .
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. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.238119

Abbey National Plc and others v The Office of Fair Trading: CA 26 Feb 2009

The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now appealed against an order against them.
Held: An assessment of the fairness of the Relevant Charges in this case was not excluded by regulation 6(2)(b), and the appeal was dismissed. The contracts between banks and their customers were covered by the 1999 regulations, and the OFT could investigate. The 1999 Regulations were to be interpreted so as to give effect to the Directive, and the travaux preparatoires are a legitimate aid to the construction of the Directive. Those works showed that the underlying idea of excluding anything from the assessment for fairness was that there should be excluded only that which could be expected to result from the contractual freedom of the parties to negotiate the particular term. That might exclude the core terms of a contract but should not exclude ancillary terms. In the circumstances the Relevant Charges were not part of the core or essential bargain with the customer.
The court adopted four propositions as to the interpretation of EC instruments: ‘rules or principles of interpretation. A provision means what it means, in the context in which it appears and, as in domestic law, resort may be had to a variety of different indicators in arriving at the true meaning of the provision in hand, and in different contexts different indicators will have different degrees of influence. There are no hard edged rigid rules.
ii) It is wrong to set up a teleological or purposive interpretation on the one hand and a literal interpretation on the other as if they were mutually exclusive alternatives. It is not as simple as that. A literal interpretation of legislative wording may be required in order to achieve the legislative purpose. In that event a teleological approach would require a literal interpretation. A teleological interpretation does not necessarily mean an expansive interpretation. It simply means giving effect to the intended purpose of the legislative instrument, which may or may not involve simply giving its words their literal meaning.
iii) It is wrong to adopt a prescriptive approach to the meaning of the expression ‘restrictive interpretation’. It is not a mathematical formula to be applied with precision. As Lord Steyn has said extrajudicially, interpretation is an art and not a science. When applying a restrictive interpretation, the court must take account of the ordinary meaning of the words used but it must do so in the relevant legislative context and must therefore have regard to the overall purpose of the Directive, and in particular to the specific interests that the relevant exception (here article 4(2) of the Directive (and therefore paragraph 6(2)(b) of the 1999 Regulations)) is designed to protect. Such an exercise might involve reading words in, cutting them out or taking any other step necessary to produce a result which reflects the relevant purpose in the circumstances. It follows that it is wrong to suggest that the phrase ‘restrictive interpretation’ must involve simply giving the words their ordinary meaning. It is not as simple as that. As ever, all depends upon the circumstances.
iv) It does not help to say that a restrictive interpretation means giving words their ordinary or usual meaning because legislative wording inevitably has a certain elasticity of meaning depending upon its context. Put another way, the natural meaning of the words will itself depend upon the purpose for which and the context in which they are being used.’

Sir Anthony Clarke MR
[2009] EWCA Civ 116, Times 03-Mar-2009, [2009] 2 CMLR 30, [2009] 1 All ER (Comm) 1097, [2009] 2 WLR 1286
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 6(2)(b), Council Directive 93/13/EEC on unfair terms in consumer contracts, EC Treaty 95(3)
England and Wales
Citing:
See Also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
Cited – Commission v Spain ECJ 18-Jan-2001
ECJ Judgment – Failure of a Member State to fulfil its obligations – Article 12(3)(a) of the Sixth VAT Directive – Application of a reduced rate to motorway tolls . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited – London Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .
See Also – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal from – 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 . .

Cited by:
Appeal from – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, European

Updated: 01 November 2021; Ref: scu.304530

Ladbroke and Co v Todd: 1914

The plaintiff had drawn a cheque and sent it to the payee by post. The letter was stolen and the thief took it to the defendant, a banker, and used it to open an account. In doing so, he forged the payee’s endorsement. The defendant believed him to be the payee. He was not introduced to the bank and no references were obtained. The defendant opened the account and the cheque was specially cleared at the request of the thief, and he drew out the proceeds on the next day. On discovering the fraud, the plaintiff brought an action against the defendant for conversion. One question raised was whether the account having been opened by payment in all the cheques to be collected the defendant could be properly regarded as having received payment for a customer.
Held: Since the account had already been opened when the cheque was collected, payment had been received for a customer. The drawer thereupon sent another cheque to the real payee and took an assignment of his rights in the stolen cheque and, as holders of the cheque or alternatively as assignees, brought an action against the bank to recover the proceeds collected by the bank as money had and received to their use. Evidence had been given that it was the general practice of bankers to obtain a satisfactory introduction or reference.
The banker had acted in good faith, but was guilty of negligence in not taking reasonable precautions to safeguard the interests of the true owner of the cheque and that therefore he had put himself outside the protection of Section 82 of the 1882 Act. The banker would have been entitled to the protection of the section as having received payment for a customer, but had lost it owing to his want of due care. The relation of banker and customer began as soon as the first cheque was handed in to the banker for collection, and not when it was paid.

