Category: Banking

JP Morgan Chase Bank Na v The Federal Republic of Nigeria: CA 8 Oct 2019

Judges:

Lady Justice Rose

Citations:

[2019] EWCA Civ 1641

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 August 2022; Ref: scu.642672

Bournemouth and Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc: CA 28 Jun 2004

Judges:

Thorpe, Jonathan Parker LLJ

Citations:

[2004] EWCA Civ 935

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Bournemouth and Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc CA 10-Dec-2003
Appeal from refusal of extension of time to serve particulars of claim and strike out. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 August 2022; Ref: scu.427736

Marketmaker Beijing Co Ltd and others v CMC Group Plc and others: QBD 8 Oct 2004

Interim injunctions had been obtained to prevent the defendants carrying out certain banking transactions.
Held: The remedy sought and the claim was extravagant and unlikely to succeed. The injunctions should be discharged. It was not at all clear that the information sought to be protected was confidential according to the evidence, and an injunction was not required to protect documentation pending any trial.

Judges:

Stanley Burnton J

Citations:

[2004] EWHC 2208 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Suhner and Co AG v Transradio Ltd 1967
The claimants complained at the defendant having registered a company under the name ‘Suhner’. The defendants gave no justification for using the word ‘Suhner’ as part of their name. They claimed that they had the right to form a company in order to . .
Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
Cited – PA Thomas and Co v Mould QBD 1968
The court urged caution in the grant of an injunction to protect information for which confidence was claimed but where that claim might not succeed. O’Connor J refused to enforce by committal an injunction restraining the defendants from making use . .
Cited – John Zink and Co Limited v Wilkinson CA 1973
Where a party alleged breach of confidence, the pleadings should be sufficiently particular to allow a defendant to know the particular allegations he faced. . .

Cited by:

See Also – Marketmaker Technology Ltd and others v CMC Group Plc and others QBD 12-Jun-2008
(Order discharged on appeal) . .
See Also – Marketmaker Technology (Beijing) Co Ltd and Others v CMC Group Plc and Others QBD 24-Jun-2009
The claimants sought the committal of the fourth defendant for contempt having broken his undertaking to the court to provide details of his means.
Held: The terms of the undertaking were not ambiguous and could not be read in the way . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 29 August 2022; Ref: scu.215941

Frost v James Finlay Bank Ltd: CA 23 May 2002

The claimant sought damages from the respondent bank for negligence in the arrangements to loan money to her for the development of property. The loan was completed despite the absence of confirmation of insurance. The development was halted when structural damage was found. The borrowings spiraled out of control. She alleged that the bank had failed to disclose the defects discovered. Had the bank taken on a duty in advising her to change insurers, and thus assuming the duties of a broker, which it then failed. The bank appealed.
Held: The claim of a duty of care was not properly pleaded, nor supported in evidence. The appeal must be allowed.

Citations:

[2002] EWCA Civ 667

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Professional Negligence

Updated: 29 August 2022; Ref: scu.172237

McGinn v Grangewood Securities Ltd: CA 23 Apr 2002

The lender used part of the loan to repay a small amount of arrears of the claimant on another loan. The part so used was not part of the objective of the loan, but one of the costs of obtaining it.
Held: The deduction was properly part of the true cost of the credit, and so was not part of the credit. As a consequence, the consumer loan, and the charge securing it, were void and unenforceable. The purpose of section 127(3), which may work harshly against a creditor, is to ensure that the amount of credit is correctly stated.

Judges:

Lord Justice Kennedy, Lord Justice Clarke and Lady Justice Hale

Citations:

Times 30-May-2002, [2002] EWCA Civ 522, [2003] CCLR 11

Links:

Bailii

Statutes:

Consumer Credit (Total Charge for Credit) Regulations 1980 (SI 1980 No 51) 4(2), Consumer Credit Act 1974 9(4) 127(3)

Jurisdiction:

England and Wales

Citing:

Cited – Watchtower Investments Ltd v Payne and Another CA 20-Jul-2001
The mortgagor borrowed funds against the charge, and part of the condition of the loan was that any arrears on the first charge must be discharged. The total amount of the loan was calculated to include sufficient to discharge the arrears on the . .

Cited by:

Cited – Wilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Cited – Southern Pacific Mortgage Ltd v Heath CA 5-Nov-2009
The court considered the effect of an agreement within the 1974 Act falling into more than one category of agreement. Part was used to be used for the repayment of an existing mortgage (restricted use credit), and part was unrestricted. The question . .
Cited – Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 29 August 2022; Ref: scu.171344

Guy v Barclays Bank Plc: CA 8 Dec 2010

In an earlier action the claimant said that he had been defraused of land by a forged transfer. The transfereee had charged the land to the respondent bank who in that action gained a decision that its charge was effective, the transfer being voidable, not void. He sought to bring a new action.
Held: The application did not fall with Taylor v Lawrence, and must fail.
Lord Neuberger MR did not consider the merits, but said: ‘It . . seems clear that Lloyd LJ’s analysis proceeded on the basis that the alleged ‘mistake’ for the purposes of para 2(1) of schedule 4 to the 2002 Act was the registration of the Charge in the charges registers. However, there are other ways of putting Mr Guy’s case, namely (a) that the removal of his name from the proprietorship register was a mistake, and, in order to correct that mistake, the Charge would have to be removed from the charges register, or (b) that the registration of the Charge flowed from the mistake of registering the Transfer, and therefore should be treated as part and parcel of that mistake.’

Judges:

Lord Neuberger MR, Patten, Black LLJ

Citations:

[2010] EWCA Civ 1396

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Barclays Bank Plc v Guy ChD 16-Jan-2008
The defendant owned development land in Manchester. Under a transfer apparently signed by him the land came to be registered in the name of a company called Ten Acre Ltd, creating a charge in favour of Barclays Bank, which was duly registered on the . .
See Also – Barclays Bank Plc v Guy CA 9-Apr-2008
The bank had sought and obtained an order recognising the vaidity of its charge over the land. The land had belonged to the defendant, but he said that the property had been registered by a fraudulen ttransfer, and charged by the transferee in the . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .

Cited by:

Cited – Gold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .
Lists of cited by and citing cases may be incomplete.

Banking, Registered Land

Updated: 28 August 2022; Ref: scu.426903

Rio Football Services Hungary Kft v Sevilla Futbal Club Sad: QBD 6 Oct 2010

The defendant sought leave to appeal against summary judgment on several elements of a claim under a football player financing agreement, arguing that the claims were made under a penalty provision, and otherwise. It was also said that the agreements amounted to an enslavement of the player.
Held: Leave was refused. Whilst the literal meaning of the contract might be absurd it could be interpreted without difficulty to provide a commercial result: ‘if a literal reading of the language of a contract leads to an absurd result, and one which reflects an intention which the parties could never have had, the law does not require a court to attribute to the parties such an intention.’ The contract imposed no constraints on the options of the player.

Judges:

Edwards-Stuart J

Citations:

[2010] EWHC 2446 (QB)

Links:

Bailii

Citing:

Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 25 August 2022; Ref: scu.424948

Brophy v HFC Bank: QBD 22 Mar 2010

The customer sought to appeal against a finding of liability for the debt on his credit card, and that the credit card agreement which operated between Mr Brophy and the bank for a period of some 14 years, from 1994 to 2008, was a valid and enforceable agreement.
Held: The appeal failed.

Judges:

Flaux J

Citations:

[2010] EWHC 819 (QB)

Links:

Bailii

Statutes:

Consumer Credit Act 1974 59(1)

Citing:

Approved – Hurstanger Ltd v Wilson 2006
(Coventry County Court) Michael Douglas discussed the 1983 Regulations, saying: ‘The 1983 Regulations prescribe, among other things, the minimum contents of a regulated agreement, the information which must be brought to the attention of the . .

