Julie Exton examines the recent Appeal Court decision in Commissioners of Customs & Excise v Barclays Bank Plc and points out significant implications for all organisations and professionals holding money
Customs & Excise was owed a considerable amount of money by two companies, B and D, which were customers of Barclays Bank. Freezing orders were obtained in respect of the bank accounts and served by fax on the bank.
However, Barclays failed to prevent the transfer of significant amounts of money from the accounts, so that, when Customs and Excise obtained judgments against the companies, there were insufficient funds in the accounts to satisfy the judgments. Customs and Excise claimed in negligence against the bank.
On appeal from the decision of Mr Justice Colman, the Court of Appeal ([2004] EWCA (Civ) 1555) reviewed the modern law of negligence, deriving as it did from four decisions of the House of Lords: Caparo v Dickman [1990] 2 AC 605; Henderson v Merrett [1995] 2 AC 145; White v Jones [1995] 2 AC 207; and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. These cases established three tests:
Foreseeability was, rightly, conceded by the bank. Giving the leading judgment, Lord Justice Longmore said: 'If the bank fails to put in operation any mechanism for preventing the defendants from withdrawing money from their accounts, it is plain that the commissioners may not be able to collect the whole of the payable VAT.'
So far as proximity was concerned, Mr Justice Colman had relied on the principle that adverse parties to litigation owe no duty to one another unless there is an assumption of responsibility. Without such an assumption, there can be no sufficient proximity. The Court of Appeal rejected that approach. The bank was not a party to the litigation, nor was its position adverse or quasi-adverse to the commissioners in the litigation brought against the companies who had failed to pay their VAT.
Once that analysis had been rejected, the relationship in this case was, as Lord Justice Longmore described it, 'about as proximate as one can envisage'.
Lord Justice Peter Gibson went further and said the relationship between the commissioners and the bank had the hallmarks of a contractual relationship. This was because both parties knew that, on the making of the freezing orders, the commissioners would have to reimburse the reasonable costs of the bank.
As for fairness, Lord Justice Longmore put it simply. To him it was 'eminently fair, reasonable and just that the law should require a bank which receives notice of a freezing order to take care not to allow a defendant to flout such an order'.
The courts recognise that freezing orders create burdens and problems for banks, but that is why banks are entitled to charge claimants a reasonable sum for their co-operation; that charge must partly be a recognition that the bank should take care that a client's assets are not dissipated.
Moreover, the fact that the court makes the freezing order in the first place shows that the court's concern is that the defendant's assets should not be dissipated. The court's order is liable to be made futile unless banks do, in fact, take reasonable care to ensure that sums of money in defendants' accounts are preserved until proceedings against them are concluded. For Lord Justice Peter Gibson, the recognition of such a duty of care was a matter of 'practical justice'.
What of the assumption of responsibility? While it was acknowledged that an assumption of responsibility may, on occasion, be sufficient for the imposition of a duty of care, the Court of Appeal did not consider that it was always a necessary ingredient; it was rather the case that the law will use the phrase when it decides that there is to be a duty. Put another way, the relevant question is not whether the defendant has actually assumed responsibility but, as Lord Justice May said in Merrett v Babb [2001] QB 1174, 'whether the defendant is to be taken to have assumed responsibility ... the question in each case is whether the law recognises that there is a duty of care'.
Here there was an assumption of responsibility when the bank received notice of the freezing orders. The law should recognise that a duty of care on the bank arose at that point.
The Court of Appeal has considered the concept of assumption of responsibility again in Precis (521) v William M Mercer Ltd [2005] EWCA Civ 114, in which Lady Justice Arden observed that its precise limits are 'still in a state of development'. However, that case concerned the question whether there had been an actual assumption of responsibility towards the claimant.
The problems caused for banks by freezing orders (or Mareva injunctions, as they were then) were fully considered by the Court of Appeal shortly after they were first introduced (see Z Ltd v AZ & AA-LL [1982] QB 558). It was contemplated in that case that banks could and would exercise reasonable care to preserve a defendant's assets and not allow them to be dissipated.
In Commissioners of Customs & Excise v Barclays, the Court of Appeal considered it was 'but a short step' to hold that they should be liable to a claimant who suffers loss if such reasonable care is not exercised. Indeed, the sort of liability envisaged was not so very different from the kind of liabilities to which banks are well accustomed, for example, liability to their own customers if money is paid out by mistake.
This decision is not just going to affect banks but anyone holding clients' money. Systems will need to be put in place. The particular problem in this case was caused not only because of an operator error but also because use of the bank's 'Faxpay' system enabled the two companies to bypass the bank's central control facility. Law firms with multiple offices may be vulnerable and should ensure that their procedures cater for this sort of situation.
What about orders other than freezing orders? Does this decision extend to third party debt orders (formerly garnishee proceedings)? On the face of it, there seems to be no reason why not. Service of the relevant order will always be important. It may be advisable to take a leaf out of the commissioners' book and serve by fax.
District Judge Julie Exton sits at Bristol County Court
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