Bailhache J
(1914) 30 TLR 433, (1914) 111 LT 43, (1914) 19 Com Cas 256
Bills of Exchange Act 1882 82
England and Wales

Banking

Leading Case

Updated: 01 November 2021; Ref: scu.514413

BNP Paribas And BNL v Commission: ECJ 21 Jun 2012

ECJ Appeals – State aid – Scheme for the realignment of the value of assets for tax purposes – Banking sector – Taxation of capital gains – Substitute tax – Selectivity

Cunha Rodrigues P
C-452/10, [2011] EUECJ C-452/10 – P
Bailii
European
Citing:
See Also – BNP Paribas And BNL v Commission ECJ 3-Mar-2011
(Order) Intervention . .

Lists of cited by and citing cases may be incomplete.

European, Banking, Capital Gains Tax

Updated: 01 November 2021; Ref: scu.460889

National Westminster Bank Plc v Somer International (Uk) Limited: CA 22 Jun 2001

The bank by mistake credited andpound;76,000 to the Defendant’s account and erroneously later indicated that it had come from a customer of the Defendant, M; in reliance on that, the Defendant dispatched goods to the value of some andpound;13,000 to M who later ceased trading and effectively disappeared without paying.
Held: The defendant’s appeal failed. Because the Defendant had only suffered detriment in relation to the andpound;13,000 it was not entitled to keep the balance because it will be unconscionable for it to do so. With respect to the defence of change of position to a claim for equitable restitution, ‘change of position’ only protects actual reduction of the transferee’s assets following receipt.’
Potter LJ said: ‘Similarly, the point is made that, albeit in Skyring -v Greenwood and Holt -v- Markham there was no exact enquiry into the degree to which each defendant had altered his financial position, there was equally no judicial statement that estoppel by representation could not operate pro tanto in an appropriate case. In Skyring -v- Greenwood, indeed, it is not clear that there was evidence of any detrimental reliance, the court simply assuming that it had taken place. In Holt -v- Markham, while it is clear from the judgment of Warrington LJ at 512 that not all the money had been spent, there is no indication whether the balance which remained was substantial and it is clear that, in addition to mere spending, the defendant had parted with his War Savings Certificates: see per Bankes LJ at 511. It seems to me that those cases do no more than establish that the court will generally think it appropriate to treat the matter broadly and will not require the defendant to demonstrate in detail the precise degree or value of the detriment which he has suffered in circumstances where, as Slade LJ pointed out, ‘he may find it difficult subsequently to recall and identify retrospectively the nature and extent of commitments undertaken or expenditure incurred as a result of an alteration in his general mode of living’. However, it is open to the court, acting on equitable principles, to take the view that some restitution is necessary, albeit the burden upon the defendant of proving the precise extent of his detriment should be a light one. In these circumstances, the court may well have broad regard to, without being bound to follow, the developing lines of the courts’ approach in `change of position’ cases. However, the two defences will remain distinct, unless or until the House of Lords rules otherwise.’
Peter Gibson LJ said: ‘I fully accept that the court, when assessing detriment, should not apply too demanding a standard of proof because of the practical difficulties faced by a defendant conducting a business who has been led to believe that the moneys paid by mistake are his (see the remarks of Slade L.J. in Howlett at pp. 621, 2) . . ‘

Lord Justice Peter Gibson, Lord Justice Potter, Lord Justice Clarke
[2001] EWCA Civ 970, [2002] QB 1286, [2002] 3 WLR 64, [2002] 1 All ER 198, [2001] All ER (D) 235, [2001] Lloyds Rep Bank 263
Bailii
England and Wales
Cited by:
Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.160071

Tam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd: PC 1996

The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank itself.
Held: Lord Mustill discussed the need to construe a contract contra preferentem: ‘the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not.’

Lord Mustill
[1996] 2 BCLC 69, [1996] UKPC 69
Bailii
England and Wales
Citing:
Cited – In Re Conley CA 1938
A loan had been made, secure by a deposit by a third party. The company was said to have repaid the secured overdraft to secure the release of the deposit and its release from the hands of the general creditors. The court was asked whether the . .
Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Cited – Morris and Others v Agrichemicals Ltd and Others CA 20-Dec-1995
No mandatory set off on liquidation without the requirement for mutuality. The Court accepted a proposition that a chargeback arrangement was inefficiency, no implication followed as to the recourse against the Depositor of a collateral security. . .

