Category: Banking

AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria: QBD 13 Jun 2003

AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act and that Nigeria was protected by state immunity by reason of section 1 of the 1978 Act. AIC argued that their application to register the judgment was a ‘proceeding relating to a commercial transaction’ within section 3(1)(a).
Held: The submissions was rejected: ‘In my judgment, the proceedings resulting from an application to register a judgment under the 1920 Act relate not to the transaction or transactions underlying the original judgment but to that judgment. The issues in such proceedings are concerned essentially with the question whether the original judgment was regular or not.’
Section 9 of the 1978 Act excludes immunity ‘as respects proceedings . . which relate to [an] arbitration’ where the state has entered into a written arbitration agreement. Since most arbitrations relate to commercial transactions, section 9 would be unnecessary if a claim in respect of an arbitration constituted a ‘proceeding relating to the commercial transaction’ to which the arbitration related, for that would fall within 3(1)(a). It would also be illogical to exempt from immunity the enforcement of a judgment in relation to a commercial transaction, but not the enforcement of a judgment in relation to any of the other matters in respect of which the 1978 Act provided exceptions to immunity under sections 3 to 11 of the Act.
It was unsurprising that the defendants were immune from proceedings for the registration of the Nigerian judgment: ‘the underlying principle of the State Immunity Act is that a state is not immune from the jurisdiction of the courts of the United Kingdom if it enters into commercial transactions or undertakes certain activities having some connection with this jurisdiction. Purely domestic activities of a foreign state are not the subject of any exception to immunity. Sections 3(1)(b), 4, 5, 6, 7, 8 and 11 all contain territorial qualifications to the exceptions to immunity to which they relate. Section 3(1)(a) does not include any such qualification, but even there the claimant wishing to bring proceedings must establish a basis for jurisdiction under CPR Part 6.20, normally under paragraphs (5) or (6), relating to contractual claims.’
Lord Denning MR when advancing the restrictive doctrine of state immunity in Rahimtoola v Nizam of Hyderabad [1958] AC 379, 422, in Thai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies [1975] 1 WLR 1485, 1491 and in Trendtex Trading v Bank of Nigeria [1977] 1 QB 529, 558 had emphasised the significance not merely of the fact that the proceedings related to a commercial transaction, but that the transaction was connected with the United Kingdom.

Judges:

Stanley Burnton J

Citations:

[2003] EWHC 1357 (QB)

Links:

Bailii

Statutes:

Administration of Justice Act 1920 9

Jurisdiction:

England and Wales

Citing:

Cited – Rahimtoola v Nizam of Hyderabad HL 1957
A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The . .
Cited – Thai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies 1975
Lord Denning said: ‘a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.

Cited by:

Cited – Republic of Argentina v NML Capital Ltd CA 4-Feb-2010
The appellant republic appealed against an order allowing the enforcement against it of a judgment obtained in the US by the claimant. There is no treaty between the US and the UK for the mutual recognition and enforcement of judgments, and an . .
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 . .
Applied – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Banking, International

Updated: 19 November 2022; Ref: scu.183563

Cooke v National Westminster Bank Plc; Waldron Wetherell and Co: CA 17 Jun 1998

Where a bank had failed to require the solicitors witnessing a wife’s signature to a guarantee, to write to confirm that she had received independent advice, and there had been undue influence, they were deemed to be on notice of such influence.

Citations:

Times 27-Jul-1998, [1998] EWCA Civ 1022

Jurisdiction:

England and Wales

Citing:

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

Undue Influence, Banking

Updated: 19 November 2022; Ref: scu.144501

Dunbar Bank Plc v Nadeem and Another: CA 1 Jul 1998

Manifest disadvantage had to be shown in order to establish a claim of presumed undue influence, but only damage if actual undue influence shown. Equity can only help if restitutio in integrum could be achieved.

Judges:

Millett LJ

Citations:

Times 01-Jul-1998, [1998] EWCA Civ 1027, [1998] 3 All ER 876, [1998] 2 FLR 457, [1998] 3 FCR 629, (1999) 31 HLR 402, [1998] Fam Law 595

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .

Cited by:

Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking, Equity

Updated: 19 November 2022; Ref: scu.80168

Bennett v The Governor and Company of the Bank of Scotland: CA 23 Jul 2004

The bank had obtained judgment against the defendant, but had failed to act upon it, and the judgment became unenforceable. It then began later proceedings on the original debt (still within the applicable limitation period). The defendant said this was an abuse of process.
Held: The decision in Ridgeway after close of oral argument on the original trial did not affect the question on whether new proceedings amounted to an abuse of process. It was not an abuse to commence proceedings based upon an earlier judgment. Though the second set of proceedings might be unnecessary, they were not an abuse.

Judges:

Lord Justice Mummery Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 988, Times 04-Aug-2004

Links:

Bailii

Statutes:

Limitation Act 1980 24

Jurisdiction:

England and Wales

Citing:

Cited – E D and F Man (Sugar) Ltd v Haryanto ChD 24-Nov-1995
Enforcement by judgment on co-ordinate jurisdiction judgment is discretionary: ‘ . . having regard to the decision in Re A Debtor [1977] Ch 310 that s 24(1) of the 1980 Act bars after six years rights of action including proceedings in the form of . .
Cited – ED and F Man (Sugar) v Haryanto CA 17-Jul-1996
An action may be brought on a judgment to enforce it, if it is still within the relevant limitation period: ‘Suing on a judgment, at all events for the first time, cannot be said to defeat legislative policy. That is plain from the very language of . .
Cited – Re A Debtor 1977
Corporate insolvency proceedings based on a statutory demand for monies due under a previous judgment are an ‘action on a judgment’ within s 24 rather than a method of enforcing or executing the judgment. They are barred by s 24 if brought more than . .

Cited by:

Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Lists of cited by and citing cases may be incomplete.

Banking, Limitation

Updated: 18 November 2022; Ref: scu.199479

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 consent.
Held: The bank had failed in its duty of disclosure of the practices current at the time, and appeared to have a positive policy of concealing the fact that it had given a reference.

Citations:

[1998] EWCA Civ 529, [1999] Lloyds Rep Banking 231

Jurisdiction:

England and Wales

Citing:

Mentioned – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Cited – 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 – Barclay’s Bank v Bank of England 1985
The court rejected an argument that because it was the usage of bankers to clear cheques through the clearing house system, the obligation of a presenting banker to present the cheque for collection at the branch of the paying bank where the drawer . .

Cited by:

See Also – Turner v Royal Bank of Scotland plc CA 6-May-1999
The bank replied to several enquiries as to the customer’s credit status without first seeking the customer’s consent. It claimed that this was general practice at the time.
Held: The practice fell short of being ‘notorious’ or well known, and . .
See Also – Turner v Royal Bank of Scotland Plc CA 23-Jan-2001
The claimant sought damages for an alleged negligent mis-statement by his bankers when giving a reference. He sought leave to appeal.
Held: Leave was refused. The claimant had not established either that the bank had broken its duty of care to . .
Lists of cited by and citing cases may be incomplete.

