The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the bank.
Held: The bank was liable. ‘a duty ought to be imposed on the Bank, towards claimants who have obtained a freezing order, to take care that funds of a person whose account has been frozen pursuant to that order should not be dissipated in breach of that order. I would not be deterred by the apparent absence of any express or deliberate assumption of responsibility on the part of the Bank since I would hold that the law ought to decide that such responsibility should be imposed and that that, in accordance with Phelps, is sufficient. I do not believe that the absence of an express assumption of responsibility should be fatal to the conclusion reached by relying on the first approach. I further conclude, applying the third (incremental) approach, that the imposition of such a duty of care is not to impose on banks liabilities different in kind from the sort of liabilities to which banks have become used at the hands of their customers and others for many years.’
Judges:
Lord Justice Peter Gibson Lord Justice Longmore Mr Justice Lindsay
Citations:
[2004] EWCA Civ 1555, [2005] 1 WLR 2082
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Mareva Compania Naviera SA v International Bulkcarriers SA CA 1-Feb-1975
An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets.
Held: The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: ‘A mandamus or an injunction may . .
Cited – Al-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
Cited – Nippon Yusen Kaisha v Karageorgis CA 1975
The plaintiff company had chartered a ship to the defendants. A large sum was now claimed for hire, and a string prima facie case made out. The charterers could not be found but there was evidence of funds at a bank in London. An ex parte . .
Cited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
Cited – Z Bank v DI ChD 1994
A company in contempt of court may have acted with a greater or lesser degree of culpability and the court has a discretion to impose punishment commensurate with that culpability, although some penalty is likely to be appropriate unless the . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
Cited – Reeman and Reeman v Department of Transport; West Marine Surveyors and Consultants and Richard Primrose Ltd CA 26-Mar-1997
The purchaser of a fishing boat had relied on an incorrect safety certificate in respect of the vessel. He sought to claim in negligence.
Held: The object of the statutory scheme pursuant to which the certificate had been issued was to promote . .
Cited – Business Computers International Ltd v Registrar of Companies ChD 1988
A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved . .
Cited – Dean v Allin and Watts (a Firm) CA 23-May-2001
An unsophisticated lender running the business of a car mechanic wanted to lend money to borrowers on the security of real property owned by an associate of the borrowers. The borrowers instructed the defendant solicitors to give effect to this . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited by:
Appeal from – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Banking, Negligence
Updated: 27 June 2022; Ref: scu.219675