Cited by:

Appeal from – HSBC Bank Plc v Brophy CA 2-Feb-2011
The customer appealed against an order finding that his credit card agreement was binding upon him.
Held: The appeal failed. His argument that the application form amounted only to an invitation to treat, and that the contract was one made by . .
Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 25 August 2022; Ref: scu.424872

Louis Castrique v Guiseppe Buttigieg: PC 27 Nov 1855

The liability of an indorser to his immediate indorsee arises out of a contract between them, and this contract in no instance consists exclusively in the writing popularly called an indorsement, vhich is necessary to the existence of the contract in question but arises out of the written indorsement itself ;

Citations:

[1855] UKPC 26

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Contract

Updated: 24 August 2022; Ref: scu.424613

Global Financial Recoveries Ltd v Jones: ChD 13 Jan 2000

The defendant entered into a mortgage loan. The property was repossessed and he faced an action for recovery of the shortfall. It was argued that the claim was out of time after six years. The court held that the debt remained a specialty debt and the twelve year period applied, but nevertheless, the actual claimant claimed under an assignment which had assigned only the personal element of the debt, but not the benefit of the covenant within the mortgage deed. An assignment of the debt alone operated to assign that debt, and not the right given under the mortgage, and so a claim under the assignment was limited as under contract.

Citations:

Gazette 13-Jan-2000, Times 23-Feb-2000, [2000] BPIR 1029

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land, Banking, Limitation

Updated: 24 August 2022; Ref: scu.80875

Kotonou v National Westminster Bank Plc: ChD 5 Jul 2010

Citations:

[2010] EWHC 1659 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – National Westminster Bank Plc v Kotonou and Another ChD 19-Jun-2006
. .
See Also – National Westminster Bank Plc v Kotonou CA 26-Feb-2007
. .
See Also – National Westminster Bank v Kotonou ChD 11-Dec-2009
. .

Cited by:

Appeal from – Kotonou v National Westminster Bank Plc CA 30-Oct-2015
Appeal against summary dismissal of claim against the bank based on Henderson v Henderson.
Gloster LJ, commented on Buxton LJ’s observations in the Taylor Walton case: ‘Thus, in my view, what is required in the present case is ‘an intense focus . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 21 August 2022; Ref: scu.420391

Clarke v Coutts and Co: CA 17 Jun 2002

The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order absolute. The claimant was not represented at that hearing. Several years later he sought to set aside the order. At first instance the judge said that the court retained a discretion, and ex debito justiciae, the order should stand. The claimant appealed.
Held: The statute did not allow for any such discretion. Rule 3.2 allowed discretion in cases of procedural error, but this was statutory. The order absolute remained valid until set aside, but the right to have it set aside was equally absolute. The nisi order was a temporary order made complete on order absolute. It was therefore a continuing action within the section. The order absolute was therefore void, and since the order nisi was conditional upon it, that fell away also.

Judges:

Lords Justice Simon Brown and Peter Gibson and Sir Murray Stuart-Smith

Citations:

Gazette 27-Jun-2002, [2002] EWCA Civ 943, [2002] BPIR 916

Links:

Bailii

Statutes:

Insolvency Act 1986 252(2), Civil Procedure Rules 3.2

Jurisdiction:

England and Wales

Citing:

Applied – Roberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
Applied – Calor Gas v Piercy 1994
. .
Overruled – Haly v Barry CA 1868
A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor’s estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but . .
See Also – Clarke v Coutts and Co (A Firm) CA 17-Jun-2002
The court refused to allow a very late amendment raising a new point. . .

Cited by:

See Also – Clarke v Coutts and Co (A Firm) CA 17-Jun-2002
The court refused to allow a very late amendment raising a new point. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking, Civil Procedure Rules

Updated: 20 August 2022; Ref: scu.174167

English and Scottish Mercantile Investment Co Ltd v Brunton: CA 1892

A debenture contained provisions that would normally have created a simple floating charge but which included a restriction on the chargor company from granting any prior charge on the assets in question. The chargor subsequently granted a charge over a fund that was one of those assets. The only issue was whether the chargee of the fund, who was aware of the existence of the debenture, had constructive knowledge of the restriction.
Held: He did not, but had the chargee had such knowledge, its security would have ranked after the debenture.

Citations:

[1892] 2 QB 700

Jurisdiction:

England and Wales

Cited by:

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

Banking, Company

Updated: 20 August 2022; Ref: scu.198019

Wirth v Weigel Leygonie and Co Ltd: CA 1939

Du Parcq LJ said: ‘I doubt whether a promise to pay to a man or to somebody else, who may be his creditor or debtor is a promissory note.’

Judges:

Du Parcq LJ

Citations:

[1939] 3 All ER 712

Jurisdiction:

England and Wales

Cited by:

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

Banking

Updated: 20 August 2022; Ref: scu.550148

Perpetual Executors and Trustees Association of Australia Limited v Swan and Others: PC 3 Aug 1898

Victoria – The Board was asked wheter within the applicable laws of the Colony of Victoria, the placing of trust funds with banks fulfilling certain conditions was an authorised investment or not.

Judges:

Macnaghton, Morris, James of Hereford, LL, ir Henry Strong

Citations:

[1898] UKPC 53, [1898] AC 763

Links:

Bailii

Commonwealth, Trusts, Banking

Updated: 19 August 2022; Ref: scu.417184

Raiffeisen Zentralbank Osterreich Ag v The Royal Bank of Scotland Plc: ComC 11 Jun 2010

The court was asked whether certain provisions fell within section 3 of the Misrepresentation Act.
Held: Christopher Clarke J referred to dicta of Gloster J and said: ‘In Springwell Gloster J took the view that terms which simply defined the basis upon which the parties were transacting business did not fall within section 2 of UCTA; otherwise, as she said, all contractual terms that did so would have to satisfy the test of reasonableness. It is obviously advantageous that commercial parties of equal bargaining power should be able to agree what responsibility they are taking (or not taking) towards each other without having to satisfy some reasonableness test. At the same time there is a danger that the ‘ingenuity of the draftsman’ will insert into a myriad of contracts a clause to the effect that the basis upon which the parties are contracting is that no representations have been made, are intended to be relied on or have been relied on, as a means of evading liability which is intended to be impregnable.
In this respect the key question, as it seems to me, is whether the clause attempts to rewrite history or parts company with reality. If sophisticated commercial parties agree, in terms of which they are both aware, to regulate their future relationship by prescribing the basis on which they will be dealing with each other and what representations they are or are not making, a suitably drafted clause may properly be regarded as establishing that no representations (or none other than honest belief) are being made or are intended to be relied on. Such parties are capable of distinguishing between statements which are to be treated as representations on which the recipient is entitled to rely, and statements which do not have that character, and should be allowed to agree among themselves into which category any given statement may fall.
Per contra, to tell the man in the street that the car you are selling him is perfect and then agree that the basis of your contract is that no representations have been made or relied on, may be nothing more than an attempt retrospectively to alter the character and effect of what has gone before, and in substance an attempt to exclude or restrict liability’.

Judges:

Christopher Clarke J

Citations:

[2010] EWHC 1392 (Comm), [2010] 1 Lloyds Rep 123

Links:

Bailii

Statutes:

Misrepresentation Act 1967 3, Unfair Contract Terms Act 1977

Citing:

Cited – JP Morgan Chase Bank and others v Springwell Navigation Corporation Comc 27-May-2008
The company alleged negligence by its financial advisers.
Held: Gloster J said that the absence of a written advisory agreement is a strong pointer against the existence of a free-standing duty of care to give investment advice.
Gloster . .

