Tournier v National Provincial and Union Bank of England

JurisdictionEngland & Wales
Judgment Date1924
Date1924
Year1924
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND. 1923 Nov. 9, 12; Dec. 17. BANKES, SCRUTTON, and ATKIN L.JJ.

Banking - Banker and Customer - Implied Contract between - Obligation of Secrecy - Limitations of.

It is an implied term of the contract between a banker and his customer that the banker will not divulge to third persons, without the consent of the customer express or implied, either the state of the customer's account, or any of his transactions with the bank, or any information relating to the customer acquired through the keeping of his account, unless the banker is compelled to do so by order of a Court, or the circumstances give rise to a public duty of disclosure, or the protection of the banker's own interests requires it.

The plaintiff was a customer of the defendant bank. A cheque was drawn by another customer of the defendants in favour of the plaintiff, who instead of paying it in to his own account indorsed it to a third person who had an account at another bank. On the return of the cheque to the defendants their manager inquired of the last named bank who the person was to whom it had been paid, and was told it was a bookmaker. That information the defendants disclosed to third persons:—

Held (by Bankes and Atkin L.JJ.), that that disclosure constituted a breach of the defendants' duty to the plaintiff, for though the information was acquired not through the plaintiff's account but through that of the drawer of the cheque, it was acquired by the defendants during the currency of the plaintiff's account and in their character as bankers.

By Scrutton L.J., contra, that although the disclosure was a breach of the defendants' duty to the drawer, it was not a breach of their duty to the plaintiff.

APPEAL of the plaintiff from a verdict and judgment in favour of the defendants at the trial before Avory J. and a jury.

The plaintiff was a customer of the Moorgate Street branch of the defendants' bank, and in March, 1922, his account was overdrawn to the amount of 9l. 8s. 6d. The defendants pressed him to pay off the overdraft, and in April, 1922, he entered into an arrangement with them to pay off 1l. a week commencing on April 17. He paid three instalments, and then ceased to make any further payments. On June 8, 1922, he entered the service of a company called Kenyon & Co. under an agreement for a three months' employment as traveller and salesman. Shortly afterwards a cheque for 45l. was drawn in his favour by a company called Woldingham Traders, Ld., who were also customers of the same branch of the defendants' bank, but the plaintiff did not pay that cheque into his account. The cheque was eventually returned to the defendants for payment by the London City and Midland Bank. The manager of the defendants' Moorgate Street branch, a Mr. Fennell, then inquired of the London City and Midland Bank who their customer was for whom payment of the cheque had been collected, and was told he was a bookmaker of the name of Lloyd. Mr. Fennell then rang up Kenyon & Co. on the telephone and had a conversation with two directors of that company, a Mr. Wells and a Mr. Kenyon. He asked for the plaintiff's private address, and told them that the plaintiff was indebted to the bank, and that though several letters had been written to him he had not replied. Mr. Fennell, according to his own evidence, added: “Tournier must be getting money from somewhere or other; I have seen a cheque coming through the bank payable to Tournier and have been informed that one cheque has gone to the credit of a bookmaker's account, and if that is the case he ought to pay the bank off some of his debt.” In consequence of that communication Kenyon & Co. refused to renew the plaintiff's employment when the three months' agreement expired.

The plaintiff brought this action (1.) for slander, and (2.) for breach of an implied contract that the defendants would not disclose to third persons the state of the plaintiff's account or any transactions relating thereto. The slander alleged was twofold: it was alleged in para. 2 that Mr. Fennell said over the telephone to Mr. Wells, “I am afraid that Mr. Tournier is engaged with bookmakers, as we have been able to trace a cheque or cheques passing from Mr. Tournier's account to bookmakers”; and in para. 3 that he said to the other director, Mr. Kenyon, “Tournier's account is overdrawn, and various promises made by him to give the matter his attention have not been fulfilled, cheques passed through Tournier's account were for betting men, and we think that Tournier is betting heavily”; the innuendo being that the plaintiff was an undesirable person to be employed by Kenyon & Co. and a person not fit to conduct their business or to be entrusted with money. At the trial the actual words proved in evidence were slightly different from those above set out in the statement of claim, and also from the evidence of Mr. Fennell. According to Mr. Wells' evidence the words spoken to him were, “As we have been able to trace a cheque or cheques to a bookmaker we are afraid he is mixed up with bookmakers.” Mr. Kenyon said that the words spoken to him were, “He has made various promises to look into the matter and has not done so, and various cheques going through Tournier's account were going to betting men.” On the second head of claim, that for breach of an implied contract of secrecy, the obligation claimed was alleged to be an absolute obligation unqualified by any exceptions. It appeared that in the pass books issued by the defendants to their customers, including the pass book of the plaintiff, there was on the first page a statement that “The officers of the Bank are bound to secrecy as regards the transactions of its customers.”