Banking, Information

Updated: 14 November 2022; Ref: scu.144007

Bank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse: CA 13 Feb 1998

The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include (according to the authorities): ‘(a) the precise relationship between (to use convenient terms) the adviser and the advisee. This may be a general relationship or a special relationship which has come into existence for the purpose of a particular transaction. But in my opinion counsel for Overseas was correct when he submitted that there may be an important difference between the cases where the adviser and the advisee are dealing at arm’s length and cases where they are acting ‘on the same side of the fence.
(b) the precise circumstances in which the advice or information or other material came into existence. Any contract or other relationship with a third party will be relevant.
(c) the precise circumstances in which the advice or information or other material was communicated to the advisee, and for what purpose or purposes, and whether the communication was made by the adviser or by a third party. It will be necessary to consider the purpose or purposes of the communication both as seen by the adviser and as seen by the advisee, and the degree of reliance which the adviser intended or should reasonably have anticipated would be placed on its accuracy by the advisee, and the reliance in fact placed on it.
(d) the presence or absence of other advisers on whom the advisee would or could rely. This factor is analogous to the likelihood of intermediate examination in product liability cases.
(e) the opportunity, if any, given to the adviser to issue a disclaimer.’

Judges:

Neill LJ

Citations:

Times 04-Mar-1998, [1998] EWCA Civ 236, (1998) PNLR 564, [1998] Lloyd’s Rep Bank 85

Jurisdiction:

England and Wales

Citing:

Appeal from – Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse ChD 7-Feb-1997
No duty of care was owed by accountants who were not auditors to lenders to the company audited. The claim was struck out. . .
Cited – Morgan Crucible Company Plc v Hill Samuel and Co Ltd ChD 24-Jul-1990
The court laid down the procedure on a strike out application: ‘On an application to strike out a pleading under RSC Ord.18, r.19(1)(a) no evidence is admissible and since it is only the pleading itself which is being examined, the court is required . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
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 by:

Cited – The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm) QBD 31-Jul-2002
The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were . .
Appealed to – Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse ChD 7-Feb-1997
No duty of care was owed by accountants who were not auditors to lenders to the company audited. The claim was struck out. . .
Cited – 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 – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Banking

Updated: 14 November 2022; Ref: scu.143714

Protimonopolny Urad Slovenskej Republiky v Slovenska Sporitel’Na A.S.: ECJ 7 Feb 2013

ECJ Agreements, decisions and concerted practices – Agreement concluded between a number of banks – Competitor allegedly operating unlawfully on the market concerned – Effect – None

Judges:

A. Rosas, P

Citations:

C-68/12, [2013] EUECJ C-68/12, [2013] WLR(D) 52

Links:

Bailii

European, Commercial, Banking

Updated: 14 November 2022; Ref: scu.470854

Graiseley Properties Ltd and Others v Barclays Bank Plc and Others: ComC 24 Jan 2013

The claimants sought damages alleging that the defendant bank had manipulated the LIBOR bank rate whch was used to set interest rates on its loan. The defendant sought guidance as to the form to be taken by its electronic disclosures, and an order whereby the names of individuals involved in alleged manipulation of LIBOR only be referred to in open court both at the interim stage and at trial using a code.
Held: The order was rejected being an unwarranted derogation from the principles of open justice. There was an obvious and compelling public interest in establishing the true extent to which financial institutions had been engaged in the manipulation of LIBOR.

Judges:

Flaux J

Citations:

[2013] EWHC 67 (Comm)

Links:

Bailii

Citing:

See Also – Graiseley Properties Ltd and Others v Barclays Bank Plc ComC 29-Oct-2012
The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The . .

Cited by:

Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 19-Feb-2015
The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking, Litigation Practice

Updated: 13 November 2022; Ref: scu.470560

Grove Park Properties Ltd v The Royal Bank of Scotland Plc: ComC 18 Dec 2018

The defendant bank sought to have excluded allegations of its senior officers putting forward false and misleading cases to support its own claim for similar behaviour in defending its interest rate swap claim.

Citations:

[2018] EWHC 3521 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Litigation Practice

Updated: 12 November 2022; Ref: scu.631429

Sina Bank v Council: ECFI 18 Oct 2016

ECJ (Judgment) Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Actions for annulment – Period allowed for commencing proceedings – Amendment of pleadings – Admissibility – Obligation to state reasons – Rights of defence – Right to effective judicial protection – Manifest error of assessment – Adjustment of the effects in time of an annulment

Citations:

ECLI:EU:T:2016:619, [2016] EUECJ T-418/14

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Sina Bank v Council ECFI 11-Dec-2012
ECFI Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Actions for annulment – Duty to state reasons. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 12 November 2022; Ref: scu.570147

Sina Bank v Council: ECFI 11 Dec 2012

ECFI Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Actions for annulment – Duty to state reasons.

Judges:

I Pelikanova R

Citations:

T-15/11, [2012] EUECJ T-15/11

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Sina Bank v Council ECFI 18-Oct-2016
ECJ (Judgment) Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Actions for annulment – Period allowed for . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 12 November 2022; Ref: scu.467088

Den Norske Bank Asa v Acemex Management Company Ltd: CA 7 Nov 2003

Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken caused additional losses.
Held: The Bank’s actions constituted a breach of the obligation to allow the mortgagor to enter into and perform engagements for the employment of the vessel and such breach amounted to an arguable defence to the claim. The Bank were, however entitled to take the view that releasing the vessel from arrest and permitting her to travel with her cargo on board was fraught with risk, and the defendants had no prospect of establishing at trial that the Bank owed a duty of care to the defendants in deciding when to arrest the vessel or in deciding whether to release the vessel from arrest. Appeal dismissed.

Judges:

Lord Justice Brooke Lord Justice Longmore Lord Justice Jacob

Citations:

[2003] EWCA Civ 1559, [2004] 1 LLR 1, [2004] 1 Lloyd’s Rep 1, [2004] 1 All ER (Comm) 904

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – De Mattos v Gibson 1859
The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest. . .
Cited – Johnson v Royal Mail Steam Packet Co 1867
‘Without entering into the question of mortgages of land further than to say we have given it out consideration – the case of a mortgagee and mortgagor of a ship appears to be one of a quite different complexion, because the mortgagee so long as he . .
Cited – The Myrto ChD 1977
A ship had been charged. A third party sought to arrest the ship for a debt.
Held: ‘Where the owner makes a contract with a third party for the employment of the ship, of such a kind and made or performable in such circumstances, that the . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Meftah v Lloyd’s TSB Bank Plc 2001
A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property. . .
Appeal from – Den Norske Bank ASA v Acemex Management Company Ltd ComC 26-Feb-2003
. .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 12 November 2022; Ref: scu.187552

Haswani v Council (Judgment): ECFI 16 Dec 2020

Common foreign and security policy – Restrictive measures taken against Syria – Freezing of funds – Res judicata authority – Time-limit for bringing an appeal – Obligation to state reasons – Error of assessment – Proportionality

Citations:

ECLI:EU:T:2020:608, T-521/19, [2020] EUECJ T-521/19

Links:

Bailii

Jurisdiction:

European

Banking

Updated: 10 November 2022; Ref: scu.660729

Architects of Wine Ltd v Barclays Bank Plc: CA 20 Mar 2007

The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an assumption of negligence, just because a bank bears the burden of showing that it took reasonable care. The enquiry is fact sensitive. Current banking practice is highly relevant to the issue of negligence. A bank’s evidence about its practice is, especially if unchallenged, relevant evidence of the current practice of bankers. A court is not bound by such evidence, but it will be hesitant to reject it. Notice of what is so out of the ordinary course of events as to arouse doubts in a banker’s mind or put him on enquiry is a relevant test of negligence, and may make the proof of the taking of reasonable care very difficult. However, the courts should be wary of hindsight or of imposing on a bank the role of an amateur detective. ‘ The court was not in a position to reject the bank’s evidence without a trial, and the summary judgment was set aside.