Cited by:

Cited – Springwell Navigation Corporation v JP Morgan Chase Bank and Others CA 1-Nov-2010
The court was asked as to whether representations has been made.
Held: Aikens LJ referred to a provision stating ‘no representation or warranty, express or implied, is or will be made . . in or in relation to such documents or information’, . .
Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 19 August 2022; Ref: scu.416636

Shah and Another v HSBC Private Bank (UK) Ltd: QBD 16 May 2012

The Claimants claimed damages in a sum in excess of US$300,000,000 arising out of delays by the Defendant, their bankers, in executing four transfers from the Claimants’ account during the period September 2006 to March 2007 and the Defendant’s failure to explain the reasons for such delays.

Judges:

Supperstone J

Citations:

[2012] EWHC 1283 (QB), [2013] Bus LR D38, [2013] 1 All ER (Comm) 72, [2012] Lloyd’s Rep FC 507

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Main Judgment – Shah and Another v HSBC Private Bank (UK) Ltd QBD 5-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 18 August 2022; Ref: scu.457762

Shah and Another v HSBC Private Bank (UK) Ltd: QBD 4 Jul 2011

The claimants sought very substantial damages against the bank, arising from the bank’s delay in executing four transactions. The defendant said that it suspected that the proposed transactions concerned criminal property and that, in those circumstances, they were not required to comply with the payment instructions. The claimant complained at this point of the redaction of the names of staff involved in the decisions.
Held: The redaction exercise was to be re-done by the defendant in accordance with the process outlined.

Judges:

Coulson J

Citations:

[2011] EWHC 1713 (QB), [2011] Lloyd’s Rep FC 48, [2011] Lloyd’s Rep FC 485

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Citing:

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

Banking, Litigation Practice

Updated: 18 August 2022; Ref: scu.441425

Helmsley Acceptances Ltd v Hampton: CA 11 Mar 2010

The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The claimants had an arguable claim which should be allowed to go to trial. But it was also arguable that, even if the investors now joined fail for any reason to recover damages in respect of their loss, the loss can nevertheless be recoverable, either because Helmsley constituted themselves trustees of the securities and, by implication, the rights associated with the securities, or because Helmsley can rely on the so-called Albazero exception.

Judges:

Longmore, Smith, Briggs LJJ

Citations:

[2010] EWCA Civ 356

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Technotrade Ltd v Larkstore Ltd CA 27-Jul-2006
A claim was made for damages arising from building operations. Question as to legal effect of assignment of cause of action. . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Cited – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Lists of cited by and citing cases may be incomplete.

Damages, Banking

Updated: 17 August 2022; Ref: scu.407767

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 saying that disclosure might leave them open to further charges by banking regulators.
Held: Inspection was ordered.

Judges:

Birss J

Citations:

[2015] EWHC 321 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Secretary of State for Health and Others v Servier Laboratories Ltd and Others CA 22-Oct-2013
The French company defendants had been ordered to disclose documents which they said might expose them to criminal prosecution in France. They now appealed.
Held: The court was not obliged to make use of the Council Regulation. Orders for . .
Cited – Morris v Banque Arab et Internationale d’Investissement ChD 2000
The parties had exchanged lists of documents but one side objected to inspection of a number of them on the ground that it would put them in breach of French law.
Held: There was discretion to be exercised. Neuberger J ordered inspection . .
Cited – 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.

Litigation Practice, Banking

Updated: 16 August 2022; Ref: scu.543058

In re Florence Land and Public Works Co: 1878

The court considered a floating charge: ‘The question we have to decide must be decided, like all other questions of the kind, having regard to the surrounding circumstances under which the instrument was executed, and especially the respective positions of the parties who were the contracting parties, to carry out whose agreement that instrument was executed.’

Judges:

Sir George Jessel MR

Citations:

(1878) 10 Ch D530

Jurisdiction:

England and Wales

Cited by:

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

Banking

Updated: 16 August 2022; Ref: scu.228303

Midland Bank Plc v Serter and Another: CA 8 Mar 1995

Mr S wanted to borrow money, and the bank sought security over the jointly owned house. Mr S signed the charge, and flew to the Netherlands to see Mrs W. After consuming a fair amount of alcohol, Mrs S also executed the charge and a certificate that she had been given appropriate information and advice by Mr S’s solicitor, who also was acting for the bank. She resisted the Bank’s later action for possession of the property, challenging the validity of the charge.
Held: It was arguable on her behalf that she acted under undue influence, and had not understood the significance of the solicitor’s advice.
However, to escape the bank being able to rely upon the fact of her advice from the solicitor, she would have to show that in providing that advice he was acting as agent for the Bank. Only on that basis could his knowledge be imputed to the Bank so as to vitiate the change. The bank had rightly been satisfied that she had had independent advice and the associated duties were accepted by the solicitor.

Citations:

Independent 08-Mar-1995, [1995] 1 FLR 1034

Jurisdiction:

England and Wales

Cited by:

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

Banking

Updated: 16 August 2022; Ref: scu.83712

Bank Saderat Iran v Council of The European Union: ECFI 5 Feb 2013

ECJ Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Manifest error of assessment

Citations:

T-494/10, [2013] EUECJ T-494/10

Links:

Bailii

Jurisdiction:

European

Banking

Updated: 16 August 2022; Ref: scu.470796

Iraqi Ministry of Defence and Others v Arcepey Shipping Co SA, The Angel Bell: 1980

The court considered whether a defendant should be allowed to pay his debts as they fell due despite an asset freezing order.
Held: The Mareva jurisdiction should not ‘improve the position of claimants’. Rather, it should prevent the injustice of a defendant removing his assets from the jurisdiction which may have otherwise been available to satisfy a judgment.
Robert Goff J said: ‘the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction . . It does not make commercial sense that a party claiming unliquidated damages should, without himself proceeding to judgment, prevent the defendant from using his assets to satisfy his debts as they fall due and so put him in the position of having to allow his creditors to proceed to judgment with consequent loss of credit and of commercial standing . . All the interveners [the defendant’s creditors who had lent money to the defendant for the purpose of purchasing ships, including the ship in the case at hand] are asking [in their application to vary the injunction so that they could, as equitable mortgagees of the defendant’s ship as well as assignees of the insurance policies of the said ship, be paid the proceeds of these policies as repayment of the debt due under the loan] is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do .

Judges:

Robert Goff J

Citations:

[1981] 1 QB 65, [1980] 2 WLR 488, [1980] 1 All ER 480

Jurisdiction:

England and Wales

Cited by:

Cited – Raja v Van Hoogstraten and others ChD 5-Apr-2006
Application to discharge asset freezing order.
Held: The defendant had displayed a readiness to do what was necessary to avoid compliance with court orders. The application (and others) were dismissed. . .
Cited – Halifax Plc v Chandler CA 13-Nov-2001
The claimant had sought payment of a substantial shortfall debt from the defendant after repossessing and selling the defendant’s home. It compromised that debt, and was paid, but now sought to re-open the compromise on the basis of an alleged . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – Lenkor Energy Trading Dmcc v Puri ComC 9-Aug-2022
‘Angel Bell’ exception to world wide freezing order. . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 16 August 2022; Ref: scu.241551

Patel v Patel: QBD 10 Dec 2009

The parties had entered into a loan agreement at a high rate of annual interest but with monthly rests. The court was asked to set aside the agreement as unfair under the 1974 Act.

