The Court’s APP-roach to the Retrieval Duty

Background

The law relating to authorised push payment fraud (“APP fraud”) is fast evolving.  There is no doubt that there is significant public interest as more people are finding themselves victim of this growing fraud.  It is now the largest type of fraud in the UK both by number of victims and value of losses.

From October 2024 there are significant changes in the form of the new compulsory reimbursement requirement giving more protection to individuals, micro-enterprises and charities. In addition to this legislative change, the courts have been exploring whether there exists a “retrieval duty” on banks, and the precise scope of such duty.  The recent decision in  CCP Graduate School Ltd v National Westminster Bank PLC & Anor [2024] EWHC is the first case since the Supreme Court judgment in Philipp v Barclays Bank UK plc [2023] UKSC 25 to explore these issues.

Case facts

The facts of this case are relatively straightforward. Over a one-month period CCP’s sole director instructed NatWest to make 15 payments totalling over £415,000 to an account held with Santander.  CCP believed that the payments would be applied as investments by a company called PWG Limited. However, these payments were unfortunately elicited from CCP as part of an APP scam whereby the receiving account (in the name of PGW Consultants Limited) was under the control of a criminal gang. The fraud was discovered on 22 October 2016 and both NatWest and Santander were informed on the same day.  However, only £14,000 was retrieved from the receiving account held at Santander.

In this judgment the High Court considered two applications.  The first of these was a joint effort from the defendants (NatWest and Santander) for summary judgment/ strike out and the second was from CCP for an amendment to their statement of case.

In the first instance CCP issued a claim against NatWest for breaching their Quincecare duty (see our previous article on the Quincecare duty) and Santander for allowing their accounts to be used as instruments of fraud.  Unfortunately, these claims were issued outside of the limitation period, so an application was made by Natwest and Santander for reverse summary judgment/ strike out. Following the Supreme Court judgment in Philipp, a cross application was made by CCP to amend its claim to include a breach of the retrieval duty.

What is the retrieval duty?

It was argued by CCP that “there is a duty in law to take reasonable steps to retrieve or recover the sums paid out as a result of the APP fraud” in essence a “retrieval duty”. It was submitted that if such a duty applied to the sending bank (NatWest in this instance) that it is arguable that such a duty would also apply to the receiving bank.

The decision also acknowledged the widespread practice of banks offering indemnities to the bank receiving payment. An indemnity will normally be offered by the sending bank upon a recall i.e. notification of the fraud and request for the return of funds and protects the receiving bank from any liability which may be incurred as a result of freezing the recipient account and returning funds. In CCP this was described as “…the most obvious step, if not the principal step, that could be taken by a bank which is on notice of a fraudulent scheme…”

Support of a retrieval duty can be found in the comments of Lord Leggat in Phillip v Barclays Bank [2023] UKSC 25 who raised a query as to why steps were not taken sooner to recover the funds and “prompts the question of why the Bank did not take those steps sooner”.  However, this was not an issue that Lord Leggat felt able to deal with at that particular stage in proceedings leaving the door open for the idea of a retrieval duty to be developed.

Decision

In this instance the court summarily dismissed the claim against NatWest and refused permission to amend due to limitation. However, in respect of Santander the court refused to strike out the claim and allowed CCP to amend its case to pursue a breach of the retrieval duty. It is worth noting that an uncertainty of the law in the area was acknowledged and so it remains a question to be answered whether a retrieval duty can be made out and to what extent such a duty exists.

In is an interesting proposition as CCP were not a customer of Santander, yet it was submitted that they “could and should have taken certain steps to retrieve the sums which had been paid out to others…having been put on notice that the Payments were a product of fraud” and that they were in a “special position” to take steps to recover the funds.

What next?

CCP is an interesting case. It compounds the position that Quincecare does not apply to cases of APP fraud but it adds complexity to the legal landscape with the contemplation of a retrieval duty.

The issues in this case are likely to be considered further as it is understood that Santander has been given permission to appeal.  There will certainly be further developments in understanding a banks’ responsibilities and duties in APP fraud cases and it will be especially interesting in light of the new reimbursement requirement.

We hope this article has provided valuable insight and information on the changing law relating to The Court’s APP-roach to the Retrieval Duty. Our team of specialist fraud and financial crime lawyers are dedicated to providing up to date and engaging content on disputes and compliance law relating to fraud and financial crime from a legal perspective. If you have any specific topics or interests that you would like to see covered in The Tenet Fraud Hub or if you have been a victim of fraud then Tenet can help. Please email hello@tenetlaw.co.uk .

The author of this article is Rebecca Craig an experienced litigation lawyer specialising in Authorised Push Payment Fraud cases supporting clients who have been victims in this area and working with the banking industry around the Contingent Reimbursement Model (CRM).