- Bookmark
- Share
- CaseIQ
Customs and Excise v. Barclays Bank plc
Factual and Procedural Background
The Plaintiff is the United Kingdom tax authority. In January 2001 the Plaintiff obtained two freezing (Mareva) injunctions—one on 26 January against Company A and one on 30 January against Company B—to restrain dissipation of VAT debts totalling more than £6 million. Each order specifically identified the relevant current account held by the companies with the Defendant bank.
The orders were fax-served on the Defendant at 12:33 pm (Company A) and 11:38 am (Company B). Approximately two hours after each service, internal “operator error” within the Defendant allowed unauthorised payments of £1,240,570 (Company A) and £1,064,289 (Company B). Subsequent judgments against the companies remain unsatisfied. The Plaintiff sued the Defendant in negligence for the sums paid away. The trial judge ruled for the Defendant; the Court of Appeal reversed; the House of Lords heard the Defendant’s appeal on an agreed preliminary issue assuming negligence but testing the existence of any duty of care.
Legal Issues Presented
- Does a bank, once notified of a freezing injunction obtained by a third party against one of its customers, owe that third-party claimant a tortious duty of care to take reasonable steps to comply with the injunction?
Arguments of the Parties
Defendant’s Arguments
- No duty arises absent a voluntary “assumption of responsibility”; the bank’s obligation is imposed by court order, not undertaken voluntarily.
- Even applying the Caparo three-fold test (foreseeability, proximity, and fairness), policy considerations make the imposition of a duty unfair and unreasonable.
- The contempt jurisdiction already supplies adequate sanctions; imposing negligence liability would create disproportionate, indeterminate exposure.
- Recognising a duty would be inconsistent with established principles that adverse parties (or their advisors) owe no duty of care to one another during litigation.
Plaintiff’s Arguments
- The loss was plainly foreseeable and the notice of the order created sufficient proximity.
- The bank’s confirmation letters and its routine compliance infrastructure evidence an objective assumption of responsibility.
- No conflict exists between a negligence duty and the bank’s duty to the court; recognising the duty simply enforces the court’s command.
- Without civil liability the Plaintiff is left remediless because contempt requires proof of intentional flouting, not negligence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Perre v. Apand Pty Ltd (1999) 198 CLR 180 | Labelled policy limb of three-fold test “policy”. | Cited as comparative authority on policy analysis. |
| Sutherland Shire Council v. Heyman (1985) 157 CLR 424 | Incremental approach to new duties. | House favoured incrementalism as cautionary guide. |
| Caparo Industries plc v. Dickman [1990] 2 AC 605 | Three-fold test; incrementalism endorsement. | Framework used but held not to justify a duty here. |
| Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465 | Assumption of responsibility for economic loss. | Distinguished; no voluntary assumption by bank. |
| Ministry of Housing and Local Government v. Sharp [1970] 2 QB 223 | Duties arising from statutory certificate functions. | Considered analogous but ultimately distinguishable. |
| Smith v. Eric S Bush [1990] 1 AC 831 | Liability of valuers to purchasers; limitation of assumption test. | Discussed as example where duty recognised despite disclaimers. |
| Henderson v. Merrett Syndicates Ltd [1995] 2 AC 145 | Assumption of responsibility beyond contract. | Illustrated objective nature of assumption concept. |
| White v. Jones [1995] 2 AC 207 | Extending duty to disappointed beneficiaries. | Cited to show flexibility but factually distinct. |
| Spring v. Guardian Assurance plc [1995] 2 AC 296 | Duty in negligent references; coexistence with defamation. | Examined for non-voluntary reference obligations. |
| Williams v. Natural Life Health Foods Ltd [1998] 1 WLR 830 | When individual directors assume responsibility. | Used to emphasise absence of statements “crossing the line”. |
| Phelps v. Hillingdon LBC [2001] 2 AC 619 | Duties of professionals in statutory context. | Contrasted; bank not providing professional service. |
| Gangway Ltd v. Caledonian Park Investments (Jersey) Ltd [2001] 2 Lloyd’s Rep 715 | Freezing injunction does not create proprietary rights. | Reaffirmed purpose of injunction. |
| Z Ltd v. A-Z and AA-LL [1982] QB 558 | Contempt liability for breach of Mareva orders. | Key authority on contempt exposure of third parties. |
| Z Bank v. D1 & Ors [1994] 1 Lloyd’s Rep 656 | Illustration of serious sanctions for contempt. | Cited to show punishment is real, not “paper tiger”. |
| Searose Ltd v. Seatrain UK Ltd [1981] 1 WLR 894 | Routine nature of banks receiving Mareva notices. | Background on banking practice. |
| Digital Equipment Corp. v. Darkcrest Ltd [1984] Ch 512 | No duty between litigating adversaries. | Relied on to reject analogy that customer owes duty. |
| Business Computers Intl. Ltd v. Registrar of Companies [1988] Ch 229 | No negligence duty during adversarial litigation. | Supported bank’s “adversarial” stance. |