Judges:

Leggatt QC J

Citations:

[2009] EWHC 3264 (QB), [2010] 1 All ER (Comm) 864, [2010] Bus LR D73

Links:

Bailii

Statutes:

Consumer Credit Act 1974 140B

Jurisdiction:

England and Wales

Cited by:

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

Consumer, Banking

Updated: 15 August 2022; Ref: scu.393038

Re Kaupthing Singer and Friedlander Ltd: ChD 19 Feb 2010

Judges:

Blair J

Citations:

[2010] EWHC 316 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Binding – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 14 August 2022; Ref: scu.401666

Tew and Others v Bos (Shared Appreciation Mortgages) No 1 Plc and Others: ChD 22 Jan 2010

Litigation involving shared appreciation mortgages, mortgages which were offered for a period in 1997 and 1998 by certain lenders (Bank of Scotland (‘BoS’) and Barclays Bank) which are unconventional in relation to their interest payments and redemption terms. For present purposes they can be grouped into two categories which share a common feature. The common feature is that the loans are not repayable at any fixed time. They are repayable in the event of a sale, or the death of the mortgagor. On redemption the mortgagor pays the principal outstanding and a specified percentage of any increase in value of the property over the purchase costs. That percentage is a multiple of the loan to value ratio. The multiple varies depending on the category into which the mortgage falls. One category has no interest charge. In those cases the multiple is usually 3 times loan to value ratio. The other category has a fixed interest charge, and in this case the multiple is 1.

Judges:

Mann J

Citations:

[2010] EWHC 203 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Banking

Updated: 14 August 2022; Ref: scu.396743

Jack and Another (London Scottish Finance Ltd) v Craig and Others: ChD 17 Dec 2013

Application by the joint administrators of LSF for directions arising out of loan agreements made or acquired by LSF before the administration began, under which secured loans were made to consumers but which were unenforceable because they contravened provisions of the Consumer Credit Act 1974.
Held: The phrase ‘realisation of the security’ in section 106, is to be interpreted conventionally to achieve the policy objective (section 113) that the security provided under the regulated agreement could not be enforced so as to benefit the creditor to any greater extent than would be the case if the security were not provided. In a secured loan to which section 106(d) applied, the provisions did not catch all sums paid by the debtor in discharge of the loan.

Judges:

Sir Terence Etherton Ch

Citations:

[2013] EWHC 4047 (Ch), [2013] WLR(D) 498, [2014] Bus LR 424, [2013] CTLC 231

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986, Consumer Credit Act 1974 106(d)

Jurisdiction:

England and Wales

Insolvency, Consumer, Banking

Updated: 14 August 2022; Ref: scu.519223

Royal Bank of Scotland Plc v Carlyle: SCS 13 Jan 2010

The bank sought repayment of a loan to the defender, who replied saying that the Bank had promised additional funding without which he suffered losses.

Judges:

Lord Glennie

Citations:

[2010] ScotCS CSOH – 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Royal Bank of Scotland Plc v Carlyle SCS 6-Aug-2010
(Outer House) . .
See Also – Royal Bank of Scotland Plc v Carlyle SCS 12-Sep-2013
. .
At Outer House – Carlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 13 August 2022; Ref: scu.393046

Cooper v National Westminster Bank Plc: QBD 7 Dec 2009

Judges:

Richard Seymour QC

Citations:

[2009] EWHC 3035 (QB), [2010] 1 Lloyd’s Rep 490

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 11 August 2022; Ref: scu.384159

Doyle v PRA Group (UK) Ltd: CA 23 Jan 2019

Whether the cause of action for the outstanding sums accrued when D first defaulted in his payments or only when D failed to comply with the default notice stipulated by CCA s.87(1) and required by clause 8f of the Agreement. D appealed from a finding against him.
Held: The appeal failed. ‘The effect of the introductory wording of clause 8f of the Agreement (‘Subject to us sending you any notice required or taking any steps required by law’) and, more particularly, CCA s.87(1) is that, absent service and expiry of a default notice compliant with CCA ss.87 and 88, there would have been both a complete defence to a claim for all outstanding sums under the Agreement and an unanswerable right to strike out the claim.’ Whether a delay which had become abusive could be used under s140A and 140B to set aside the consequences of s87 was not before the court.

Judges:

Sir Terence Etherton Mr, Lord Justice Flaux
And
Lord Justice Peter Jackson

Citations:

[2019] ECC 13, [2019] EWCA Civ 12, [2019] 1 WLR 3783, [2019] WLR(D) 236

Links:

Bailii, WLRD

Statutes:

Consumer Credit Act 1974 87(1), Limitation Act 1980 5

Jurisdiction:

England and Wales

Citing:

Cited – Read v Brown CA 1-Dec-1888
Lord Esher defined the phrase ’cause of action’ to mean ‘Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.’ . .
Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – Swansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
Cited – Harrison v Link Financial Ltd Merc 28-Feb-2011
. .
Cited – Grace and Another v Black Horse Ltd CA 30-Oct-2014
The appellant had entered into a Consumer Credit Agreement with the respondent, but the form signed by him was not the same as that signed by the bank, and it was unenforceable. He fell into arrears. . .
Cited – McGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
Lists of cited by and citing cases may be incomplete.

Limitation, Consumer, Banking

Updated: 09 August 2022; Ref: scu.632652

UBS Ag and Another v Revenue and Customs: SC 9 Mar 2016

UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps were taken according to a detailed timetable. Once the structure of the scheme had been finalised, a brochure was sent to the employees explaining it in detail and inviting their participation. 426 employees agreed to participate. Some of the documentation required under the scheme, such as board minutes of the vehicle company, was pre-drafted. The scheme was then implemented as planned.
Held: The Revenue’s appeals were allowed. The tax system is to work real world transactions, and those transactions manufactured for no reason other than for tax avoidance should not encouraged. The exemption allowed under section 423 is to be construed to apply only to transactions having a real world purpose: ‘ the reference in section 423(1) to ‘any contract, agreement, arrangement or condition which makes provision to which any of subsections (2) to (4) applies’ is to be construed as being limited to provision having a business or commercial purpose, and not to commercially irrelevant conditions whose only purpose is the obtaining of the exemption.’
Lord Reed reiterated that whatever the context (in casu tax) the ultimate question was always one of statutory construction: ‘Unfortunately’, the Committee commented in Barclays Mercantile at para 34, ‘the novelty for tax lawyers of this exposure to ordinary principles of statutory construction produced a tendency to regard Ramsay as establishing a new jurisprudence governed by special rules of its own’. In the Barclays Mercantile case the Committee sought to achieve ‘some clarity about basic principles’. It summarised the position . . ‘The essence of the new approach was to give the statutory provision a purposive construction in order to determine the nature of the transaction to which it was intended to apply and then to decide whether the actual transaction (which might involve considering the overall effect of a number of elements intended to operate together) answered to the statutory description . . As Lord Nicholls of Birkenhead said in MacNiven v Westmoreland Investments Ltd [2003] 1 AC 311, 320, para 8: ‘The paramount question always is one of interpretation of the particular statutory provision and its application to the facts of the case”.