Judges:

Sir Mark Pooer, (FD P), Rix LJ, Wilson LJ

Citations:

[2007] EWCA Civ 239, [2007] 2 Lloyd’s Rep 471, [2007] Bus LR D37

Links:

Bailii

Statutes:

Cheques Act 1957 4

Jurisdiction:

England and Wales

Citing:

Cited – Commissioners of State Savings Bank v Permewan, Wright and Co 18-Dec-1914
(High Court of Australia) The court considered the nature of negligence in a banker: ‘the test of negligence is whether the transaction of paying in any given cheque [coupled with the circumstances antecedent and present] was so out of the ordinary . .
Cited – Marfani and Co Ltd v Midland Bank Ltd CA 1968
A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer.
Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that . .
Cited – Ross v London County Westminster and Parr’s Bank 1919
Bailhache J considered the standards to be expected of a bank clerk: ‘I must attribute to the cashiers and clerks of the defendants the degree of intelligence and care ordinarily required of persons in their position to fit them for the discharge of . .
Cited – Commissioners of Taxation v English, Scottish and Australian Bank Limited PC 2-Jan-1920
The Board considered what would amount to negligence in a bank.
Held: The test in Permewan was to be applied by ‘the standard to be derived from the ordinary practice of bankers, not individuals.’ A customer of the bank is a person who has a . .
Cited – A L Underwood Ltd v Bank of Liverpool and Martins CA 1924
Scrutton LJ considered the concept of exceptional circumstances in a banking context: ‘If banks, for fear of offending their customers will not make inquiries into unusual circumstances, they must take with the benefit of not annoying their customer . .
Cited – The Honourable Society of the Middle Temple v Lloyds Bank plc and Another QBD 8-Feb-1999
Where a cheque marked ‘a/c payee only’ had been stolen, and an English clearing bank collected it as agent for a foreign bank not acting for the payee, that bank was liable for the misrepresentation involved in the presentation. Where a bank asks . .
Cited – Lloyds Bank Limited v The Chartered Bank of India, Australia and China CA 1929
Sankey LJ said: ‘a bank cannot be held to be liable for negligence merely because they have not subjected an account to a microscopic examination. It is not to be expected that the officials of banks should also be amateur detectives.’ . .
Cited – Lloyds Bank Limited v E B Savory and Company HL 1932
The bank was held to be negligent (depriving it of the protection of section 82) not to ask a customer though respectively introduced the name of his employer and in the case of a married woman the name of her husband’s employer. Whether a bank was . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 09 November 2022; Ref: scu.250272

Scotlife Home Loans (No 2) Limited v Melinek and Melinek: CA 9 Sep 1997

The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ firm.
Held: After a trial over several days, the judge had considered and rejected each of the second defendant’s defences. In a case of fraud, one or other of the claimant or the second defendant must lose out. Though the judge had found influence on the part of the husband, he had not found the manifest disadvantage to the second defendant required to found a claim of undue influnce. However following Stepsky, she had an arguable claim that the claimant was fixed with notice of the fraud perpetrated by its agents. Leave to appeal granted.

Judges:

Lord Justice Nourse, Lord Justice Evans

Citations:

[1997] EWCA Civ 2335

Jurisdiction:

England and Wales

Citing:

Cited – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another CA 1-Dec-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
See also – In Re Melinek (A Bankrupt); Bristol & West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt) ChD 10-Apr-1997
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consent should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The . .
Full Appeal – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 16-Dec-1997
The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.

Cited by:

See also – In Re Melinek (A Bankrupt); Bristol & West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt) ChD 10-Apr-1997
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consent should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The . .
Leave granted – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 16-Dec-1997
The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 09 November 2022; Ref: scu.142733

Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department: CA 23 Jul 1997

The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes liable to B as a joint tortfeasor with C in the tort of deceit practised by C on B on the basis that A and C have a common design to defraud B and A renders assistance to C pursuant to and in furtherance of the common design, does D, A’s employer, become vicariously liable to B, simply because the act of assistance, which is not itself the deceit, is in the course of A’s employment with D? An employer was not liable for the fraudulent acts of his employee during the employment but may be for purposes of fraud by third party.
Hobhouse LJ said: ‘Mere assistance, even knowing assistance, does not suffice to make the ‘secondary’ party liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort . . ; or he must have joined in the common design pursuant to which the tort was committed’

Judges:

Stuart-Smith LJ, Hobhouse LJ

Citations:

Times 04-Aug-1997, Gazette 10-Sep-1997, [1998] 1 Lloyd’s Rep 19, [1997] EWCA Civ 2165

Jurisdiction:

England and Wales

Citing:

Appeal from – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department 1996
The Export Credit Guarantee Department was not liable to the Bank for the loss which the Bank sustained due to the fraud of one of its customers in which an employee was involved. . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .

Cited by:

Appeal from – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
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. . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Twentieth Century Fox Film Corporation and Another v Newzbin Ltd ChD 29-Mar-2010
The defendant operated a web-site providing a search facility of the Usenet news system which allowed its users to locate copies of films online for downloading. The claimant said this was an infringement of its copyrights.
Held: The defendant . .
Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Cited – Fish and Fish Ltd v Sea Shepherd UK and Another AdCt 25-Jun-2012
The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed . .
Cited – Fish and Fish Ltd v Sea Shepherd Uk and Others CA 16-May-2013
The claimant company sought damages after their transport of live tuna was attacked by a protest group. They now appealed against a decision that the company owning the attacking ship was not liable as a joint tortfeasor.
Held: The appeal was . .
Cited – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .
Lists of cited by and citing cases may be incomplete.

Employment, Vicarious Liability, Torts – Other, Banking

Updated: 09 November 2022; Ref: scu.80791

Graiseley Properties Ltd and Others v Barclays Bank Plc: ComC 29 Oct 2012

The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The defendant sought a strike out of the claim and a refusal of leave for the claimants to amend their claim.
Held: The defendant’s applications were rejected. The claimant’s case was clearly arguable.

Judges:

Flaux J

Citations:

[2012] EWHC 3093 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Crema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Cited – Cassa Di Risparmio Della Repubblica Di San Marino Spa v Barclays Bank Ltd ComC 9-Mar-2011
The claimant alleged misselling of a complex financial product by the defendant.
Held: Hamblen J set out the relevant principles as to misrepresentation in this context, namely that in a deceit case, the representor should understand that he . .
Cited – Mabanga v Ophir Energy Plc and Another QBD 15-Jun-2012
The defendants sought summary judgment strinking out the claims against them in deceit and misrepresentation in the making of an agreement for a sale of the claimant’s share of the net profits in an oil concession.
Held: Before giving summary . .