Cited by:
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Peabody Trust v Reeve ChD 2-Jun-2008
The court was asked to sanction the unilateral alteration by the landlord of the terms of some ten thouand tenancies. The agreements contained a clause which the landlord said allowed for variations under the Housing Act 1985. The landlord was a . .
Cited – Oxonica Energy Ltd v Neuftec Ltd CA 9-Jul-2009
The parties had entered into a patent and know-how licensing agreement, the interpretation of which was now disputed. . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.273187

K Ltd v National Westminster Bank Plc and others: CA 19 Jul 2006

The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s appeal failed. Parliament had laid down a proper procedure and the bank had followed it: ‘if a statute renders the performance of a contract illegal, the contract is frustrated and both sides are discharged from further performance. In a case, however, where a statute makes it temporarily illegal to perform the contract, the contract will only be suspended until the illegality is removed. That still means that, during the suspension, no legal right exists on which any claim to an injunction must depend. ‘ and ‘Parliament has struck a precise and workable balance of conflicting interests in the 2002 Act. It is, of course, true that to intervene between a banker and his customer in the performance of the contract of mandate is a serious interference with the free flow of trade. But Parliament has considered that a limited interference is to be tolerated in preference to allowing the undoubted evil of money-laundering to run rife in the commercial community.’

[2006] EWCA Civ 1039, Times 27-Jul-2006, [2007] 1 WLR 311, [2007] Bus LR 26
Bailii
Proceeds of Crime Act 2002 328
England and Wales
Citing:
Cited – Bank of Scotland v A Ltd and Others (Serious Fraud Office, Interested Party) CA 6-Feb-2001
A bank, having been informed that the activities of a customer involved money laundering, found itself in a position where, if it paid out the funds, it would face conviction, but if it failed to do so, it be found to be involved in tipping off the . .
Cited – Da Silva, Regina v CACD 11-Jul-2006
The defendant appealed her conviction for assisting another to retain the proceeds of crime. The court considered what was meant by ‘suspicion’.
Held: For a defendant to be convicted of an offence under section 93A(1)(a) of the 1988 Act, he or . .
Cited – Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit and others ComC 3-Apr-2003
The company provided trading services in financial futures. They became concerned as to the integrity of their client, and its relationship with shareholders and other companies where parties came to be arrested for fraud in the US. They sought a . .
Cited – New Bridge Holdings v Barclays Bank 10-Feb-2006
The court suggested as a way of dealing with problems under the Act that attempts should be made: ‘to provide for some procedure whereby the arbitrary and capricious exercise of power should be prevented by the court being told, in confidence by the . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
See Also – K Ltd v National Westminster Bank Plc and Another CA 22-May-2006
Application by respondent bank for security for costs. . .

Cited by:
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .

Lists of cited by and citing cases may be incomplete.

Banking, Crime

Updated: 01 November 2021; Ref: scu.243324

Westdeutsche Landesbank Girozentrale v Islington London Borough Council: HL 22 May 1996