Judges:

Lord Neuberger, President, Lord Mance, Lord Reed, Lord Carnwath, Lord Hodge

Citations:

[2016] UKSC 13, [2016] STI 513, [2016] 1 WLR 1005, [2016] STC 934, [2016] 3 All ER 1, [2016] BTC 11, [2016] WLR(D) 133, UKSC 2014/0151

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary

Statutes:

Income Tax (Earnings and Pensions) Act 2003 423

Jurisdiction:

England and Wales

Citing:

Cited – W T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
Cited – Barclays Mercantile Business Finance Ltd v Mawson (HM Inspector of Taxes) HL 25-Nov-2004
The company had paid substantial sums out in establishing a gas pipeline, and claimed those sums against its tax as capital allowances. The transaction involved a sale and leaseback arrangement which the special commissioners had found to be a . .
At CA – DB Group Services (UK) Ltd v Revenue and Customs CA 16-Apr-2014
The two companies had established schemes designed to minimise tax on payments to employees, using a purpose made company to take advantage of exemptions under section 423. In oe cse the Revenue appealed against rejection of its challenge,nd in the . .
Cited – Weight (HM Inspector of Taxes) v Salmon HL 4-Mar-1935
TC Income Tax, Schedule E-Emolument of office – Salaried director – Right to take up shares at par value, their market value being considerably higher.
Where an employee receives shares as part of his . .
Cited – Abbott v Philbin (Inspector of Taxes) HL 21-Jun-1960
A company’s senior employees had been given an option to subscribe for its shares at the then current market price, the option being exercisable at any time within the next ten years. The employees were thus incentivised to increase the company’s . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – Inland Revenue Commissioners v Scottish Provident Institution HL 25-Nov-2004
The parties anticipated a change in the system for taxing gains on options to buy or sell bonds and government securities. An option would be purchased before the change and exercised after the change to create losses which could be set off against . .
Cited – Grays Timber Products Ltd v Revenue and Customs SC 3-Feb-2010
An assessment to income tax had been raised after the employee resold shares in the company issued through the employees’ share scheme at a price which the Revenue said was above the share value. The company appealed against a finding that tax was . .
At FTTTx – UBS Ag v Revenue and Customs FTTTx 15-Sep-2010
FTTTx Regulation 80, PAYE Regulations – Section 8, Social Security Contributions (Transfer of Functions, etc) Act 1999 – whether sums paid into a share scheme were earnings of the staff for whom they were paid – . .
At FTTTx – Deutsche Bank Group Services (UK) Ltd v Revenue and Customs FTTTx 19-Jan-2011
Regulation 80, PAYE Regulations – Section 8, Social Security Contributions (Transfer of Functions, etc) Act 1999 – whether sums paid into a share scheme were earnings of the staff for whom they were paid – whether the shares purchased as part of the . .
At UT – UBS AG v HM Revenue and Customs UTTC 17-Sep-2012
UTTC Income Tax and NICs: scheme to deliver bonuses in form of shares avoiding income tax and NIC. S18(1) ITEPA Rule 2 – whether employee became ‘entitled to payment’ when amount of bonus determined. Ch 2 Part 7 . .
Cited – Inland Revenue Commissioners v Burmah Oil Co Ltd HL 3-Dec-1981
HL Corporation tax – Chargeable gains – Allowable losses – Tax avoidance scheme involving disposal of shares by parent company following rights issue by subsidiary company – Consideration for rights issue – . .
Cited – Furniss (Inspector of Taxes) v Dawson HL 9-Feb-1983
The transfer of shares to a subsidiary as part of a planned scheme immediately to transfer them to an outside purchaser was regarded as a taxable disposition to the outside purchaser rather than an exempt transfer to a group company. In defined . .
Cited – Commissioners of Inland Revenue v McGuckian HL 21-May-1997
Steps which had been inserted into a commercial transaction, but which had no purpose other than the saving of tax are to be disregarded when assessing the tax effect of the scheme. The modern approach to statutory construction is to have regard to . .
Cited – Collector of Stamp Revenue v Arrowtown Assets Ltd 4-Dec-2003
(Hong Kong Final Court of Appeal) The court was asked as to the accounting treatment of interests incurred in the development for the purpose of generating the profits, and therefore whether the relevant Ordinance prohibited the capitalisation of . .
Cited – Carreras Group Limited v The Stamp Commissioner PC 1-Apr-2004
PC (Jamaica) The transfer of shares in exchange for a debenture with a view to its redemption a fortnight later was not regarded as an exempt transfer in exchange for the debenture but rather as an exchange for . .
Cited – Revenue and Customs v Tower MCashback Llp 1 and Another SC 11-May-2011
No re-opening after closure notices
The taxpayer had purchased software licences (SLA), and set out to claim the full cost against its tax liabiilities under the 2001 Act in the first year. The taxpayer said that after the Revenue had issued closure notices, it was not able to re-open . .
Cited – MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .

Cited by:

Cited – National Aids Trust v National Health Service Commissioning Board (NHS England) Admn 2-Aug-2016
NHS to make drug available
The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities. . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Banking

Updated: 08 August 2022; Ref: scu.560718

McGuffick v The Royal Bank of Scotland Plc: ComC 6 Oct 2009

Requirements for Enforcing Consumer Loan Agreement

The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could not enforce the agreement, it remained valid and that default would be reported to credit reference agencies. The court was asked whether during a period when the agreement was unenforceable for non-compliance, the debt was extinguished/suspended or continued and what steps were available to the bank.
Held: The House of Lords in Wilson had left this situation unclear, and the conflicting judgements were issued without full citation of the case law. The effect of unenforceability under section 65 is that the rights of the creditor and corresponding liability or obligations of the debtor do exist but are unenforceable, rather than that those rights were never acquired or that the creditor was deprived of those rights whilst the agreement was unenforceable.
The 1974 Act did not make clear what was meant by enforcement, but reference to credit reference agencies was said by the claimant to be coercive. Steps up to and including applications to court for permission to enforce such an agreement did not themselves amount to enforcement.
The 2008 regulations were not enforceable by private action.

The claimant had objected under the 1998 Act to the continued holding of information regarding his account. That claim failed: ‘There is simply no basis for the contention that the data is not being processed fairly and lawfully. The processing of the data by sharing it with other financial institutions through the CRAs, pursuant to the Principles of Reciprocity, is clearly in the legitimate interests of the bank, the CRAs and other financial institutions, for all of whom the governing principle is that the sharing of data has the aim of promoting responsible lending.’

Judges:

Flaux J

Citations:

[2009] EWHC 2386 (Comm)

Links:

Bailii

Statutes:

Consumer Credit Act 1974, Consumer Protection from Unfair Trading Regulations 2008, Directive 2005/29EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices., Data Protection Act 1998 10(1)

Jurisdiction:

England and Wales

Citing:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Taylor v Great Eastern Railway Company 1901
The section provided that: ‘A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in . .
Cited – Rankine v American Express Services Europe Ltd 2009
The court considered the enforcement of a contract which offended the 1974 Act.
Held: The bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. . .
Cited – Eastern Distributors Limited v Goldring (Murphy, Third Party) CA 1957
The court considered the meaning of the phrase: ‘shall not be entitled to enforce’ in the section.
Held: ‘How is the present case affected by the fact that the hire-purchase agreement is unenforceable? If the Act said that it was void, then of . .
Cited – VTB-VAB v Total Belgium NV; Galatea BVBA v Sanoma Magazines Belgium NV ECJ 21-Oct-2008
ECJ (Approximation of Laws) Opinion – Admissibility of a reference for a preliminary ruling – Proper subject of interpretation Relevance to the decision Combined offers – Directive 2005/29/EC – Interpretation in . .
Cited – Conister Trust Ltd v John Hardman and Co CA 21-Jul-2008
The court was asked whether an agreement by the defendant solicitors under a personal injury litigation funding scheme, to discharge a client’s ‘remaining liability’ under a loan agreement applies on its true construction where the loan agreement is . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Regina v Modupe CACD 1991
The appellant obtained loans enabling him to buy cars by giving false information when entering into hire purchase agreements. The relevant agreement did not contain all the prescribed information and was improperly executed so that by virtue of . .

Cited by:

Cited – Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Cited – Doyle v PRA Group (UK) Ltd CA 23-Jan-2019
Whether the cause of action for the outstanding sums accrued when Mr Doyle first defaulted in his payments or only when Mr Doyle failed to comply with the default notice stipulated by CCA s.87(1) and required by clause 8f of the Agreement. Mr Doyle . .
Lists of cited by and citing cases may be incomplete.

