The Supreme Court has recently made an important decision in the case of Philipp vs Barclays Bank, potentially spelling the end of the duty of care known as ‘Quincecare’.
Following this decision, victims of authorised push payment (APP) fraud can no longer rely on Quincecare duty, with the Supreme Court deciding that no such duty exists. Previously, Quincecare enabled fraud victims in certain situations to seek reimbursement from their bank or another payment service provider. The decision is therefore a victory for banks and a weakening of the rights of consumers. It does however provide much needed clarity on the obligations owed by banks towards their customers when it comes to the execution of instructions to transfer funds.
Keep reading to learn more about the duties of banks in cases of fraud, as well as what impact this case will have on their duties of care going forward.
The case originates in 2018, when Mrs Fiona Philipp and her husband, Dr Robin Philipp became victims of fraud. The fraudsters involved used a type of scam called an ‘authorised push payment’, also known as APP fraud.
The fraud involved Mrs Philipp instructing Barclays Bank to transfer £700,000, the couple’s entire life savings, in two separate payments from her current account to bank accounts in the United Arab Emirates. The couple had been successfully persuaded by the fraudsters that they would be assisting law enforcement by doing so. On each occasion the transfer was made, Barclays contacted Mrs Philipp to confirm that she wished to proceed with the payment. They also twice attended a Barclays branch in person to facilitate two international transactions to bank accounts in the UAE. Mrs Philipp subsequently provided confirmation to the bank, giving them direct instructions to make the payments totalling £700,000.
With the money lost, and unable to be recovered by the bank, Mrs Philipp claimed that the Bank was responsible. Philip brought a claim against the bank in which she alleged that the bank should have APP detection procedures in place. She also claimed the bank was in breach of its Quincecare duty to ‘refrain from executing an order of Mrs Philipp if and for so long as it was put on inquiry, by having reasonable grounds for believing that the order was an attempt to misappropriate funds from Mrs Philipp.’
As Mrs Philipp’s claim alleges that the bank should have had reasonable grounds for believing that the instructions were an attempt of fraud, Mrs Philipp claimed that the bank breached its duties for two reasons:
1. By making the payments from her account
2. Not taking effective steps to ensure the money was recovered once the two separate payments were made
What is Quincecare duty?
Originating with the Barclays Bank plc v Quincecare case from 1992, the Commercial Court held that a bank which receives an instruction from an agent of its customer owes a duty to the customer not to execute a payment instruction if it believes that the agent is defrauding the customer for the agent’s own purposes.
This requires banks to therefore take an active role in preventing financial crime by refusing to comply with instructions provided by customers that they believe are an attempt to misappropriate funds.
This was extended with the Court of Appeal’s decision in Philipp v Barclays Bank plc, where it was held that a duty of care should apply as soon as there is the bank is put on inquiry that the instructions may be an attempt to misappropriate funds. Following this decision, Barclays Bank appealed to the Supreme Court.
The Supreme Court allowed the appeal, and held that the Bank did not owe the alleged duty to Mrs Philipp, therefore reversing the Court of Appeal’s decision. It also criticised the Commercial Court’s decision in Barclays Bank plc v Quincecare , stating that it ‘does not withstand scrutiny’.
In the titular case of Philipp v Barclays Bank plc, the Court held that as the instruction’s validity is not in doubt, no inquiries are necessary to ‘clarify or verify what the bank must do’. This applies in other cases of APP fraud where the instruction is clear and given by the customer personally or by an agent who is acting ‘with apparent authority’. Failure to execute the instruction would be a breach of duty by the bank as the customer had personally given the bank the instruction.
While the Supreme Court’s decision recognises the growing issue of APP fraud, it also states that the resolution of who should bear responsibility for the loss of funds should be deferred to lawmakers and regulators rather than the courts.
Mrs Philipps’ alternative case which argues that Barclays was in breach of duty by failing to act promptly in attempting to recall the funds has been remitted to the High Court.
While this case will not be welcomed by consumers, it does provide some much-needed clarity for the courts and banks alike. Furthermore, despite not definitively spelling the end of Quincecare, it does remove a duty of care from banks in cases of APP fraud. It also provides clarity on obligations of banks in relation to the execution of transferring funds.
Nevertheless, responsibilities of banks when it comes to the recovery of funds lost to fraud will be addressed at a later date by the High Court in Mrs Philipps’ alternative case. As a result, it seems unlikely that the topic of a bank’s duties to protect its customers will be put to bed any time soon.
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