Cited by:

See Also – Graiseley Properties Ltd and Others v Barclays Bank Plc and Others ComC 24-Jan-2013
The claimants sought damages alleging that the defendant bank had manipulated the LIBOR bank rate whch was used to set interest rates on its loan. The defendant sought guidance as to the form to be taken by its electronic disclosures, and an order . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 06 November 2022; Ref: scu.465548

Heis and Others (Administrators of MF Global UK Ltd) v MF Global Inc: ChD 1 Nov 2012

An investment bank administrator who had been appointed under the 2011 Regulation was strictly analagous to a liquidator being appointed.

Judges:

David RichardsJ

Citations:

[2012] EWHC 3068 (Ch), [2012] WLR(D) 304, [2013] 1 WLR 903, [2013] 1 BCLC 552

Links:

Bailii, WLRD

Statutes:

Investment Bank Special Administration Regulations 2011

Jurisdiction:

England and Wales

Banking, Insolvency

Updated: 06 November 2022; Ref: scu.465530

Ropaigealach and Another v Cheltenham and Gloucester Building Society: CA 20 Mar 1997

The applicants sought leave to appeal against a possession order made for arrears under their mortgage. A possession order had been suspended on an arrangement as to payment. The way the society calculated its payments meant that the arrears continued to climb. After complaint the applicant stopped payments, and complained to the Ombudsman, whose decision led to the respondent writing off all but some arrears which it then sought to be paid in full by return.
Held: The order allowing payment by instalments continued in effect, and the society remained bound by it. Ward LJ said: ‘I do not know whether to characterise this application as a storm in a tea cup, a sledgehammer taken to crack a nut or a comedy of errors. ‘

Judges:

Ward LJ

Citations:

[1997] EWCA Civ 1296

Jurisdiction:

England and Wales

Cited by:

See Also – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 06 November 2022; Ref: scu.141692

Rubenstein v HSBC Bank: CA 12 Sep 2012

Order finalised after successful appeal in bank mis-selling claim.

Judges:

Rix, Lloyd, Moore-Bick LJJ

Citations:

[2012] EWCA Civ 1335

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At first instance – Rubenstein v HSBC Bank Plc QBD 2-Sep-2011
The claimant alleged that the defendant bank has missold to him securities in the form of an AIG Premier Access Bond.
Held: Though the bank had acted negligently and otherwise incorrectly, those faults were not the cause of the substantial . .
Principal judgment – Rubenstein v HSBC Bank Plc CA 12-Sep-2012
The customer appealed after his bank was found to have been negligent in its sales to him of investments, but the losses were found to have derived from general market turmil. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 05 November 2022; Ref: scu.465108

AIC Ltd v Federal Government of Nigeria: QBD 13 Jun 2003

The court was asked: ‘i. whether a judgment against a State may be registered under section 9 of the Administration of Justice Act 1920 and enforced in this country; and
ii. whether moneys in a bank account of a central bank that is a separate legal entity, belonging beneficially to the government of its state, are liable to execution if those moneys are used or intended for use for commercial purposes.’
Held: Stanley Burnton J noted after referring to Alcom, that evidence of recent use of an account wholly for commercial purposes over a significant period of time may lead to the conclusion that the account is used or intended for use wholly for commercial purposes; but the older the use in evidence, the weaker the inference that may be drawn as to the use or intended use of the account. The focus is throughout on actual use. There was evidence that the relevant bank account had been dormant and said that, if an account was dormant for at least 18 months, it cannot be said to be presently used for any relevant purpose, and that the previous use was weak evidence of a present intention as to its use. The evidence was insufficient to disprove the statement in the Certificate.

Judges:

Stanley Burnton J

Citations:

[2003] EWHC 1357 (QB)

Links:

Bailii

Statutes:

Administration of Justice Act 1920 9

Citing:

Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .

Cited by:

Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction

Updated: 05 November 2022; Ref: scu.464930

Jyske Bank Gibraltar Ltd v Administracion Del Estado: ECJ 4 Oct 2012

ECJ Opinion – Combating of money laundering and terrorism financing – Directive 2005/60/EC – Obligation on credit institutions to declare suspicious financial transactions – Institutions operating under the freedom to provide services – Identification of national financial information unit responsible for collecting information – Interpretation of Article 22(2) of Directive 2005/60 – Restriction on the freedom to provide services – Overriding reasons in the public interest – Appropriateness of national legislation for attaining aims in view – Proportionality

Judges:

Bot AG

Citations:

C-212/11, [2012] EUECJ C-212/11

Links:

Bailii

Statutes:

Directive 2005/60/EC

Cited by:

Opinion – Jyske Bank Gibraltar Ltd v Administracion Del Estado ECJ 25-Apr-2013
ECJ Judgment – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive 2005/60/EC – Article 22(2) – Decision 2000/642/JHA – Requirement to report . .
Lists of cited by and citing cases may be incomplete.

European, Banking, Crime

Updated: 05 November 2022; Ref: scu.464807

Rubenstein v HSBC Bank Plc: CA 12 Sep 2012

The customer appealed after his bank was found to have been negligent in its sales to him of investments, but the losses were found to have derived from general market turmil.

Judges:

Rix, Lloyd, Moore-Bick LJJ

Citations:

[2012] EWCA Civ 1184

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rubenstein v HSBC Bank Plc QBD 2-Sep-2011
The claimant alleged that the defendant bank has missold to him securities in the form of an AIG Premier Access Bond.
Held: Though the bank had acted negligently and otherwise incorrectly, those faults were not the cause of the substantial . .

Cited by:

Principal judgment – Rubenstein v HSBC Bank CA 12-Sep-2012
Order finalised after successful appeal in bank mis-selling claim. . .
Lists of cited by and citing cases may be incomplete.

Banking, Professional Negligence

Updated: 05 November 2022; Ref: scu.464227

Esso Petroleum Company Ltd v Milton: CA 5 Feb 1997

A direct debit arrangement is tantamount to a payment by cash and so precludes the use of the defence of set-off for non-payment.

Citations:

Times 13-Feb-1997, [1997] EWCA Civ 927, [1997] 1 WLR 938, [1997] CLC 634

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 05 November 2022; Ref: scu.141323

FBME Bank Ltd v Elwes and Another: QBD 25 Jul 2012

The claimant alleged that the two defendants had entered into guarantees in its favour. The court had found that the debt was only due by instalments commencing one year after the initial demand. The second defendant now argued that he was not liable at all. The company whose credit had been guaranteed had been placed in creditors’ voluntary liquidation. The second defendant argued that no default had yet arisen.
Held: The defendant’s arguments failed. Certain amendments suggested had not been incorporated, and the contract terms were clear and not allowing of further interpretation as requested. Judgment accordingly.

