Banking and Finance in UK Law

As to the effect of the ruling in the present case, in my judgment, it is clear that the Court of Justice concluded that the words "debt collection" in the carve out have a meaning capable of being applied to "transactions concerning payments" within the exemption in article 13B(d)(3) (judgment, paragraph 28, last sentence). It then has to be decided whether the actual transaction in question falls within the exemption or the carve out, and this will depend on its precise facts.

In these circumstances, it is right that we should ask ourselves: why do we feel that it would be unjust to allow restitution in cases such as these? The answer must be that, where an innocent defendant's position is so changed that he will suffer an injustice if called upon to repay or to repay in full, the injustice of requiring him so to repay outweighs the injustice of denying the plaintiff restitution.

With all respect to that submission, it seems necessary to point out that nothing in this judgment affects the duties of a bank in the normal case where it is obtaining a guarantee, and in accordance with standard practice explains to the person about to sign its legal effect and the sums involved.

Dr. Wallersteiner obtained control of a public company, Hartley Baird Ltd., by means which were quite unlawful. He acquired 80% of the shares by using its own money. He operated by means of puppet concerns of his own making. All these he brought into his service to further his unworthy ends. His solicitors refused to act further for him. The Board of Trade has ordered an inquiry under the Companies Act. The liquidator of Camp Bird has brought proceedings against him.

The object of the direction, as the Treasury acknowledges, was to shut the Bank out of the UK financial sector, and that has been its effect. Before the direction, the Bank had a substantial international business, much of it international trade finance transacted through London.

While the courts will not usually require decision-makers to consult substantial categories of people liable to be affected by a proposed measure, the number of people to be consulted in this case was just one, Bank Mellat, and possibly also IRISL depending on the circumstances of their case. But the principle which required it is more than a principle of fairness.

No one could have been in the least surprised if the Panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. Its Code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the Panel.