Simple interest only on rate swap damages

The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could also award compound interest. It was clear law that the court had power to do so in the case of a breach of trust.
Held: Simple interest only was payable on a debt payable for an interest rate swap agreement which had been avoided as ultra vires the council’s powers. The failure of the swap agreement did not place the authority under any fiduciary duty to the claimants. A finding to that effect would create equitable interests with uncertain consequences for others. Accordingly simple interest only was payable. Parliament had made its intentions clear and it was not for the courts to create new situations in which compound interest would be awarded. ‘Although it is difficult to find clear authority for the proposition, when property has been obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity.’ An innocent recipient of property wrongfully obtained does not become a constructive trustee of it until receipt of knowledge of the claim in equity of the true owner.
HL Lord Goff said: ‘Claims in restitution are founded upon a principle of justice, being designed to prevent the unjust enrichment of the defendant: see Lipkin Gorman v Karpnale Ltd. [1991] 2 A.C. 548. Long ago, in Moses v Macferlan (1760) 2 Burr. 1005, 1012, Lord Mansfield C.J. said that the gist of the action for money had and received is that ‘the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money’. It would be strange indeed if the courts lacked jurisdiction in such a case to ensure that justice could be fully achieved by means of an award of compound interest, where it is appropriate to make such an award, despite the fact that the jurisdiction to award such interest is itself said to rest upon the demands of justice. I am glad not to be forced to hold that English law is so inadequate as to be incapable of achieving such a result. In my opinion the jurisdiction should now be made available, as justice requires, in cases of restitution, to ensure that full justice can be done. The seed is there, but the growth has hitherto been confined within a small area. That growth should now be permitted to spread naturally elsewhere within this newly recognised branch of the law. No genetic engineering is required, only that the warm sun of judicial creativity should exercise its benign influence rather than remain hidden behind the dark clouds of legal history.’
Lord Browne-Wilkinson said (obiter): ‘The argument for a resulting trust was said to be supported by the case of a thief who steals a bag of coins. At law those coins remain traceable only so long as they are kept separate: as soon as they are mixed with other coins or paid into a mixed bank account they cease to be traceable at law. Can it really be the case, it is asked, that in such circumstances the thief cannot be required to disgorge the property which, in equity, represents the stolen coins? Moneys can only be traced in equity if there has been at some stage a breach of fiduciary duty, i.e. if either before the theft there was an equitable proprietary interest (e.g. the coins were stolen trust moneys) or such interest arises under a resulting trust at the time of the theft or the mixing of the moneys. Therefore, it is said, a resulting trust must arise either at the time of the theft or when the moneys are subsequently mixed. Unless this is the law, there will be no right to recover the assets representing the stolen moneys once the moneys have become mixed.
I agree that the stolen moneys are traceable in equity. But the proprietary interest which equity is enforcing in such circumstances arises under a constructive, not a resulting, trust. Although it is difficult to find clear authority for the proposition, when property is obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity. Thus, an infant who has obtained property by fraud is bound in equity to restore it: Stocks v. Wilson [1913] 2 K.B. 235, 244; R. Leslie Ltd. v. Sheill [1914] 3 K.B. 607. Moneys stolen from a bank account can be traced in equity: Bankers Trust Co. v. Shapira [1980] 1 W.L.R. 1274, 1282C-E: see also McCormick v. Grogan (1869) L.R. 4 H.L. 82, 97′.
Lord Browne-Wilkinson explained the differences between institutional and remedial constructive trusts: ‘Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it: the function of the court is merely to declare that such trust has arisen in the past. The consequences that flow from such trust having arisen (including the possibly unfair consequences to third parties who in the interim have received the trust property) are also determined by rules of law, not under a discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court.’

Lord Browne-Wilkinson, Lord Goff, Lord Woolf
Times 30-May-1996, [1996] 2 All ER 961, [1996] 2 AC 669, [1996] UKHL 12, [1996] 2 WLR 802, [1996] 5 Bank LR 341
Bailii
England and Wales
Citing:
Appeal from – Westdeutsche Landesbank Girozentrale v Islington London Borough Council CA 30-Dec-1993
A bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority’s powers.
Held: The local authority was to repay the money paid to it for an ultra vires purpose (a swap . .
Cited – Burdick v Garrick HL 1870
In the courts of Chancery, the statute of limitations would not apply when the person in a confidential relationship had got the property into his hands. A court presumes against the party against whom relief is sought that he has made that profit . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Applied – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Cited by:
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Kommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Cited – Clarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .
Cited – Pindell v AirAsia CA 2011
Tomlinson LJ drew attention to the danger of attempting to draw parallels between an aircraft operating (dry) lease and some other more commonly litigated superficially similar instruments such as time charters of ships, where the legal incidents . .
Cited – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .
Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Cited – Filby v Mortgage Express (No 2) Limited CA 22-Jun-2004
Mr and Mrs Filby’s matrimonial home was charged to the Halifax. They also had an unsecured loan with the Midland Bank. Mr Filby sought to remortgage the matrimonial home with Mortgage Express. The mortgage advance was paid to solicitors who used . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Obiter comments doubted – Shalson and others v Russo and others ChD 11-Jul-2003
Rimer J doubted obiter comments of Lord Brown-Wilkinson: ‘I do not find that an easy passage. As to the first paragraph, a thief ordinarily acquires no property in what he steals and cannot give a title to it even to a good faith purchaser: both the . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Cited – Fetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.

Banking, Local Government, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.90405