| Al-Kandari v. J R Brown & Co [1988] QB 665 | Solicitor may assume responsibility to opponent. | Distinguished; solicitor there acted voluntarily. |
| X (Minors) v. Bedfordshire CC [1995] 2 AC 633 | Policy favouring remedying wrongs. | Plaintiff invoked to support duty; court unpersuaded. |
| Re Hudson [1966] Ch 209 | No damages for contempt alone. | Noted absence of compensatory jurisdiction. |
| Chapman v. Honig [1963] 2 QB 502 | Same point as Hudson on contempt. | Cited to show lacuna in compensation via contempt. |
| Attorney General v. Times Newspapers Ltd [1992] 1 AC 191 | Third-party contempt principles. | Foundation for requiring intention for contempt. |
| Attorney General v. Punch Ltd [2003] 1 AC 1046 | Further articulation of third-party contempt. | Clarified knowledge requirement. |
| Donoghue v. Stevenson [1932] AC 562 | Foreseeability as basic duty trigger (physical loss). | Contrasted: economic loss needs “something more”. |
| Stovin v. Wise [1996] AC 923 | No liability for pure omissions absent duty. | Analogy: order imposes duty externally, not voluntarily. |
| Gorringe v. Calderdale MBC [2004] 1 WLR 1057 | No automatic common-law duty from statute. | Used to show court order cannot itself create tort duty. |
| Attorney General v. Leveller Magazine Ltd [1979] AC 440 | Definition of contempt’s “gravamen”. | Explained limitation of contempt remedy. |
| Morgan Crucible Co plc v. Hill Samuel & Co Ltd [1991] Ch 295 | Need for lower-level principles below slogans. | Cited in Lord Hoffmann’s analysis of policy. |
| Brooks v. Commissioner of Police of the Metropolis [2005] 1 WLR 1495 | No duty of care by prosecutors to defendants. | Analogy: professional duties ≠ tort duties. |
| Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] QB 335 | Same line as Brooks. | Reinforced lack of negligence duty in prosecutions. |
| Coggs v. Bernard (1703) 2 Ld Raym 909 | Historical roots of “voluntary” undertakings. | Cited in academic discussion on assumption. |
| Anns v. Merton LBC [1978] AC 728 | Broad two-stage duty test later disapproved. | Discussed historically; repudiated. |
| Murphy v. Brentwood DC [1991] 1 AC 398 | Overruled Anns approach. | Part of incrementalism debate. |
| Ultramares Corp. v. Touche (1931) 174 NE 441 | “Indeterminate liability” caution. | Quoted in policy discussion. |
| St George (not expressly named) – no entry | ||
| A v C (Note) [1981] QB 956 | Ancillary freezing relief against third parties. | Referenced for joinder of banks in litigation. |
| TSB Private Bank International SA v. Chabra [1992] 1 WLR 231 | Freezing orders against third parties with defendant’s assets. | Illustrates banks sometimes joined as defendants. |
| Mercantile Group (Europe) AG v. Aiyela [1994] QB 366 | Similar to Chabra. | Same point as above. |
| Norwich Pharmacal Co v. Customs and Excise Comm’rs [1974] AC 133 | Disclosure orders against innocent third parties. | Raised as example of other court orders. |
| Re Hudson [1966] Ch 209 | No civil right to damages for contempt. | Supports lack of compensatory power. |
Court's Reasoning and Analysis
The House observed that three analytical tools guide economic-loss negligence: (1) assumption of responsibility, (2) the Caparo three-fold test, and (3) incremental development. It accepted that the loss was foreseeable but rejected the existence of proximity or policy grounds sufficient to create a duty.
Key points:
- No assumption of responsibility. The Defendant’s obligations were imposed involuntarily by court order; nothing was “said or done” by the bank that could amount to a voluntary undertaking toward the Plaintiff.
- Policy limb of Caparo. Imposing liability would unfairly expose an uninvolved third party to “very large” claims for mere negligence, despite already facing contempt sanctions for deliberate breaches.
- Alternative remedies. The contempt jurisdiction and the Plaintiff’s undertaking to reimburse compliance costs form a coherent remedial structure; grafting tort liability onto it would upset that balance.
- Comparative analysis. No Commonwealth jurisprudence recognises such a duty; analogous English authorities—where duties were recognised—rested on genuinely voluntary services (e.g., solicitors in White v. Jones, reference writers in Spring).
- Litigation posture. While the bank is not strictly an “adverse party,” its compelled role is sufficiently adverse that, by analogy with authorities denying duties between litigants, no negligence duty should arise.
- Incremental caution. Extending liability here would be a “radical innovation” lacking close precedent and potentially imposing duties on any person, even private individuals, notified of a freezing order.
Holding and Implications
Appeal allowed; Plaintiff’s negligence claim dismissed.
Consequences:
- The Defendant is not liable in damages for negligently permitting payments in breach of the injunctions.
- The ruling confirms that third parties notified of freezing orders owe duties only to the court (enforceable through contempt), not to the claimant, unless they voluntarily undertake such responsibility.
- The decision preserves the existing contempt-based enforcement framework and avoids imposing open-ended negligence exposure on banks and other notified parties. No new cause of action was created.
Alert