Avory J. left the following questions to the jury:—

1. Were the words complained of in para. 2 or para 3 of the statement of claim spoken by Mr. Fennell? Answer No. The plaintiff's counsel had asked the judge to add to the question the words, “or words to the like effect,” but the judge had refused.

2. If so, were such words defamatory of the plaintiff, that is, were they calculated to expose him to hatred, ridicule, or contempt in the mind of a reasonable man? Answer No.

3. Has the plaintiff suffered actual damage by the speaking of such words? Answer No. On this head the evidence was that business was not brisk and that Kenyon & Co. would probably have declined to renew the plaintiff's employment in any case.

4. Was Mr. Fennell actuated by malice in speaking the words, that is, was he acting from any indirect motive other than a desire to do his duty? Answer No.

5. Was the communication with regard to the plaintiff's account at the bank made on a reasonable and proper occasion? Answer Yes.

6. What damages? None.

Judgment was thereupon entered for the defendants.

The plaintiffs appealed.

Sir H. Smith K.C. and Pitt for the appellant. The summing up of the learned judge was defective on both heads of the claim. On the claim for slander he omitted to ask the jury whether the words proved to have been spoken by Fennell were the same in substance as those pleaded in paras. 2 and 3 of the statement of claim, and though in actions for slander it was formerly essential to prove the actual words pleaded, that strict rule has been relaxed, and “for a long time it has been held to be enough to prove the substance of the words alleged in the declaration”: per Lord Coleridge C.J. in Harris v. Warre.F1 He refused to ask the jury whether “words to the like effect” had been spoken by Fennell, although in Dalgleish v. LowtherF2 an interrogatory administered to the defendant in an action of slander asking whether he had spoken the words set out in the statement of claim “or words to that effect” was held by the Court of Appeal to be a proper interrogatory. On the claim for breach of the implied contract of secrecy also the summing up was defective, as the learned judge asked the jury the question whether the communication with regard to the plaintiff's account was made “on a reasonable and proper occasion,” without giving them any direction as to the circumstances in which the occasion would be reasonable or proper. In Hardy v. VeaseyF3 where the plaintiff, a customer of the defendants' bank, alleged in his amended declaration that the defendants had communicated the state of his account to a third person in breach of their implied promise not to disclose it “except on a reasonable and proper occasion,” it is true that no direction was given by the trial judge as to what constituted a reasonable and proper occasion, and no objection was taken by the Court to that omission. But it was not necessary to do so. The plaintiff had overdrawn his account, and the third person to whom the defendants mentioned the fact was a moneylender from whom they tried to obtain assistance for the plaintiff, and the only question left to the jury was whether the communication to the moneylender was officious and unjustifiable, the judge telling them that if it was made with an honest intention of getting such assistance he doubted whether the action was maintainable. The jury having found for the defendants, the only objection taken to the summing up was that the latter statement was a misdirection. The Court held that it was not.

J. G. Hurst K.C. and Morle for the respondents. On the claim for slander the judge was right in refusing to add to the question left to the jury the words “or words to the like effect.” “In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends”: per Lord Coleridge C.J. in Harris v. Warre.F4 In that case a statement of claim, which alleged that the defendant had written letters to the chief constable charging the...