Judges:

Richard Seymour QC J

Citations:

[2012] EWHC 2209 (QB)

Links:

Bailii

Statutes:

Insolvency Act 1986 84(2)

Contract, Banking

Updated: 04 November 2022; Ref: scu.463639

Calvert v Clydesdale Bank Plc and Others: CA 27 Jun 2012

The widow and personal representative of the chargor challenged the enforcement proceedings taken by the bank under a guarantee. The chargor had begun to suffer Alzheimers disease. She now sought leave toappeal saying that to enforce the guarantee, the bank should have applied to appointed receivers under the 1983 Act.
Held: Leave to appeal was refused. The bank had instead appointed receivers under section 109 of the 1925 Act, and ‘as with other cases of agency created by way of or in connection with the giving of security over assets, it does not come to an end on the incapacity of the mortgagor and it does not depend on any act of the mortgagor other than the original creation of the authority. So it does not require the mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. ‘

Judges:

Lloyd LJ

Citations:

[2012] EWCA Civ 962

Links:

Bailii

Statutes:

Mental Health Act 1983, Law of Property Act 1925 109

Jurisdiction:

England and Wales

Citing:

Cited – Sowman v David Samuel Trust ChD 1978
When considering a mortgage created by a corporate debtor, the rights under the debenture are not the property of the mortgagor but that of the mortgagee. It was a case where a company which had created the debenture equivalent to the mortgage had . .
Lists of cited by and citing cases may be incomplete.

Banking, Health

Updated: 04 November 2022; Ref: scu.463148

Haikal v Council (Judgment): ECFI 16 Dec 2020

Common foreign and security policy – Restrictive measures taken against Syria – Freezing of funds – Rights of the defense – Right to a fair trial – Obligation to state reasons – Right to effective judicial protection – Error of assessment – Right to property – Proportionality – Right to exercise an economic activity – Right to respect for private and family life

Citations:

ECLI:EU:T:2020:607, T-189/19, [2020] EUECJ T-189/19

Links:

Bailii

Jurisdiction:

European

Banking, Natural Justice

Updated: 04 November 2022; Ref: scu.660728

Barclays Bank Plc v Thompson: CA 7 Nov 1996

Knowledge acquired by solicitors whilst tendering independent advice to a signatory did not come to them as agents for the lenders because at that time their professional duty was owed to the signatory alone. Simon Brown LJ said: ‘The starting point for consideration of these rival arguments must be the trilogy of recent Court of Appeal decisions which clearly establish a bank’s entitlement to rely upon a solicitor’s certificate that proper advice has been given to the signatory of a relevant instrument even though that solicitor acts principally for the very person against whose undue influence the signatory must be guarded . . Was it reasonable to expect a solicitor, in explaining the nature and effect of the document, to give appropriate advice? In my view it was. It is an ordinary incident of a solicitor’s duty to explain the obvious potential pitfalls of legal transactions to those about to take part in them.’

Judges:

Simon Brown LJ

Citations:

[1996] EWCA Civ 893, [1997] 4 All ER 816

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Banking, Undue Influence

Updated: 03 November 2022; Ref: scu.140760

Auld v Glasgow Working Men’s Building Society: HL 15 Feb 1887

Building Society – Withdrawing Member – Resolution of Society to Reduce Sum at Credit of Unadvanced Members Invalid.
The rules of a benefit building society incorporated under the Building Societies Act 1874 provided that any unadvanced or investing member might withdraw the whole or any portion of the sum at his credit in the society’s books after giving certain notice. At the annual general meeting the society approved by a majority of a report by the directors recommending that as the property over which the society held securities had fallen in value, a sum of 7s. 6d. per pounds 1 should be deducted from the amounts at the credit of the members, and placed to a suspense account. There was no rule of the society regulating the manner in which losses were to be borne. Held ( rev. judgment of the Court of Session) that the resolution was ultra vires, and that an unadvanced member who subsequently gave notice of withdrawal was entitled to be paid the whole amount at his credit.

Judges:

Lord Chancellor (Halsbury), Lords Bramwell, Herschell, and Macnaghten

Citations:

[1887] UKHL 486

Links:

Bailii

Jurisdiction:

Scotland

Banking

Updated: 03 November 2022; Ref: scu.636750

JSC BTA Bank v Ablyazov and Others: ComC 4 Jul 2012

The bank had obtained a freezing order. The defendants had claimed four substantial loan agreements, but the Bank asserted that these were shams. The first defendant had been found guilty of contempt, and now seemed to have fled the country.

Judges:

Christopher Clarke J

Citations:

[2012] EWHC 1819 (Comm), [2012] 2 CLC 641, [2012] 2 All ER (Comm) 1243

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – JSC BTA Bank v Ablyazov CA 25-Jul-2013
The claimant bank had an asset freezing order in place over the assets of the defendant. The defendant had in place loan facilities allowing him to draw down substantial amounts as chosen. The claimant appealed from refusal of a declaration that the . .
At first instance – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 03 November 2022; Ref: scu.461920

Aveng (Africa) Ltd v Gabonese Republic and Another: ComC 18 Jun 2012

Application by Citibank NA’s London branch to vary a freezing order made against the Government of the Gabon Republic at the behest of Aveng (Africa) Ltd, which was expressed to apply inter alia to any money and bank accounts held by Gabon with CBL.

Judges:

Field J

Citations:

[2012] EWHC 1687 (Comm)

Links:

Bailii

Banking

Updated: 03 November 2022; Ref: scu.461819

K/S Preston Street v Santander (UK) Plc: ChD 14 Mar 2012

Application by the claimant for summary judgment for an order for payment over to the defendant of pounds 200,000 held in an escrow account pending determination of the defendant’s claim for an indemnity, pursuant to an express provision contained in a fixed term loan agreement between the claimant and the defendant’s assignor. Also the hearing of the defendant’s application for summary judgment in its favour in the sum of pounds 165,580.92 together with interest and costs being the sum it says it is entitled to under the terms of the indemnity contained in the fixed term agreement, to which I have referred: ‘In substance, the issue comes down to this: The loan was repaid early by the claimant. The defendant maintains that, on true construction of the terms of the loan agreement, once early redemption has occurred, it is able to claim – pursuant to the indemnity – losses, including all future losses, calculated on an estimated basis resulting from the early termination of the loan agreement and on that basis is entitled to recover the loss of the contractual rates of interest on the sums loaned for the period of the term. The claimant contends that, on proper construction of the agreement the sums claimed by the defendant are not recoverable under the terms of the indemnity or, alternatively, are not yet recoverable.’

Judges:

Pelling QC HHJ

Citations:

[2012] EWHC 1633 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Banking

Updated: 03 November 2022; Ref: scu.460856

Oakdale (Richmond) Limited v National Westminster Bank Plc: CA 6 Aug 1996

The plaintiff sought to have the bank’s form of debenture deemed anti-competitive under the treaty and void.
Held: The bank’s security finished when the sums due were repaid. It was not a clog on the equity of redemption. A provision against the freedom to give a second charge was appropriate because the charge was a continuing one securing an overdraft. A second charge would take priority over subsequent advances under the debenture. It was also necessary for the bank to take control of the collection of book debts to avoid that part of the charge being a floating charge. The provisions were reasonable and not anti-competitive. The arguments had no prospect of success and leave to appeal was refused.