Consumer, Banking, Information

Updated: 08 August 2022; Ref: scu.375741

Grace and Another v Black Horse Ltd: CA 30 Oct 2014

The appellant had entered into a Consumer Credit Agreement with the respondent, but the form signed by him was not the same as that signed by the bank, and it was unenforceable. He fell into arrears.

Judges:

Lord Dyson MR, Beatson, Briggs LJJ

Citations:

[2014] EWCA Civ 1413, [2015] 2 All ER (Comm) 465, [2015] 3 All ER 223, [2014] WLR(D) 460, [2015] BUS LR 1

Links:

Bailii, WLRD

Statutes:

Consumer Credit Act 1974 63

Jurisdiction:

England and Wales

Cited by:

Cited – Doyle v PRA Group (UK) Ltd CA 23-Jan-2019
Whether the cause of action for the outstanding sums accrued when Mr Doyle first defaulted in his payments or only when Mr Doyle failed to comply with the default notice stipulated by CCA s.87(1) and required by clause 8f of the Agreement. Mr Doyle . .
Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 08 August 2022; Ref: scu.538187

In re Kaupthing Singer and Friedlander Ltd: ChD 18 Dec 2009

The bank went into adminstration under special arrangements. The administrators of KSF applied to the Chancery Division for directions as to the applicability of the rule in Cherry v Boultbee.
Held: The rule was not excluded. The administrators of KSF might rely on it unless and until KSF’s right to indemnity (as a surety) had been satisfied in full.

Judges:

Sir Andrew Morritt C

Citations:

Unreported, 18-Dec-09

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 07 August 2022; Ref: scu.449846

Deutsche Bank Ag v Sebastian Holdings Inc: ComC 1 Dec 2009

Citations:

[2009] EWHC 3069 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 14-Aug-2009
. .

Cited by:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 28-Apr-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 16-Dec-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 13-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 07 August 2022; Ref: scu.381695

TS and S Global Ltd v Fithian-Franks and others: ChD 18 Jun 2007

Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the statutory demands.

Judges:

David Richards J

Citations:

[2007] EWHC 1401 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re J Brown’s Estate 1893
Chitty J considered whether a debt required a demand to have been made for it to become payable: ‘it is plain that a distinction has been taken and maintained in law, the result of which is that where there is a present debt and a promise to pay on . .
Cited – Bradford Old Bank Ltd v Sutcliffe CA 1918
A demand for payment is not necessary in order to make a present debt immediately payable, even if it is expressed to be payable on demand, unless it is a collateral debt. . .
Cited – MS Fashions Ltd v Bank of Credit and Commerce International SA CA 1993
BCCI contracted with three companies and their directors or others as sureties. Money was deposited with BCCI as security from the companies. Some agreements described the sureties as ‘principal debtor’ or contained personal covenants by them as . .
Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Cited – Stimpson v Smith CA 11-Mar-1999
The court was asked whether a guarantor who had made a payment discharging the guarantee without a formal demand but following negotiations with the creditor, and in circumstances where otherwise the creditor would probably have made a demand, could . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 06 August 2022; Ref: scu.253583

Grosvenor Casinos Ltd v National Bank of Abu Dhabi: ComC 14 Nov 2007

Judges:

David Steel J

Citations:

[2007] EWHC 2600 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 06 August 2022; Ref: scu.261307

Capital Bank Plc v Mcdiarmid: CA 7 Feb 2006

The defendant was said to have guaranteed a hire purchase agreement. The principle, a company, had become insolvent. He denied having signed the document.
Held: Leave to appeal should not be granted. The court considered further evidence. That evidence failed the first test in Ladd v Marshall, and was not to be admitted. The recorder had carefully examined the evidence before him and was entitled to reach the conclusions he had.

Citations:

[2006] EWCA Civ 226

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banks and Another v Cox and Another CA 17-Jul-2000
The court considered the principles of admitting new evidence on appeal after the introduction of the new rules. Moritt LJ: ‘In my view the principles reflecting in the rules in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 August 2022; Ref: scu.239210

In re A Company (No 005009 of 1987); Ex parte Copp: 1989

Knox J declined to look at evidence about an agreed overdraft limit, regarding it as a ‘collateral arrangement’. He said: ‘this is a type of transaction in respect of which judicial precedent is a particularly valuable guide to the commercial adviser. It is one of the main justifications for the doctrine of precedent that the adviser can, if he can rely on precedent, give reliable advice to his clients, and it is trite law that that is a particularly cogent consideration in regard to property transactions of one sort or another.’

Judges:

Knox J

Citations:

[1989] BCLC 13

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Banking, Contract

Updated: 06 August 2022; Ref: scu.228298

Bank of Credit and Commerce International SA (In Liquidation) v Malik and Malik: CA 5 Dec 1996

A bank in liquidation remained free to set its own base rate.

Citations:

[1996] EWCA Civ 1108

Jurisdiction:

England and Wales

Citing:

Appeal from – Bank of Credit and Commerce International v Malik and Others ChD 13-Mar-1995
A bank was free to set its own base rate as it wished despite its liquidation. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 August 2022; Ref: scu.140975

Bank of Credit and Commerce International v Malik and Others: ChD 13 Mar 1995

A bank was free to set its own base rate as it wished despite its liquidation.

Citations:

Ind Summary 13-Mar-1995

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bank of Credit and Commerce International SA (In Liquidation) v Malik and Malik CA 5-Dec-1996
A bank in liquidation remained free to set its own base rate. . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 06 August 2022; Ref: scu.78303

Bank of Credit and Commerce International Sa (In Liquidation) (No 8): CA 2 Oct 1996

Not all debts which were eligible for proof in bankruptcy were also eligible for a set off.
Rose Ljexplained the doctrine of equitable marshallling, saying: ‘The doctrine of marshalling applies where there are two creditors of the same debtor, each owed a different debt, one creditor (A) having two or more securities for the debt due to him and the other (B) having only one. B has the right to have the two securities marshalled so that both he and A are paid so far as possible. Thus if a debtor has two estates (Blackacre and Whiteacre) and mortgages both to A and afterwards mortgages Whiteacre only to B, B can have the two mortgages marshalled so that Blackacre can be made available to him if A chooses to enforce his security against Whiteacre. For the doctrine to apply there must be two debts owed by the same debtor to two different creditors.’
. . and ‘[Marshalling] is never allowed to delay or defeat the creditor with several securities in the collection of his debt and the enforcement of his securities. He is allowed to realise his securities as he pleases’.

Judges:

Rose LJ

Citations:

Gazette 02-Oct-1996, [1996] Ch 245, [1996] 2 BCLC 254, [1996] 2 WLR 631, [1996] 2 All ER 121

Statutes:

Insolvency Rules 1986 4.90

Jurisdiction:

England and Wales

Cited by:

Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Equity

Updated: 06 August 2022; Ref: scu.78144

HSBC Bank Plc v Liberty Mutual Insurance Company (Uk) Ltd: ChD 11 Jun 2001

Where the draftsman of a contract appeared to have misused a word the court could depart from the dictionary meanings even if there was no ambiguity. This must first become apparent from the surrounding circumstances before the court could accept that it was to be driven to construe the contract in this way.

Citations:

Times 11-Jun-2001

Jurisdiction:

England and Wales

Insurance, Banking, Contract

Updated: 06 August 2022; Ref: scu.81509

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: ChD 27 Jun 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.