Royal Bank of Scotland Plc v Wilson and Another: SC 24 Nov 2010

(Scotland) Neighbours had each granted a standard security over their respective properties to the bank. The charge agreements contained personal covenants to repay the sums borrowed on demand. The land-owners appealed against an order for ejectment.
Held: The borrowers’ appeal succeeded. The 1970 Act created the standard security but it was a very technical Act. The chargors said that the notice given by the bank was defective under the Act having failed to state that it was exercising its powers under the charge, and failing to give notice to each chargor. Instead of applying under the notice, the bank applied under section 24. However, section 24 could not be used in substitution for a calling up notice. A certificate of default is an item of evidence created for use in proceedings and is not a ‘formal requisition’ under section 5, since that requisition has to be made before any proceedings are begun.
Section 19(1) imposes mandatory requirements, and is not merely permissive.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Clarke
[2010] UKSC 50, UKSC 2009/0228, 2010 SLT 1227, 2010 GWD 39-792, 2010 Hous LR 88, 2010 SLT 1227
Bailii, SC Summary, SC, Bailii Summary
Conveyancing and Feudal Reform (Scotland) Act 1970 5 19(1) 24, Heritable Securities (Scotland) Act 1894 5
Scotland
Citing:
Cited – AIB Group (UK) Plc (Formerly Allied Irish Banks Plc and AIB Finance Limited) v Martin and Another HL 13-Dec-2001
Where a mortgage was taken out by business partners, their liability was joint and several. Partners had taken out a loan, but the terms of the mortgage appeared to make each debtor liable for all sums due from either of them, including for debts to . .
See Also – The Royal Bank of Scotland Plc v Wilson and Wilson (Ap) Wilson and Wilson OHCS 9-Jul-2003
. .
Appeal from – Royal Bank of Scotland Plc v Wilson and Others SCS 5-May-2009
The bank appealed against refusal of ejectment under a charge.
Held: The appeal failed. . .
Cited – Multi-Link Leisure Developments v North Lanarkshire Council SCS 30-Dec-2009
Landlords appealed against a ruling that the ‘full market value’ of the presents to be paid by the tenants on exercising an option contained in their lease was to be set by reference to its intended use.
Held: The appeal succeeded. The words . .

Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 01 November 2021; Ref: scu.426474

Crockfords Club Ltd v Mehta: CA 8 Jan 1992

The Defendant had gambled at the plaintiff’s casino, using cheques drawn on a company to obtain chips, all of which he lost. The cheques not having been honoured, Crockfords sued the Defendant for repayment of the loan made to him on the issue of the chips, and applied for summary judgment. At first instance, Henry J held that the cheques had been accepted in conditional repayment of the loan, so that on dishonour of the cheques, the Defendant remained liable on the loan. He then held that, just as section 16(2) and (4) validated the cheques, so they validated the underlying loan.
Held: A cheque which had been given in exchange for gaming tokens which complied with the Act was to be enforced as would be any other cheque. The use of such tokens was regulated and supported by the law. No new sub-species of contract was created by the Act.
Lloyd LJ said: ‘The legislative purpose of section 16 of the 1968 Act was to discourage gaming on credit. But consistently with that overall objective Parliament had to allow machinery for enabling lawful gaming to take place at licensed clubs. Otherwise those taking part in the gaming would have had to bring their own cash. The solution adopted was a neat one, and is to be found in section 16(1) and (2). Provided the cheque meets the requirements of subsection (2) and subsection (3), the giving of cash or tokens in exchange for the cheque does not contravene subsection (1).
The error in Mr Glick’s argument is to treat section 16(2) as if it only validated the cheque. It does more than that. It validates the whole transaction. Subsection (1) is subject to subsection (2). Subsection (2) provides that the transaction-that is to say the giving of the cash or tokens in exchange for the cheque-shall not contravene section 16(1). Provided the cheque complies with subsections (2) and (3) there is nothing in subsection (1) to prohibit the underlying loan.
What then was the purpose of section 16(4)? The explanation, like so much else in our law, is historical. The old legislation did not make loans for lawful gaming illegal. The Act of 1710 is concerned with securities. It provides that all securities for repaying money knowingly lent for gaming should be ‘utterly void frustrate and of none effect to all intents and purposes whatsoever’. But this was found to work injustice on an innocent holder for value-that is to say a third party to whom the security may have been negotiated without notice. So 125 years later, by the Act of 1835, Parliament amended the law so as to provide that the security should not be void, but should be deemed to have been given for an illegal consideration. Nothing in either Act affects the underlying loan.
The subsequent history is traced in CHT Ltd v Ward [1965] 2 QB 63. It was argued that it would be absurd to invalidate the security but to leave the contract of loan unaffected. That cannot have been Parliament’s intention. This argument was accepted by the Divisional Court in Carlton Hall Club Ltd v Laurence best reported in 98 LJKB 305. It was held that the consideration for the security which was deemed to be illegal as between immediate parties under the Act of 1835 tainted the loan itself.
It was to prevent this line of argument being resurrected that Parliament found it necessary, or at any rate desirable, to enact section 16(4). The source of the taint has now been removed. There is no longer, therefore, any basis for the argument that the underlying loan is illegal or unenforceable. Indeed, to turn the argument the other way, it would surely be absurd to hold that Parliament had, by the Act of 1968, made the cheque enforceable, but made it a criminal offence to enter into the underlying contract of loan.’