Citations:

Times 20-Aug-1996, [1996] EWCA Civ 568

Statutes:

EC Treaty 85 86

Jurisdiction:

England and Wales

Citing:

Cited – Gottrup-Klim v Danks Landbrugs Grovvaresekskab AmbA ECJ 1994
‘agreements capable of performing a more complex function will not be regarded as having an anti-competitive object. That applies to clauses which form an integral part of a contract and in that way contribute to defining the basis and the balance . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, European

Updated: 31 October 2022; Ref: scu.140435

Botham and others v TSB Bank Plc: CA 30 Jul 1996

A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a limited extent. ‘The tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. ‘ As to fitted carpets attached by grippers, they were not fixtures, and nor were white goods in the kitchen. Though part of a decoraive scheme of they wre not sufficiently attached.
Sir Richard Scott VC: There is, I think, some danger in applying too literally tests formulated for the purpose of decisions regarding machinery in factories to cases regarding articles in residences. There is a danger, also, in applying too literally tests formulated for the purpose of decisions regarding articles of ornamental value only to cases regarding articles whose prime function is utilitarian.

Judges:

Sir Richard Scott VC, Roch LJ, Henry LJ

Citations:

[1996] EWCA Civ 549

Jurisdiction:

England and Wales

Citing:

Cited – Berkely v Poulett CA 1977
The court discussed the duties of a vendor to the property between exchange and completion: ‘These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive . .
Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Cited – Leigh v Taylor HL 6-Feb-2002
Valuable tapestries had been set up for display in a room in a stately home . They were first stretched over canvas and then tacked to the canvas. That canvas was then stretched over strips of wood and nailed to those strips of wood which in turn . .
Not followed – Young v Dalgety plc CA 1987
A decision had been made at first instance that fitted carpets were fixtures rather than fittings.
Held: The deision was not disturbed. . .
Cited – British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another 18-Apr-1913
Light fittings were not shown by the evidence to be part of the electrical installation in a flat, and therefore were not fixtures but fittings. . .
Cited – Hellawell v Eastwood 1851
In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: ‘The only question, therefore, is, whether the machines when fixed were parcel of the . .
Cited – Melluish (Inspector of Taxes) v BMI (No 3) Ltd and Related Appeals HL 16-Oct-1995
Chattels which became affixed to a lessee’s land became fixtures, and were not available for tax allowances calculations. Lord Browne-Wilkinson said: ‘The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the . .
Lists of cited by and citing cases may be incomplete.

Land, Banking

Updated: 31 October 2022; Ref: scu.140416

National Westminster Bank Plc v Kitch: CA 14 May 1996

An action to recover an overdraft debt which was secured by a mortgage is not itself a mortgage action. A claim based on a simple contract debt does not cease to be so simply because it is also secured by a charge.

Citations:

Gazette 15-May-1996, Times 14-May-1996, [1996] 1 WLR 1316

Statutes:

Rules of the Supreme Court Order 88 1

Jurisdiction:

England and Wales

Cited by:

Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice, Contract

Updated: 31 October 2022; Ref: scu.84218

Credit Lyonnais Bank Nederland NV v Burch: CA 1 Jul 1996

A Bank was to assume that undue influence existed where they knew that an employee was giving security for his employer’s debt to the bank. An unlimited guarantee given by an employee to his employer’s bank was set aside as unconscionable. The circumstances in which the doctrine of unconscionable bargains would apply were similar to those of undue influence. ‘Equity’s jurisdiction to relieve against (unconscionable bargains), although more rarely exercised in modern times is at least as venerable as its jurisdiction to relieve against those procured by undue influence.’ When attending his client to witness such a document, the solicitor must in any event advise her that she is under no obligation to enter into the transaction at all and, if she still wishes to do so, that she is not bound to accept the terms of any document which has been put before her.

Judges:

Nourse LJ

Citations:

Gazette 04-Sep-1996, Times 01-Jul-1996, [1997] 1 All ER 144

Jurisdiction:

England and Wales

Cited by:

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 – 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 . .
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, Undue Influence

Updated: 31 October 2022; Ref: scu.79606

Northern Bank Ltd v Mckinstry and Another: ChNI 22 Mar 2001

Whether a bank’s ‘all monies mortgage’ gives the bank a security over the premises subject to the mortgage in respect of monies due under a regulated consumer credit agreement governed by the Consumer Credit Act 1974 which is not in itself a secured debt but breach of which has led the bank to obtain a judgment for the debt due under the agreement.

Citations:

[2001] NICh 6

Links:

Bailii

Statutes:

Consumer Credit Act 1974

Jurisdiction:

Northern Ireland

Consumer, Land, Banking

Updated: 27 October 2022; Ref: scu.202030

Group Josi v Walbrook Insurance Co.: CA 1996

In the absence of fraud by the seller in presenting documents to the confirming bank seeking payment, the court will not restrain a bank from paying a letter of credit which is payable according to its terms, nor a beneficiary from seeking payment.

Judges:

Staughton LJ

Citations:

[1996] 1 LLR 345

Jurisdiction:

England and Wales

Cited by:

Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 27 October 2022; Ref: scu.200487

Lloyds Bank Plc and others v Cassidy: CA 8 Nov 2002

Judges:

Mance LJ

Citations:

[2002] EWCA Civ 1606

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lloyds Bank v Cassidy CA 26-Jul-2002
Application for leave to appeal – adjourned . .
See Also – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.

Cited by:

See Also – Lloyds Bank v Cassidy CA 26-Jul-2002
Application for leave to appeal – adjourned . .
See Also – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 27 October 2022; Ref: scu.188964

Royal Trust v National Westminster Bank plc: CA 1996

A charge was given over the benefits of hire purchase and leasing agreements. The terms of the charge entitled the chargee to require payments under the agreements to be paid into a special account, but the chargee never in fact did so and the chargor paid them into its own bank account from which it drew for its own purposes. The issue was whether the funds in that account were subject to a trust in favour of the chargee. It was conceded that the charge itself was a fixed charge.
Held: (obiter) This concession was wrongly made.
Millet LJ did not see how it could be possible to separate a debt or other receivable from the proceeds of its realisation. Unless and until the chargee intervened, the chargor had a contractual right to apply the proceeds of the charged assets in the ordinary course of its business. This right was ‘a badge of a floating charge’ and ‘inconsistent with the existence of a fixed charge’.
Millett LJ said: ‘The proper characterisation of a security as ‘fixed’ or ‘floating’ depends upon the freedom of the chargor to deal with the proceeds of the charged assets in the ordinary coure of business free from security. A contractual right in the chargor to collect the proceeds and pay them into its own bank account for use in the ordinary course of business is a badge of a floating charge and is inconsistent with the existence of a fixed charge.’

Judges:

Millett LJ

Citations:

[1996] 2 BCLC 682, [1996] BCC 613

Jurisdiction:

England and Wales

Cited by:

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

Banking

Updated: 27 October 2022; Ref: scu.183203

Banco Exterior Internacional v Mann and Others: CA 19 Dec 1994

A charge to secure a husband’s borrowings was enforceable where the wife’s signature had been taken before a solicitor who had explained it. Hobhouse LJ (dissenting) ‘It must be remembered that the starting point of this exercise is that the wife’s will is being unduly and improperly influenced by the will of her husband. The steps taken have to be directed to freeing her of that influence or, at the least, providing some counterbalance.’