Judges:

Edward Nugee QC

Citations:

Ind Summary 24-Jul-1995, Times 27-Jun-1995, Gazette 13-Jul-1995, [1996] Ch 1

Jurisdiction:

England and Wales

Cited by:

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

Land, Legal Professions, Banking

Updated: 06 August 2022; Ref: scu.81153

Hollicourt (Contracts) Ltd (In Liquidation) v Bank of Ireland: ChD 17 Dec 1999

A company’s account was in credit at all times, but was, unknown to the bank, in winding up proceedings. The bank continued to honour cheques, and was found to have been making dispositions of the company’s assets under the section. Accordingly the payments were void and ineffective from the date of the commencement of the winding up.

Citations:

Times 30-Nov-1999, Gazette 17-Dec-1999

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Citing:

Appealed to – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .

Cited by:

Appeal from – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Banking

Updated: 06 August 2022; Ref: scu.81446

American Express International Banking Corporation v Hurley: ChD 1985

The property mortgaged was specialised sound and lighting equipment used at pop concerts. The mortgagee’s guarantor was dissatisfied with the way in which the receiver sold the equipment.
Held: Where a company receiver was appointed under a charge in common form, he acted as the agent of the the mortgagor until the mortgagor’s liquidation. Something more is required to constitute a relationship of principal and agent between the mortgagee and the receiver than the mere appointment under the terms of a debenture which in its normal form constitutes the receiver an agent for the mortgagor. While he was such, the mortgagee was not responsible for what the receiver did unless and until he directed or interfered with the receiver’s activities. Furthermore, the mortgagee, or receiver, had a duty of care to the guarantor of the mortgagor’s debt to obtain the true market value of the mortgaged property when either of them realised the property in the exercise of a power of sale. In the circumstances of this case the receiver had not taken reasonable care to obtain the true market value.
Mann J said: ‘In my judgment the receiver did not take reasonable care in all the circumstances of the case to obtain the true market value of the equipment. He had in his hands equipment which he knew had been valued at andpound;193,323 and which he knew was of a specialist nature. In regard to the disposal of the equipment he did nothing. Although advised by Edward Symmons Ltd that he should look to the trade the receiver did not do so but was content that the trade should look to him. In my judgment the failure to take reasonable care is manifest in these forms: (i) a failure to take specialist advice from a person in the popular music industry; (ii) a failure to advertise in publications concerning the popular music industry. The receiver is liable in negligence to the guarantor.’

Judges:

Mann J

Citations:

[1985] 3 All ER 564, [1986] BCLC 52

Jurisdiction:

England and Wales

Cited by:

Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Banking, Insolvency

Updated: 05 August 2022; Ref: scu.267746

Hampton v Minns: ChD 17 May 2001

The parties were each sureties for a debt to their bank from their company. The bank recovered the company’s debt from one surety, who in turn sought a contribution of half from the other. The respondent asserted that the claim was statute barred, because in this case it was a claim under a guarantee for which the limitation period was two years. The claimant succeeded, on the basis that the claim was in debt, because of the particular agreement. On its true construction the agreement between the parties created a debt, and the right to a contribution did not arise under the 1978 Act.

Citations:

Gazette 17-May-2001

Statutes:

Civil Liability (Contributions) Act 1978 1, Limitation Act 1980 10

Jurisdiction:

England and Wales

Limitation, Banking

Updated: 05 August 2022; Ref: scu.81213

In re Kaupthing Singer and Friedlander Ltd: ChD 2 Oct 2009

Judges:

Norris J

Citations:

[2009] EWHC 2308 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal From – In re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
See Also – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 04 August 2022; Ref: scu.375620

Royal Bank Of Scotland Plc v Davidson and Another: SCS 30 Sep 2009

The bank claimed repayment of the company’s debts by the defender guarantors. The defenders arged that the personal guarantees had been avoided by the negligent misrepresentations of the pursuer.

Judges:

Lord Drummond Young

Citations:

[2009] ScotCS CSOH – 134, 2009 GWD 38-636, 2010 SLT 92

Links:

Bailii

Scotland, Banking

Updated: 04 August 2022; Ref: scu.375411

Kommune and Another v DEPFA Acs Bank: ComC 4 Sep 2009

Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers.

Judges:

Tomlinson J

Citations:

[2009] EWHC 2227 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Guinness Mahon and Co Ltd v Kensington and Chelsea London Borough Council CA 2-Mar-1998
Where a local authority entered into a loan agreement outside its powers, the agreement was void ab initio, not merely voidable, and all moneys paid could be reclaimed. . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
Cited – Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation) PC 23-May-1996
(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the . .

Cited by:

Appeal From – Haugesund Kommune and Another v Depfa Acs Bank CA 27-May-2010
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Local Government, Banking

Updated: 04 August 2022; Ref: scu.374385

Mahomed v Bank of Baroda: CA 10 Dec 1998

A claim against a bank for repayment of a deposit does not of itself restart the limitation period on a claim, but where a customer revoked a demand, asking for payment at next maturity, the contract continued and the limitation period started afresh.

Citations:

Times 10-Dec-1998, Gazette 10-Dec-1998, [1998] EWCA Civ 1776

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Limitation, Banking

Updated: 03 August 2022; Ref: scu.83318

Arcadia Group Brands Ltd and Others v Visa Inc and Others: ComC 30 Oct 2014

The Claimants sought damages for breaches of European and domestic competition law in relation to the Defendants’ imposition of multilateral interchange fees in the course of operating the Visa payment-card system.

Judges:

Simon J

Citations:

[2014] EWHC 3561 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Banking

Updated: 03 August 2022; Ref: scu.538265

Stoddart v Union Trust Ltd: CA 1912

Citations:

[1912] 1 KB 181

Jurisdiction:

England and Wales

Cited by:

Cited – Banco Santander Sa v Bayfern Ltd and Others ComC 29-Jun-1999
The court was asked whether the risk of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit is to be borne by the issuing bank (and so possibly the applicant for the credit) or by the confirming bank where the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 July 2022; Ref: scu.244758

Barclays Bank Plc v O’Brien and Another: CA 22 May 1992

A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge defective.

Citations:

Gazette 15-Jul-1992, [1992] 4 All ER 983, [1993] QB 109

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – CIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence

Updated: 31 July 2022; Ref: scu.78212

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.’

Judges:

Scrutton LJ, Sankey LJ

Citations:

[1929] 1 KB 40

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .
Approved – 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 by:

Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 July 2022; Ref: scu.250553

European Asian Bank AG v Punjab and Sind Bank: CA 1983

The court heard a claim by the appellant bank against the issuing bank of a deferred payment letter of credit. The appellants had negotiated the credit by paying its discounted value to the Beneficiary. Between that date and the maturity date fraud, or alleged fraud, on the part of the Beneficiary was discovered and the issuing bank denied liability under the credit.
Held: There was no arguable defence and the court entered a summary judgment against the issuing bank. On the evidence the issuing bank had unequivocally represented to the appellants that they were entitled to act as negotiating bankers under the credit and that they would be paid as negotiating bankers on the maturity date.
The issuing bank submitted that the appellants were merely agents for collection for the beneficiary (and so fixed with its fraud). This was rejected: ‘Even if it were a fact that, as at August 13 (when the appellants had forwarded the documents to the issuing bank to enquire whether they would accept them) the appellants had been appointed agents for collection by (the Beneficiary) it is beyond question that by August 20 the appellants had negotiated the letter of credit, and there is no suggestion that they acted otherwise than in good faith in so doing. Thereafter, in February 1980, they claimed payment from the respondents; and this was refused. In our judgment it is not open to the respondents, on these facts, to say against the appellants that they were justified in refusing payment on the ground that the documents were fraudulent or even forged. In our judgment the relevant time for considering this question is the time when payment falls due and is claimed and refused. If, at that time, the party claiming payment had negotiated the relevant documents in good faith, the issuing bank cannot excuse his refusal to pay on the ground that at some earlier time the negotiating bank was a mere agent for collection on behalf of the seller and allege against him fraud or forgery (if that indeed be the case) on the part of the beneficiary of the letter of credit.’ and ‘After all it was obvious that the appellants as negotiating bankers, would be discounting the letter of credit and so paying out a very large sum of money on the faith of these messages (that is the messages which constituted the representation that the appellants were entitled to act as negotiating bankers under the letter of credit).’