Lloyd LJ
Gazette 08-Jan-1992, [1992] 1 WLR 355
Gaming Act 1968 16
England and Wales
Cited by:
Cited – Aspinall’s Club Ltd v Al-Zayat CA 19-Oct-2007
The claimant had sued the defendant for non-payment under a cheque for andpound;2 million. The cheque had been issued to replace earlier cheques given but not met, for sums staked for gambling at the claimant’s casino. The defendant said that the . .
Cited – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Cited – The Ritz Hotel Casino Ltd v Al Daher QBD 15-Aug-2014
The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.79676

Baczo And Vizsnyiczai v Raiffeisen Bank Zrt: ECJ 12 Feb 2015

baczo_ECJ201502

ECJ Judgment – Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Article 7 – Mortgage loan agreement – Arbitration clause – Unfairness – Action by consumer – National procedural rule – Lack of jurisdiction of the court hearing the action by a consumer for a declaration of invalidity of a standard contract to hear the application for a declaration of unfairness of terms in the same contract

M Ilesic P
C-567/13, [2015] EUECJ C-567/13
Bailii
Directive 93/13/EEC 7

European, Banking, Consumer

Updated: 01 November 2021; Ref: scu.543252

Ledra Advertising v Commission and ECB: ECJ 20 Sep 2016

European Stability Mechanism – Constitutional?

ECJ (Judgment) Appeals – Stability support programme for the Republic of Cyprus – Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) – Duties of the European Commission and the European Central Bank – Non-contractual liability of the European Union – Second paragraph of Article 340 TFEU – Conditions – Obligation to ensure that the Memorandum of Understanding is consistent with EU law

ECLI:EU:C:2016:701, [2016] EUECJ C-8/15
Bailii
European

European, Banking

Updated: 01 November 2021; Ref: scu.569513

Barclays Bank SA v Sara Sanchez Garcia: ECJ 30 Apr 2014

ECJ Judgment – Request for a preliminary ruling – Directive 93/13/EEC – Thirteenth recital in the preamble – Article 1(2) – Consumer contracts – Mortgage loan agreement – Mortgage enforcement proceedings – National statutory and regulatory provisions – Contractual balance

A. Borg Barthet, P
C-280/13, [2014] EUECJ C-280/13
Bailii
Directive 93/13/EEC
European

European, Consumer, Banking

Updated: 01 November 2021; Ref: scu.525423

Shah and Another v HSBC Private Bank (UK) Ltd: QBD 26 Jan 2009

The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The bank requested that the claims be struck out. The claimants sought permission to amend their claims.
Held: The law is a developing area. As to the level of suspicion required to trigger a duty to report funds: ‘All that is required is that there is a suspicion. If there is, then POCA is triggered regardless of the reasonableness of that suspicion. ‘ and ‘Suspicion is something less than proof. It is also straightforward. In the context of a bank, the relevant employee either suspects or he does not. If he does, he must inform the authorities. Parliament intended suspicion as a subjective fact to be sufficient (1) to expose a person to criminal liability for money laundering and (2) to trigger disclosures to the authorities. Parliament did not require, in addition, that the suspicion be based upon ‘reasonable’ or ‘rational’ grounds. There are good practical reasons for this. Unlike law enforcement agencies, banks have neither the responsibility nor the expertise to investigate criminal activity to satisfy themselves that the grounds for their suspicion are well founded, reasonable or ‘rational’.’
The effect of the Act was to suspend the normal contractual duties between client and bank. The customer could claim only if it could show bad faith (which was not pleaded) or negligence. The requested amendment to allow a claim for breach of confidence failed. Nor could the claimant request the reasons for the disclosure.

Hamblen J
[2009] EWHC 79 (QB), [2009] Lloyd’s Rep FC 225, [2009] 1 Lloyd’s Rep 328, [2009] 6 EG 100
Bailii
Civil Procedure Rules, Proceeds of Crime Act 2002 328
England and Wales
Citing:
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – UMBS Online, Regina (on the Application Of) v Serious Organised Crime Agency CA 21-Mar-2007
Application for leave to appeal against refusal of leave to bring judicial review of a decision of the respondent agency. Leave to appeal was granted, but the matter was returned to the administrative court for review. . .
Cited – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Da Silva, Regina v CACD 11-Jul-2006
The defendant appealed her conviction for assisting another to retain the proceeds of crime. The court considered what was meant by ‘suspicion’.
Held: For a defendant to be convicted of an offence under section 93A(1)(a) of the 1988 Act, he or . .
Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
Cited – Weld-Blundell v Stephens HL 1920
A physical cause may be irrelevant as a matter of law. The law is concerned not with causation, but with responsibility. Lord Sumner said: ‘more than half of human kind are tale-bearers by nature’.
Where a legal wrong was committed without loss . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – Christopher Hill Ltd v Ashington Piggeries Ltd CA 1969
The buyer suppied a food formula to a food mixer and claimed damages when the food mix injured his mink. The defendant argued that the level of damages sought exceeded that expectations of the parties when the contract was entered into.
Held: . .
Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .

Cited by:
Cited – Shah and Another v HSBC Private Bank (UK) Ltd (Costs) CA 4-Feb-2010
. .
Appeal from – Shah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
See Also – Shah and Another v HSBC Private Bank (UK) Ltd QBD 4-Jul-2011
The claimants sought very substantial damages against the bank, arising from the bank’s delay in executing four transactions. The defendant said that it suspected that the proposed transactions concerned criminal property and that, in those . .
See Also – Shah and Another v HSBC Private Bank (UK) Ltd CA 13-Oct-2011
. .
See Also – Shah and Another v HSBC Private Bank (UK) Ltd CA 30-Nov-2011
Appeal against refusal of permission to amend pleadings. The claimants suffered large losses after the bank delayed implementing his instructions after staff members initiated a report under the 2002 Act. The claimant said that the evidence . .
See Also – Shah and Another v HSBC Private Bank (UK) Ltd QBD 16-May-2012
The Claimants claimed damages in a sum in excess of US$300,000,000 arising out of delays by the Defendant, their bankers, in executing four transfers from the Claimants’ account during the period September 2006 to March 2007 and the Defendant’s . .
See Also – Shah and Another v HSBC Private Bank (UK) Ltd QBD 5-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Banking, Criminal Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.280155

Smith v Governor and Company of The Bank of Scotland: HL 6 Feb 1997

A bank which did not warn its customer of the of risks of a loan and of the need for independent advice was bound by misrepresentations made by customer. The House referred to ‘the broad principle in the field of contract law of fair dealing in good faith.’

Lord Clyde
Times 23-Jun-1997, [1997] 2 FLR 862, 1997 SC (HL) 111, [1997] UKHL 26
House of Lords, Bailii
Scotland
Citing:
Appeal from – Mumford v Bank of Scotland; Smith v Same OHCS 4-Aug-1994
Bank has no duty in Scotland to wife of borrower securing debt on house. . .

Cited by:
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

Lists of cited by and citing cases may be incomplete.

Banking, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.135220

Uzinterimpex JSC v Standard Bank Plc: ComC 15 May 2007

The court considered the liability of a bank under its guarantee of a transaction. The court set out the elements of the tort of deceit: (a) The defendant must have made a representation which can be clearly identified.
(b) It must be a representation of fact.
(c) The representation must be false.
(d) It must have been made dishonestly in the sense that the representor has no real belief in the truth of what he states: this involves conscious knowledge of the falsity of the statement.
(e) The statement must have been intended to be relied upon.
(f) It must have in fact been relied upon: see Derry v Peek (1889) 14 App Cas 337, Angus v Clifford [1891] 2 Ch 449, Armstrong v Strain [1951] 1 TLR 856, The Kriti Palm [2007] 1 Lloyd’s Rep 555.
In addition, all the elements must be established by reference to the heightened burden of proof as discussed in Hornal v Neuberger Products Ltd [1954] 1 QB 247, Re H (Minors) [1996] AC 563.’

David Steel J
[2007] EWHC 1151 (Comm), [2007] 2 Lloyd’s Rep 187
Bailii
England and Wales
Cited by:
Cited – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Appeal from – Uzinterimpex JSC v Standard Bank Plc CA 15-Jul-2008
The parties disputed the result of a contract for the purchase of cotton with the contract underwritten by a bank.
Held: After the breach of the contract, the claimant had failed properly to mitigate his losses. That failure in turn itself . .

Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Leading Case

Updated: 31 October 2021; Ref: scu.252331

Southern Pacific Securities 05-2 Plc v Walker and Another: SC 7 Jul 2010

The appellant borrowed a sum from the respondent under a fixed sum credit agreement. A broker administration fee had been advanced to facilitate the loan. The agreement recorded the ‘Amount of Credit’ net of the fee, and the ‘Total Amount Financed’ included the fee. The borrower said the agreement was unenforceable for mis-stating the amount of credit by not including the charge for credit.
Held: The borrower’s appeal failed. Since under section 9(4) ‘an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment.’ The fee was indisputably part of the total charge for credit and must accordingly be excluded from the amount of credit. The fact that interest was charged on the fee did not change this: ‘Section 9(4) does not prohibit the charging of interest. If the fee itself was part of the total charge for credit, it seems to us to follow that interest on that fee was also part of the total charge for credit and not therefore to be treated as credit.’

