Santander UK Plc v The Royal Bank of Scotland Plc and Others
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 07 September 2015 |
| Neutral Citation | [2017] EWHC 1482 (Ch) |
| Docket Number | Case No: IA 56, 68 AND 74 OF 2013 |
| Court | Chancery Division |
| Date | 07 September 2015 |
[2015] EWHC 2560 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice Strand,
London, WC2A 2LL
Master Matthews
Case No: IA 56, 68 AND 74 OF 2013
In January 2014 I was asked to deal with three paper applications made by Santander UK plc ("the Bank") for Norwich Pharmacal orders, one against each of three separate financial institutions respectively. The solicitors' references were: 218247.000331/ARP/TEG, 218247.000302/ARP/TEG, and 218247.000269/ARP/TEG. The orders sought were for information about the customers of other banks to whom payments had been made by the Bank in error. The information sought in each case was:
(i) the full name of the account holder or holders;
(ii) the address, or the addresses if more than one account holder;
(iii) the email address or addresses of the account holder or holders;
(iv) the telephone number, or telephone numbers if more than one account holder;
(v) the full date of birth of the account holder or holders.
In broad terms, the principal fact alleged was the same in each case. The Bank had made a payment to another bank (the "recipient bank") for the account of that bank's customer (the "third party"), mistakenly thinking that it had its own customer's instruction and authority to make it, whereas in fact it did not. The underlying facts in each case however were of various permutations. Either (i) the customer had instructed the Bank to make a payment and the Bank made it twice, so once with authority and once without, or (ii) the customer had previously authorised a payment and then validly cancelled the authority before payment was made, but despite being informed of the cancellation the Bank nevertheless made the payment, or (iii) the Bank made a payment to an account other than that authorised by its customer, or (iv) the Bank's customer died before his or her instruction to pay was implemented.
In all cases the Bank was unable to debit its customer's account, and the payee neither returned the sum paid nor consented to his or her details being passed by the recipient bank back to the Bank. Although the Bank knew to which recipient bank the payment had been made, and the branch sort code and account numbers concerned, it did not know the identity of the third parties, the recipient bank's customers. The purpose of the application was to obtain this information.
On the paper applications before me I took the view, which was passed to the Bank's solicitors, that the Norwich Pharmacal jurisdiction enabled the court to order that the defendant ( ie the recipient bank) disclose information to the claimant ( ie the Bank) to identify a third party ( ie the recipient bank's own customer) whose wrongdoing or alleged wrongdoing was facilitated by the defendant or in which the defendant was innocently mixed up.
However, I declined to make the orders sought, in each case on the same generic grounds. These were that:
1) There was no evidence of any wrongdoing by the third party before the money arrived in his or her bank account; the cause of action by the Bank against the third party, would be in restitution (unjust enrichment), arising only after the payment was received, because on the evidence the Bank paid the money by its own mistake, not induced or contributed to by the third party; and a claim in restitution (unjust enrichment) did not involve a wrongdoing for the purposes of the Norwich Pharmacal jurisdiction.
2) Even if (contrary to the view in (1) above), the third party was guilty of a wrong within the Norwich Pharmacal jurisdiction, that could only be refusing to pay back the money once received and demand made for its return, because it was not legally wrong in itself passively to receive the money into the third party's own bank account, and yet:
i. there was no evidence supplied in any of the cases of a refusal by the third party to pay (indeed there was no evidence of any response at all); and
ii. the respondent (recipient bank) had not facilitated the non-repayment of the money by the third party to the Bank, and neither was it 'mixed up' in that non-repayment; indeed, its part in the story was over before there was any question of the third party doing 'wrong' by refusing to return the money.
In addition, I said that, even if it had been right to make a Norwich Pharmacal order, I saw no basis on the evidence provided for ordering the supply of any more than the name and address of the third party. Disclosure of telephone numbers, email address and dates of birth would be going too far.
I concluded by saying that if the Bank wished to persist in the applications, there would have to be a hearing, on notice to the defendant. At the time, I heard no more about these applications.
However, on 31 July 2014, Mr Justice Birss delivered judgment in further Norwich Pharmacal applications made by the Bank against a variety of other banks and building societies: Santander UK plc v National Westminster Bank and others [2014] EWHC 2626 (Ch). These cases had been referred to him by the then acting chief master, Master Bragge. The judge made the orders sought, and restated certain principles which should apply to cases of this kind. In our legal system, the law is developed by the judges. My appreciation of this judgment is that, as I attempt to explain below, it represents a significant extension of the earlier law.
However that may be, following that decision the solicitors for the Bank has asked for reconsideration of earlier applications which were refused. These include those under consideration here. I have therefore looked again at these applications in the light of this judgment.
In what follows, it is important to bear in mind that applications of this kind are commonly not opposed. The recipient bank has no interest in the matter beyond not wishing to commit any breach of its duty of confidence to its customer, the third party, and does not want to spend money on legal costs which it cannot recover. So it generally writes a letter to say that it does not consent to the order sought, but does not actively oppose it either. Ex hypothesi the third party does not know about the application and therefore does not (cannot) oppose either. The argument addressed to the court will be from the applicant only.
The first point on which I refused the grant the order sought was that the claim in restitution (unjust enrichment) was not a wrong for the purposes of the Norwich Pharmacal jurisdiction. In the Santander case, however, counsel submitted to Mr Justice Birss that it was, and cited in support the decision of the Court of Appeal in Bankers Trust v Shapira [1980] 1 WLR 1274. The judge considered that decision, and held that a claim in restitution was a wrong capable of justifying a Norwich Pharmacal order.
However, the judge's attention seemed not to have been drawn to the two significant differences between Bankers Trust v Shapira and the case before him (and...
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