Barclays Bank Plc (trading as Barclaycard) v Taylor
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE CROOM-JOHNSON,SIR DENYS BUCKLEY |
| Judgment Date | 22 May 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0522-2 |
| Docket Number | 89/0508 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 1989 |
[1989] EWCA Civ J0522-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE IAN KENNEDY)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Croom-Johnson
Sir Denys Buckley
89/0508
and
MR. A. F. B. SCRIVENER Q.C., MR. IAN McCULLOCH and MR. A. R. de WILDE (instructed by Messrs. Edwin Coe and Calder Woods, London Agents for A. J. Adler, LL.B. Hons., Oldham) appeared for the Appellants (Defendants).
MR. J. M. JARVIS Q.C. (instructed by Messrs. Lovell Durrant White (for Barclays Bank) and Messrs. Wilde Sapte (for the other Banks) appeared for the Respondents (Plaintiffs).
Mr. and Mrs. Taylor are aggrieved because the Banks did not oppose the making of orders under the Police and Criminal Evidence Act 1984 ("PACE") authorising the police to inspect Mr. Taylor's accounts, one of which was a joint account with his wife, and did not tell them that the police were applying for such orders. Faced with writs claiming money due to the Banks, Mr. Taylor counterclaimed in the Barclays Bank action and both Mr. and Mrs. Taylor counter-claimed in the Trustee Savings Bank action. The basis of the counterclaims was alleged breaches of the duty owed by the Banks to Mr. and Mrs. Taylor as their customers. On the application of the Banks, Mr. Justice Ian Kennedy struck out the counterclaims as disclosing no cause of action and Mr. and Mrs. Taylor now appeal.
It is common ground that the Banks did not oppose the making of the orders or inform Mr. and Mrs. Taylor that the police were applying for them. The issue is thus purely one of law—were the Banks under any obligation to do so?
The banker-customer relationship imposes upon a bank a duty of confidentiality in relation to information concerning its customer and his affairs which it acquires in the character of his banker. But it is not an absolute duty. It is subject to four well known qualifications. These entitle the bank to make disclosure where:-
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(a) disclosure is under compulsion by law;
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(b) there is a duty to the public to disclose;
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(c) the interests of the bank require disclosure; and
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(d) the disclosure is made by the express or implied consent of the customer.
Authority for these propositions, and examples of their application, are to be found in the speech of Bankes L.J. in Tournier v. National Provincial and Union Bank of England (1924) 1 K.B. 461 at page 473.
In the instant case the Banks made disclosure to the police under compulsion of law, namely in compliance with orders made by a circuit judge under section 9 and the First Schedule of PACE. Mr. Anthony Scrivener Q.C., appearing for Mr. and Mrs. Taylor, submits that this is too simple an answer because it assumes that the orders were properly made. I do not accept this submission. The only assumption which I make is that they were made by a circuit judge and that they were orders which fell within his jurisdiction. Whether any or all the conditions precedent to the making of such an order were satisfied and whether, in the exercise of his judicial discretion, he should have made them is wholly irrelevant, because a court order which is valid on its face is fully effective and demands compliance unless and until it is set aside by due process of law.
It follows that there was no breach of the Banks' obligation of confidence. This is not, however, the end of the appeal because Mr. Scrivener is entitled to argue, and does argue, that the Banks are subject to an implied contractual obligation to take action in support of the confidentiality of its customers' affairs by resisting the making of such an order and by informing their customer when they learn that such an order will be sought.
In considering this submission it is necessary to look in rather more detail at PACE.
Section 9 of PACE provides that:
"(1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.
(2) Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches -
(a) for items subject to legal privilege; or
(b) for excluded material; or
(c) for special procedure material consisting of documents or records other than documents."
"Special procedure material" is defined in section 14 and covers all the information and records which are subject to a banker's obligation of confidence to his customer.
Schedule 1, so far as material, provides as follows:
"1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
2. The first set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing -
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material -
(i) have been tried without success; or
(ii) have not been tried because it appeared that they were bound to fail; and
(c) it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
3. The second set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application;
(b) but for section 9(2) above a search of the premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate.
4. An order under this paragraph is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall -
(a) produce it to a constable for him to take away; or
(b) give a constable access to it,
not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify.
…
7. An application for an order under paragraph 4 above shall be made inter partes.
8. Notice of an application for such an order may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.
…
11. Where notice of an application for an order under paragraph 4 above has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except -
(a) with the leave of a judge; or
(b) with the written permission of a constable, until -
(i) the application is dismissed or abandoned; or
(ii) he has complied with an order under paragraph 4 above made on the application.
12. If on an application made by a constable a circuit judge -
(a) is satisfied -
(i) that either set of access conditions is fulfilled; and
(ii) that any of the further conditions set out in paragraph 14 below is also fulfilled; or
(b) is satisfied -
(i) that the second set of access conditions is fulfilled; and
(ii) that an order under paragraph 4 above relating to the material has not been complied with,
he may issue a warrant authorising a constable to enter and search the premises.
…
14. The further conditions mentioned in paragraph 12(a) (ii) above are -
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;
(c) that the material contains information which -
(i) is subject to a restriction or obligation such as is mentioned in section 11(2)(b) above; and
(ii) is likely to be disclosed in breach of it if a warrant is not issued;
(d) that service of notice of an application for an order under paragraph 4 above may seriously prejudice the investigation.
15. (1) If a person fails to comply with an order under paragraph 4 above, a circuit judge may deal with him as if he had committed a contempt of the Crown Court.
(2) Any enactment relating to contempt of the Crown Court shall have effect in relation to such a failure as if it were such a contempt."
The police, understandably, did not apply ex parte for a search warrant under paragraph 12, but instead applied for a production and disclosure order under paragraph 4. Since paragraph 7 requires the application to be made inter partes someone has to be given...
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