Judges:

Hobhouse LJ

Citations:

Times 19-Dec-1994, [1995] 1 All ER 936

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Governor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 27 October 2022; Ref: scu.78127

Polly Peck International Plc v Nadir and Others: CA 17 Mar 1993

For a bank to be sued for breach of trust after receipt of funds, it was not necessary to show that the bank knew of the fraud, but rather that it knew the funds were trust funds, and that they were being misapplied. A Mareva injunction should be issued against a bank only after great care. It would affect the operation of the bank. An application should normally be by way of a tracing claim rather than a Mareva injunction.

Citations:

Independent 31-Mar-1993, Unreported, 17 March 1993

Jurisdiction:

England and Wales

Citing:

See Also – Polly Peck International Plc v Nadir (No 2) CA 19-Mar-1992
Appeal against the grant of a Mareva injunction.
Lord Donaldson MR said: ‘I therefore turn to the principles underlying the jurisdiction. (1) So far as it lies in their power, the Courts will not permit the course of justice to be frustrated by . .

Cited by:

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

Litigation Practice, Jurisdiction, Banking

Updated: 26 October 2022; Ref: scu.84791

In Re New Bullas Trading Ltd: CA 12 Jan 1994

A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be provided for payment of book debts. However ‘Just as it is open to contracting parties to provide for a fixed charge on future book debts, so it is open to them to provide that they shall be subject to a fixed charge while they are uncollected and a floating charge on realisation. No authority to the contrary has been cited and, the principle being as spacious as it has been expressed to be, no objection is on that account sustainable. For these reasons, I would accept [Counsel’s] second main submission and hold that the charge over book debts of the company, as created by the debenture, was, unless and until their proceeds were paid into the specified account, a valid fixed charge.’

Judges:

Nourse LJ, Russell LJ and Scott Baker J

Citations:

Times 12-Jan-1994, Ind Summary 17-Jan-1994, [1994] 1 BCLC 449

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Reversed – 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 . .
Appealed to – 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 – 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 – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Insolvency

Updated: 26 October 2022; Ref: scu.82072

Depositors’ Protection Board v Dalia and Another: CA 11 May 1993

The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims.

Citations:

Gazette 16-Jun-1993, Independent 18-May-1993, Times 11-May-1993

Statutes:

Banking Act 1987 58(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Depositors Protection Board v Dalia and Another ChD 18-Nov-1992
Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners. . .

Cited by:

Appeal from – Depositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Lists of cited by and citing cases may be incomplete.

Banking, Financial Services

Updated: 26 October 2022; Ref: scu.79921

Continental Bank Na v Aeakos Compania Naviera Sa and Others: CA 26 Nov 1993

The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would be a relatively ineffective remedy. An injunction is the only effective remedy for the appellants’ breach of contract. If the injunction is set aside, the appellants will persist in their breach of contract, and the bank’s legal rights as enshrined in the jurisdiction agreements will prove to be valueless. Given the total absence of special countervailing factors, this is the paradigm case for the grant of an injunction . .’

Judges:

Steyn LJ

Citations:

Ind Summary 13-Dec-1993, Times 26-Nov-1993, [1994] 1 WLR 588

Statutes:

Brussels Convention 1968 Art 17

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Jurisdiction

Updated: 26 October 2022; Ref: scu.79470

Privatbank (Payment Services In The Internal Market – Payment Services Provided In A Currency Other Than The Euro – Judgment): ECJ 2 Apr 2020

Reference for a preliminary ruling – Payment services in the internal market – Directive 2007/64/EC – Material and personal scope – Payment services provided in a currency other than the euro or the currency of a Member State outside the euro area – Payment services provided by a credit institution – Non-execution or defective execution of a payment order – Person liable – Prudential supervision procedure – Complaint procedures – Out-of-court-redress – Competent authorities

Citations:

C-480/18, [2020] EUECJ C-480/18, ECLI:EU:C:2020:259, [2019] EUECJ C-480/18_O

Links:

Bailii, Bailii

Jurisdiction:

European

Banking

Updated: 26 October 2022; Ref: scu.660147

Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB (Order) C-114/20: ECJ 17 Dec 2020

Appeal – Interim order – Economic and monetary policy – Regulation (EU) No 1024/2013 – Prudential supervision of credit institutions – Specific missions entrusted to the European Central Bank (ECB) – Decision to withdraw the authorization a credit institution

Citations:

C-114/20, [2020] EUECJ C-114/20P(R)_CO, [2020] EUECJ C-114/20P(R)_CO

Links:

Bailii, Bailii

Jurisdiction:

European

Banking

Updated: 26 October 2022; Ref: scu.660693

Global Asset Capital, Inc and Another v Aabar Block Sarl and Another: ComC 18 Feb 2016

Judges:

Walker J

Citations:

[2016] EWHC 298 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Global Asset Capital, Inc and Another v Aabar Block Sarl and Others CA 1-Feb-2017
Appeal against refusal of summary judgment. The court set out the applicable principles concerning strike out and summary judgment: ‘(1) The court must consider whether the case of the respondent to the application has a realistic as opposed to . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 26 October 2022; Ref: scu.560179

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.

Judges:

Evans-Lombe J

Citations:

[1999] EWHC Ch 206, [2000] 1 WLR 98

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contract Regulations 1994, Consumer Credit Act 1974

Jurisdiction:

England and Wales

Cited by:

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

Banking, Consumer

Updated: 25 October 2022; Ref: scu.162975

Jarrett v Barclays Bank Plc, Royal Bank of Scotland Plc and Jones v First National Bank Plc and Peacock v First National Bank Plc: CA 31 Oct 1996

Time share lettings are not rights in rem. UK consumer law applies to loans made for their purchase, and UK banks are liable for misrepresentations made by foreign companies if they are providing the finance.

Judges:

Morris Ward, Potter LJJ

Citations:

Times 18-Nov-1996, Gazette 12-Feb-1997, [1996] EWCA Civ 847, [1999] QB 1, [1997] CLC 391, [1997] ILPr 531, [1997] 3 WLR 654

Links:

Bailii

Statutes:

Consumer Credit Act 1974 56(2) 75, Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395) Art 16

Jurisdiction:

England and Wales

Banking, Consumer

Updated: 25 October 2022; Ref: scu.140714

Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others: ChD 31 Mar 1999

A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second charge to an equitable charge.

Citations:

Times 31-Mar-1999, Gazette 19-May-1999

Jurisdiction:

England and Wales

Citing:

Applied – Equity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4) ChD 13-Jun-2000
An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the . .

