The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute but qualified. It is not possible to frame any exhaustive definition of the duty. The most that can be done is to classify the qualification, and to indicate its limits.’ and ‘In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.’
Scrutton LJ said: ‘The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker’s contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customers except in certain circumstances’ and ‘I doubt whether it is sufficient excuse for disclosure, in the absence of the customer’s consent, that it was in the interests of the customer, where the customer can be consulted in reasonable time and his consent or dissent obtained.’
Scrutton LJ did not think that the ‘ancient formula’ set out in Parmiter for defamation was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt.
Atkin LJ said: ‘The facts in this case as to the course of business of this bank do not appear to be in any degree unusual in general banking business. I come to the conclusion that one of the implied terms of the contract is that the bank enter into a qualified obligation with their customer to abstain from disclosing information as to his affairs without his consent.’
and ‘I have already stated the obligation as an obligation not to disclose without the customer’s consent. It is an implied term, and may, therefore, be varied by express agreement. In any case the consent may be express or implied, and to the extent to which it is given the bank will be justified in acting. A common example of such consent would be where a customer gives a banker’s reference. The extent to which he authorises information to be given on such a reference must be a question to be determined on the facts of each case. I do not desire to express any final opinion on the practice of bankers to give one another information as to the affairs of their respective customers, except to say it appears to me that if it is justified it must be upon the basis of an implied consent of the customer.’
As to defamatory meaning, Atkin LJ said: ‘I do not think that it is sufficient direction to a jury on what is meant by ‘defamatory’ to say, without more, that it means: were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers but it is obvious that suggestions might be made very injurious to a man’s character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt – for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of the jury might understand as hatred or contempt.’
Bankes LJ, Atkin LJ, Scrutton LJ
[1924] 1 KB 461, [1923] All ER Rep 550, 130 LT 682
England and Wales
Citing:
Cited – Parmiter v Coupland And Another 1840
In an action for libel, the Judge is not bound to state to the jury, as matter of law, whether the publication complained of be a libel or not ; but the proper course is for him to define what is a libel in point of law, and to leave it to the jury . .
Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Turner v Royal Bank of Scotland Plc CA 24-Mar-1998
The plaintiff complained as to the provision of references by his bank. The bank said he had given an implied permission through the bank which had made the request. Later changes in the bankers code of practice would have required explicit written . .
Cited – Elli Christofi v Barclays Bank Plc PatC 19-Jan-1998
A bank’s duty of confidentiality did not arise as regards information received but already known pursuant to statutory duty. The claimant’s writ and statement of claim were struck out as disclosing no cause of action. As regards the allegation of an . .
Cited – Christofi v Barclays Bank Plc CA 28-Jun-1999
A bank is under no obligation of confidence to its customer so as to prevent it disclosing to another party a fact which was ascertainable from inspection of public registers, namely in this case that a caution against registration having been . .
Cited – Berkoff v Burchill and and Times Newspapers Limited CA 31-Jul-1996
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The defendant denied that the words were defamatory.
Held: It is for the jury to decide in what context the words complained of were used and whether . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
Cited – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Lists of cited by and citing cases may be incomplete.
Banking, Contract, Intellectual Property
Leading Case
Updated: 12 November 2021; Ref: scu.216369