Judges:

Robert Goff LJ

Citations:

[1983] 1 LL Rep 611

Jurisdiction:

England and Wales

Cited by:

Cited – Banco Santander Sa v Bayfern Ltd and Others ComC 29-Jun-1999
The court was asked whether the risk of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit is to be borne by the issuing bank (and so possibly the applicant for the credit) or by the confirming bank where the . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 31 July 2022; Ref: scu.244756

In re Gray’s Inn Construction Co Ltd: CA 1980

After the presentation of a petition for the winding up of the company moneys were paid in and out of the company’s bank account which was overdrawn. The liquidator issued a summons for a declaration that the amounts credited and/or debited to the account by the bank during the relevant period constituted dispositions of the company’s property which were void under s.227 of the Companies Act 1948. The liquidator further sought an order that the bank pay those moneys to the liquidator as constituting dispositions of the property of the company.
Held: In the exercise of the court’s discretion whether to make a validation order, the overriding principle is that the court must always do its best to ensure that the interests of the unsecured creditors will not be prejudiced. On an application for a validation order in the period between the presentation of the petition and its hearing, the court will need to be satisfied that it is in the interests of the creditors generally that the transaction should be allowed to proceed.
Buckley LJ said: ‘When a customer’s account with his banker is overdrawn he is a debtor to his banker for the amount of the overdraft. When he pays a sum of money into the account, whether in cash or by payments in of a third party’s cheque, he discharges his indebtedness to the bank pro tanto. There is clearly in those circumstances, in my judgment, a disposition by the company to the bank of the amount of the cash or of the cheque.’
After stating that in the case before the court the company’s account with the bank was overdrawn, he said: ‘Mr Heslop does not dispute that all payments out of the company’s account to third parties, not being payments to agents of the company as such are dispositions of the company’s property; . . That all such payments out must be dispositions of the company’s property is, I think, indisputable . .’

Judges:

Buckley, Goff LJJ and Sir David Cairns

Citations:

[1980] 1 WLR 711

Statutes:

Companies Act 1948 227

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Banking

Updated: 31 July 2022; Ref: scu.184534

Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd and Another: ChD 28 Jul 2009

The parties had entered into complicated financial arrangements effectively providing credit insurance. On the insolvency of Lehman brothers, a claim was made.
Held: The contractual provisions were effective as a matter of English law and, in particular, did not offend the anti-deprivation rule. The Collateral was bought by the Issuer with the money subscribed by the Noteholders. It was not derived directly or indirectly from LBSF. The court should not be astute to interpret commercial transactions so as to invalidate them, particularly when doubt might be cast on other long-standing commercial arrangements. As long as the Swap Agreement was being performed it was appropriate for LBSF to have security for the obligations of the Issuer in priority to security in respect of the Issuer’s obligations to the Noteholders, but the intention of all parties was that the priority afforded to LBSF was conditional on LBSF continuing to perform the Swap Agreement.
If, alternatively, the provisions were capable of offending the anti-deprivation rule, the rule was not engaged because an alternative Event of Default (the Chapter 11 filing by LBHI) had occurred prior to the Chapter 11 filing by LBSF, and consequently the Chapter 11 filing did not deprive LBSF of any property.

Judges:

Sir Andrew Morritt Ch

Citations:

[2009] 2 BCLC 400, [2009] BPIR 1093, [2009] EWHC 1912 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Butters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
Appeal from – Perpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others CA 6-Nov-2009
The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply . .
At First Instance – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 30 July 2022; Ref: scu.368645

Lancore Services Ltd v Barclays Bank Plc: CA 23 Jul 2009

The claimant sought repayment of substantial sums received by the bank under its account. The bank replied that the customer had been acting in breach of its agreement in aggregating payments for goods other than the services it had itself supplied, namely the sale of pharmaceuticals, and adult material on-line.
Held: The agreement provided that for such a breach, the bank was free to operate a chargeback for the sums claimed. The sums had not been received for services provided by the claimant, and did not fall within any requirement to pay such a sum to the claimant.

Judges:

Sir Andrew Morritt Chancellor, Rimer LJ, Goldring LJ

Citations:

[2009] EWCA Civ 752

Links:

Bailii

Jurisdiction:

England and Wales

Banking

Updated: 30 July 2022; Ref: scu.361453

Samuel Walker, Jonathan Walker, Vincent Henry Eyre, And Richard Stanley v John Hardman, Thomas Cooke, William Baker And Sophia His Wife, And Charles Baylis And Ann His Wife: 1837

Citations:

[1837] EngR 280, (1837) 4 Cl and Fin 258, (1837) 7 ER 99

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Samuel Walker, Jonathan Walker, Vincent Henry Eyre, And Richard Stanley v John Hardman, Thomas Cooke, William Baker, And Sophia His Wife, Charles Baylis, And Ann His Wife 1837
. .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 30 July 2022; Ref: scu.313397

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 maintained a list of persons and entities subject to the asset freeze imposed on persons ‘associated with Al-Qaida’ under Chapter VII of the United Nations Charter, and had included his name on the list, making him subject to sanctions.Held: His appeal failed. The respondent’s 2005 decision to remove his hold on the proposal for the appellant’s designation by the Sanctions Committee was the exercise of prerogative powers for the conduct of foreign relations. This does not make it immune from judicial review, but the courts should proceed with caution. Even if there were a flaw in the respondent’s 2005 decision, this of itself would not entitle the appellant to a remedy. Quashing the decision would not have any substantive effect on the appellant’s present position, as it would not detract from the continuing effect of the Sanction Committee’s listing or its application in the United Kingdom through Regulation 881

Judges:

Lord Neuberger, President, Lord Mance, Lord Wilson, Lord Sumption, Lord Carnwath

Citations:

[2016] UKSC 3, [2016] WLR(D) 35, [2016] AC 1457, [2016] 2 WLR 509, [2016] 3 All ER 261, UKSC 2014/0028

Links:

Bailii Summary, Bailii, WLRD, SC, SC Summary

Jurisdiction:

England and Wales

Citing:

See Also – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Appeal from – 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 . .
At first instance – 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 – Kadi v Council and Commission ECJ 3-Sep-2008
(Common foreign and security policy) Grand Chamber – Common foreign and security policy (CFSP) Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban United Nations Security . .
Cited – Kadi v Commission ECFI 30-Sep-2010
ECFI Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – . .
Cited – Prosecutor v Furundzija ICT 10-Dec-1998
The status of the prohibition on State torture as a rule of jus cogens has the consequence that at the inter-State level, any legislative, administrative or judicial act authorising torture is illegitimate. Furthermore, the prohibition on State . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
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 – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
Cited – HM Treasury v Ahmed and Others SC 4-Feb-2010
The Court had declared unlawful as ultra vires terrorism related orders made against the several claimants. The court now considered how restrictions imposed by banks should be dealt with.
Held: (Lord Hope dissenting as to the order required) . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Cited by:

Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Lists of cited by and citing cases may be incomplete.

Banking, Crime, Judicial Review

Updated: 28 July 2022; Ref: scu.559349

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 the risk of liability because they do not inquire.’

Judges:

Scrutton LJ

Citations:

[1924] 1 KB 775

Jurisdiction:

England and Wales

Cited by:

Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 28 July 2022; Ref: scu.250552