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Mance, Lord Clarke
[2010] UKSC 32, UKSC 2009/0217, [2010] Bus LR 1396, [2010] 1 WLR 1819, [2010] 4 All ER 277, [2011] 1 All ER (Comm) 164
SC, Bailii, Bailii Summary, SC Summary
Consumer Credit Act 1974
England and Wales
Citing:
Cited – Wilson v First County Trust Ltd (1) CA 3-Nov-2000
The administrative charges for entering into a loan were not to be included in the loan, but rather as an item entering into the total charge for credit. To hold otherwise went against accounting practice, would disguise the cost of the loan, and . .
Appeal from – Southern Pacific Personal Loans Ltd v Walker and Another CA 12-Nov-2009
The bank appealed against an order that a consumer credit agreement was unenforceable for failing to meet the requirements. The amount of credit figure had been calculated to include the deferred obligation to pay the broker’s fee.
Held: The . .
Cited – Wilson v Robertsons (London) Ltd. ChD 5-Jul-2005
The parties entered into pawnbroking arrangements. In order to get around the consequences of the 1974 Act, the agreements were antedated.
Held: The court would not allow parties to contract out of the 1974 Act. Also, by including a document . .
Cited – Watchtower Investments Ltd v Payne and Another CA 20-Jul-2001
The mortgagor borrowed funds against the charge, and part of the condition of the loan was that any arrears on the first charge must be discharged. The total amount of the loan was calculated to include sufficient to discharge the arrears on the . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Leading Case

Updated: 31 October 2021; Ref: scu.420386

HFO Capital Ltd v Wegmuller: Misc 24 Jan 2012

‘claim brought by the claimant for monies allegedly owed by the defendant under a credit agreement regulated by the Consumer Credit Act 1974. It is claimed that the credit agreement was made between Barclaycard and the defendant in about June 2006. It involved the provision of a credit card by Barclaycard to the defendant.!

[2012] EW Misc 19 (CC)
Bailii
Consumer Credit Act 1974

Banking, Consumer

Updated: 31 October 2021; Ref: scu.510048

Commission v FIH Holding and FIH Erhversbank (State Aid): ECJ 28 Nov 2017

Opinion – Appeal – State aid – Banking sector – Aid granted to Danish bank FIH in the form of a transfer of its impaired assets to a new subsidiary and the subsequent purchase thereof by the Danish Financial Stability Company – Definition of State aid – Market economy operator test – Application of the market economy creditor test in a situation where the beneficiary has already received State aid
C-579/16, [2017] EUECJ C-579/16P_O
Bailii
European

Updated: 27 October 2021; Ref: scu.668600

Wuhan Guoyu Logistics Group Co Ltd and Another v Emporiki Bank of Greece Sa: CA 7 Dec 2012

The court was asked whether a payment guarantee is a guarantee, properly so called, or an ‘on demand bond’, as it is called in banking terminology. Christopher Clarke J had held that it is a guarantee properly so called and that it is therefore open to the defendant bank to argue that no payment became due under the contract containing the obligation guaranteed and that the bank is therefore not itself liable under the guarantee.
Longmore, Rimer, Tomlinson LJJ
[2012] EWCA Civ 1629
Bailii
England and Wales

Updated: 20 October 2021; Ref: scu.466795

Devaynes v Noble; Baring v Noble, Clayton’s Case: CA 1816

A partner in a banking firm died. The surviving partners continued to trade without making any changes. They later fell into bankruptcy. Creditors of the bank at the date of the death still traded with the bank with varying changes in their banking accounts.
Held: The fact that they continued to trade with the continuing partners did not discharge the estate of the deceased partner. Grant MR said: ‘I apprehend by the general mercantile law, a partnership contract is several as well as joint. That may probably be the reason why courts of equity have considered joint contracts of this sort, that is joint in form, as standing on a different footing from others.’
Grant MR
[1816] 1 Mer 572, [1814-23] All ER Rep 1, [1816] 35 ER 781
Worldlii
England and Wales
Cited by:
Cited – City Discount v McLean CCP 16-Jun-1874
The plaintiffs, a discount company, were in the habit of discounting bills for S. In consideration that the plaintiffs would advance money to a certain amount to S on the deposit of a lease of S’s premises, the defendant guaranteed any part of the . .
See Also – Baring v Noble 9-Mar-1831
The creditor of a partnership, in which one of the partners dies, and the surviving partners afterwards become bankrupt, has a right to resort to the assets of the deceased partner for payment, without regard to the state of the account as between . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.229249