Dear Andrew

 

Not quite the answer to your question at the end – but also today the Court of Appeal handed down judgment in Tidal Energy v Bank of Scotland:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1107.html

 

If payor asks its bank to pay (a) Fred; (b) at a specified sort code; and (c) at a specified account number – and the numbers at (b) and (c) do not correspond to Fred – but to an account operated by a fraudster who has duped the payor, the payor’s bank is entitled to debit the payor’s account.

 

Three different paths in the appeal court. I have considerable sympathy with the dissenting view of Floyd LJ that (a) was the important fact for the payor.

 

Happy holidays,

 

Gerard

 

 

A nice little nuts-and-bolts case from Birss J in England to-day, Santander plc v National Westminster Bank plc  & Ors [2014] EWHC 2626 (Ch). Santander, when instructed under the UK "faster payments" scheme to transfer money to a given account at another bank, made a habit of paying the wrong person (sometimes even the wrong bank) or paying twice or even three times. Held: they can regard the recipient bank as mixed up in another's "wrong" for the purpose of getting a Norwich Pharmacal order to reveal the names & addresses of the lucky overpayees -- even though no actual wrong is involved, but only a need to recover misdirected funds under UE. The banks have to break confidentiality as a result. Potentially of considerable practical significance, one would have thought.

A final point arising from a throwaway line at Para.9(v). "Before 1st April 2014, the beneficiary bank needed the authority of its customer for the misapplied payment to be refunded. Since then the Faster Payments system has been changed and member banks may choose not to request debit authority from the beneficiary and return funds directly to Santander." I'd be intrigued to know what right a bank has to debit my account willy-nilly on account of a mere unproved allegation from a third party that money has gone into it that shouldn't have. As it's the beginning of the holiday season, answers on a postcard, perhaps?

Andrew

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