Cited by:

See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4) ChD 13-Jun-2000
An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 25 October 2022; Ref: scu.83126

De Masi and Varoufakis v ECB (Appeal – Access To European Central Bank (ECB) Documents – Judgment): ECJ 17 Dec 2020

Appeal – Access to European Central Bank (ECB) documents – Decision 2004/258/EC – Article 4(3) – Exceptions – Document received by the ECB – Opinion from an external service provider – Internal use as part of deliberations and preliminary consultations – Refusal to grant access

Citations:

ECLI:EU:C:2020:1035, C-342/19, [2020] EUECJ C-342/19P

Links:

Bailii

Jurisdiction:

European

Information, Banking

Updated: 25 October 2022; Ref: scu.660711

Youssef v Secretary of State for Foreign and Commonwealth Affairs: CA 29 Oct 2013

The claimant appealed from rejection of his judicial review of a decision that he be placed on a list of persons subject to sanctions and therefore without access to money save with the consent of the government.
Held: The Secretary of State was responsible for the lawfulness of his own reasons, but not in effect for policing the reasoning of other member states.
Laws LJ said that ‘the court cannot ignore an established rule of international law, far less one which has the force of ius cogens erga omnes’, and declined therefore to base his decision on the proposition that ‘the Government’s conduct of foreign relations enjoys something close to an immunity from judicial review’. He continued: ‘The true answer to Mr Otty’s argument on ground 2 rests in my judgment on the facts of the case. In R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 I said: ‘[T]he status of ius cogens erga omnes empowers but does not oblige a state to intervene with another sovereign state to insist on respect for the prohibition of torture (para 151 of Prosecutor v Furundzija) . .’
But Mr Otty’s submission entails an obligation on the Secretary of State so to intervene. Given that the Foreign Secretary’s own reasons for lifting the hold were not tainted by torture evidence, there is nothing in Mr Otty’s case save an insistence that the United Kingdom should, in effect, have stymied the designation because other states were not so pure. The law did not require him to do so.’
Laws LJ held that the necessary authority was provided by the European regulation: ‘I accept that if the Foreign Secretary’s release of the hold on the claimant’s designation rested solely on the Prerogative power, then it would appear to have been done without legal authority. But that is not the position. As a matter of domestic law the Foreign Secretary was obliged to apply the Consolidated List regime to its proper subjects by force of article 2(1), (3) of and Annex I to Regulation 881/2002. There might be an argument on the question whether the general words of the European Communities Act 1972, by virtue of which the Regulation has the force of law in the United Kingdom, are sufficient to authorise the EU legislature to empower or require the Secretary of State to deprive an individual of access to any economic resources (with or without proper proof of what was said against him); but no such argument has been run in this or any case, and it would plainly not be appropriate to canvass it now.’

Judges:

Maurice Kay VP CA, Laws, Sullivan LJJ

Citations:

[2013] EWCA Civ 1302, [2014] 2 WLR 1082, [2013] WLR(D) 412, [2014] 1 QB 728

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Youssef and Others v The Secretary of State for Foreign and Commonwealth Affairs Admn 14-Nov-2011
The claimant sought to challenge the continued inclusion of his name on a list of persons subject to restrictions for showing sympathy to al Qaida, asking at this hearing: ‘Whether the Secretary of State’s decision to propose the relevant Claimant . .
Appeal from – Youssef, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 23-Jul-2012
The claimant challenged having been listed as an associate of Al-Qaida, with the resulting freezing of assets and a travel ban.
Held: His request for judicial review failed.
Toulson LJ deprecated the ‘tendency on the part of lawyers . . . .
Cited – Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .

Cited by:

Appeal from – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 24 October 2022; Ref: scu.517025

Czarnikow-Rionda Sugar Trading Inc v Standard Bank London Ltd and Others: ComC 6 May 1999

ComC Rionda (claimant) obtained ex parte injunction from Tuckey J under the ‘clear fraud exception’ (Edward Owen) to prevent its bank, Standard (first defendant), from paying out under three letters of credit to two Swiss banks (non-parties) who had confirmed the credits and had discounted the deferred payments due under them in part directly to the beneficiary (Vivalet, fifth defendant) and in part under back to credits to the third party suppliers of alcohol. The Swiss banks applied to discharge the injunction inter partes.
Held: injunction discharged. (1) Even assuming the clear fraud exception to have been made out, the balance of convenience was in favour of discharge: Harbottle, UTC, GKN applied, Themehelp v West distinguished; (2) Semble, the clear fraud exception does not rest simply on the court’s concern to prevent fraud, but on an implied term that a bank will not act in pursuance of a credit if it has not had timely notice of a clear fraud by the beneficiary. Bolivinter, UCM and Deutsche v Walbrook considered; (3) In the present case, it was doubtful whether Rionda was entitled to invoke the fraud exception, since (i) it had not sought to rescind its contracts until after the documents had been negotiated and the goods supplied; and (ii) notice of the fraud had not come to the banks until after the documents had been negotiated and the beneficiary had received the benefit of the transactions; (4) There was misrepresentation of Rionda’s financial situation and non-disclosure of the close cooperation, possibly amounting to collusion, between Rionda and Standard.

Judges:

Rix J

Citations:

[1999] 1 All ER (Comm) 890, [1999] 2 Lloyd’s Rep 187, [1999] Lloyd’s Rep Bank 197, [1999] CLC 1148, Independent 14-Jun-1999

Jurisdiction:

England and Wales

Banking

Updated: 23 October 2022; Ref: scu.225406

Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB (Order) C-207/20: ECJ 17 Dec 2020

Appeal – Interim order – Economic and monetary policy – Regulation (EU) No 1024/2013 – Prudential supervision of credit institutions – Specific missions entrusted to the European Central Bank (ECB) – Decision to withdraw the authorization a credit institution – New request

Citations:

ECLI:EU:C:2020:1057, C-207/20, [2020] EUECJ C-207/20P(R)_CO, [2020] EUECJ C-207/20P(R)_CO

Links:

Bailii, Bailii

Jurisdiction:

European

Banking

Updated: 22 October 2022; Ref: scu.660692

Saleh Thabet and Others v Council: ECJ 3 Dec 2020

Appeal – Restrictive measures adopted in view of the situation in Egypt – Freezing of funds and economic resources – List of the persons, entities and bodies covered by the freezing of funds and economic resources – Maintenance of the applicants’ names – Decision of an authority of a third State – Obligation of the Council of the European Union to verify that that decision was taken in accordance with the rights of the defence and the right to effective judicial protection – Obligation to state reasons

Citations:

ECLI:EU:C:2020:992, C-72/19, [2020] EUECJ C-72/19P

Links:

Bailii

Jurisdiction:

European

International, Banking

Updated: 22 October 2022; Ref: scu.660751

Tony Mekwin MTV (and Co) v National Westminster Bank Plc: CA 9 Jul 1997

The claimant sought damages after his mastercard was wrongly retained by a suspicious petrol station attendant acting upon the instructions of the defendant.
Held: There was no liability. The claimant was understanadbly upset but he had suffered no loss, and the card itself was the property of the Bank.

Citations:

[1997] EWCA Civ 2074

Jurisdiction:

England and Wales

Contract, Banking

Updated: 21 October 2022; Ref: scu.142471

Bank Refah Kargaran v Council (Appeal – Action for Damages – Restrictive Measures Taken against Iran – Opinion): ECJ 28 May 2020

(Opinion) Appeal – Action for damages – Restrictive measures taken against Iran – Article 29 TEU – Article 215 TFEU – Jurisdiction of the Court to hear an action seeking compensation – Compensation for the damage allegedly suffered by the applicant as a result of the inclusion of its name in various lists of restrictive measures – Possibility of obtaining compensation for a breach of the obligation to state reasons

Citations:

C-134/19, [2020] EUECJ C-134/19P_O, ECLI:EU:C:2020:396, [2020] EUECJ C-134/19P

Links:

Bailii, Bailii

Jurisdiction:

European

Banking, International

Updated: 20 October 2022; Ref: scu.660172