To continue reading

Request your trial
219 cases
  • Karpal Singh a/l Ram Singh v DP Vijandran
    • Malaysia
    • Court of Appeal (Malaysia)
    • Invalid date
  • Walsh v National Irish Bank Ltd
    • Ireland
    • Supreme Court
    • 25 January 2013
    ...EVIDENCE ACT 1935 (ISLE OF MAN) S2 BANKERS BOOK EVIDENCE ACT 1935 (ISLE OF MAN) S6 TOURNIER v NATIONAL PROVINCIAL & UNION BANK OF ENGLAND 1924 1 KB 461 GLADSTONE v BRUNNING CP 2004/146 7.3.2006 BRITTAIN v IMPEX SERVICES WORLDWIDE LTD CP 2003/96 26.1.2004 WINE v WINE CP 2007/10 29.5.2007 PHA......
  • Avb v Tdd
    • United Kingdom
    • Queen's Bench Division
    • 12 May 2014
    ...that it was in seeking to enforce claims which she regarded as warranted that she made the disclosures that she did make. 65 In Tournier v National Provincial [1924] 1 KB 461 at pp481 and 486 the court held that there were a number of limits, or qualifications, to an implied contractual dut......
  • Barclays Bank Plc (trading as Barclaycard) v Taylor
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 May 1989
    ...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. 5 In the instant case the Banks made disclosure to the police under compulsion of law, namely i......
  • Request a trial to view additional results
9 firm's commentaries
  • The Very Naughty List: What Happens If Arbitrators Suspect Criminal Activity By The Parties
    • United Kingdom
    • Mondaq UK
    • 9 January 2015
    ...confidentiality in arbitration by the principles of banking confidentiality in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 (CA), where in a famous passage, Bankes LJ "In my opinion it is necessary in a case like the present to direct the jury what are the limits......
  • Bankers: Money-Laundering, Reporting Obligations And The New Criminal Finances Bill
    • United Kingdom
    • Mondaq UK
    • 3 January 2017
    ...is of a confidential nature, and the banker is under a duty of secrecy (Tournier v National Provincial and Union Bank of England [1924] 1 KB 461). This duty applies not only to information obtained from an account, but from any source arising out of the relationship between the bank and its......
  • Reconciling FACTA With Bahamian Laws
    • Bahamas
    • Mondaq Bahamas
    • 30 July 2012
    ...not only by statute but also by the common law. In the leading case of Tournier v. National provincial and Union Bank of England (1924) 1 KB 461, which defined the scope of a bank's duty of secrecy, the court held that a bank had a duty of secrecy to its customer with regard to its customer......
  • Achieving The Balance Between Client Confidentiality And Compliance In Jersey
    • Jersey
    • Mondaq Jersey
    • 29 September 2011
    ...by the Court of Appeal (of England and Wales) in its landmark decision Tournier v National Provincial and Union Bank of England [1924] 1 KB 461. That case recognised the duty of a banker, arising out of contract, not to disclose his clients' affairs. The duty applies to all information that......
  • Request a trial to view additional results
38 books & journal articles
  • ISSUES CONCERNING COMPLIANCE
    • United Kingdom
    • Journal of Money Laundering Control No. 4-2, April 2000
    • 1 April 2000
    ...583. (163) Hapgood (ed.), Pagets Law of Banking (11th ed., 1996) p. 122, citing Tournier ν National Provincial and Union Bank of England [1924] 1 KB 461, at 474. This was approved in Price Waterhouse ν BCCI, above, at 598. (164) Niemietz ν Germany (1992) 16 EHRR 97. (165) Thus the European ......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Dissenting Judgments in the Law Preliminary Sections
    • 28 August 2018
    ...65 (Jul) 193 Thomson v Humphrey [2009] EWHC 3576 (Ch), [2010] Fam Law 351 230 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, [1923] All ER Rep 550, 93 LJKB 449, 130 LT 682, CA 180 Tweddle v Atkinson (1861) 1 B & S 393, [1861–1873] All ER Rep 369, 121 ER 762 84 Tab......
  • Table of cases
    • Canada
    • Irwin Books Bank and Customer Law in Canada. Second Edition
    • 19 June 2013
    ...248 A.R. 241, [1999] A.J. No. 456, 1999 ABQB 305 ........................ 225 Tournier v. National Provincial & Union Bank of England, [1924] 1 K.B. 461 (C.A.) .........................................................195, 324, 325–36 Transamerica Commercial Finance Corp., Canada v. Imperial......
  • If 'Mum' is the Word, is it the Law? Irish Privacy Law: A Comparative Perspective
    • Ireland
    • Trinity College Law Review No. XX-2017, January 2017
    • 1 January 2017
    ...115 [2013] IEHC 136. 116 [2015] IECA 149. 117 Slattery (n 114) [100]; see also Tournier v National Provincial & Union Bank of England [1924] 1 KB 461. 118 ibid [102]. Trinity College Law Review [Vol 20 concerning privacy. 119 McGovern J delved into the law surrounding the application of a r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT