Following on from our Blog post and article from November of last year that looked at the potential liabilities of banks and related parties in the context of authorised push payment (“APP”) frauds, the recent decision of Master Brown in CCP Graduate School Ltd v National Westminster Bank PLC & Anor [2024] EWHC 581 (KB) has again seen the court grappling with the question of the liability of receiving banks, this time considering the potential existence of a “duty of retrieval”.
FCA’s Consumer Duty good practice and areas for improvement update – Constructive Criticism or Hard Discipline?
When considering the FCA’s enforcement of Consumer Duty, it could be likened to a school teacher attempting to discipline a class. The FCA so far is attempting to retain the authority akin to a headmaster with an iron fist, rather than a flailing substitute teacher with a “kick me” sign attached to their back. Whether the FCA has managed to control its proverbial “class” of firms is yet to be seen, although it is issuing out mixed reviews at parents’ evening for some, and detentions for others.
Anatomy of a fraud series – Powers afforded by search and imaging orders
Search orders
Search orders are a form of interim, mandatory injunction which require a respondent to allow the applicant’s representatives to enter the respondent’s premises and search for, copy and remove documents or material for the purpose of preserving evidence and/or property which is or may be subject to an action.
Search orders are, therefore, considered to be one of the most draconian orders a court can make, and particularly so as a respondent may be held in contempt of court for failing to comply with this type of order. Accordingly, the court will only grant a search order where it is deemed necessary in the interests of justice, and case law and the Civil Procedure Rules have put in place various safeguards for respondents, including the duty upon the applicant to give full and frank disclosure and a need to give an undertaking in damages.
The Rise of the Pig Butcher
The “pig butchering” scam is not new but has enjoyed a rapid rise in recent years. So much so, that virtually everyone reading this blog will have been an intended mark at some point, probably without knowing it. Indeed, if you have ever received a message from an unknown number with a random message that apparently wasn’t intended for you such as “sorry I missed my appointment” or “Hi mum, this is my new number” then that probably wasn’t an innocent mistake, it was the start of the long con of the 2020s.
WHO PAYS THE PRICE OF AUTHORISED PUSH PAYMENT FRAUD?
Following on from our recent Blog post about UK Finance’s half-yearly fraud update, in an article published today with the International Banker we look at the increasingly common authorised push payment (APP) fraud and consider what can be done and who might be liable?
Too soon to move on? Supreme Court changes limitation in secret commission cases
The Supreme Court has today provided important clarification on when “deliberate concealment” or “deliberate commission of a breach of duty” by a defendant will extend the limitation period for bringing claims.
The decision is bad news for financial services firms affected by PPI mis-selling claims and other claims in which firms are accused of making secret commissions on financial products, such as interest rate swaps and other derivatives.
UK Finance – Fraud Update
UK Finance has recently published its half yearly fraud update for the first half of 2023, its findings are based on data reported to it by its members, which include financial providers, credit, debit and charge card issuers and card payment acquirers.
Opening salvo – enforceability of litigation funding agreements in a post-PACCAR world?
The recent interim judgment of Therium Litigation Funding A IC v Bugsby Property LLC [2023] EWHC 2627 (Comm) appears to give us an early indication of what might become key battlegrounds between Third-Party Funders and certain funded litigants in the wake of the Supreme Court’s impactful determination in R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28.
Push-ed Back – Supreme Court Considers Quincecare Duty for Authorised Push Payment (“APP”) Fraud Victims
On 12 July 2023, the Supreme Court delivered its widely anticipated judgment in Philipp v Barclays Bank UK PLC. In doing so, the Court has gone back to basics to explain the basis for and scope of a bank’s duty to its customers, and has brought the Quincecare duty back to a narrower footing.
By overturning the Court of Appeal (covered in our previous blog here), and varying the original High Court ruling (which we addressed in another previous blog post), the Supreme Court has again shown that it will not hesitate to redraw the boundaries of duty where it deems them to have been overly broadened. The case also offers useful clarification on the extent of the Quincecare duty, and of banks’ obligations to their customers more generally.
The decision should be a welcome one for banks, notwithstanding that the Financial Services and Markets Act 2023 will soon provide victims of many APP frauds with a different route to recompense (as well as the Contingent Reimbursement Model Code).
Financial Promotions Data Analysed – An Increase in Intervention
Earlier this year, the Financial Conduct Authority published its analysis of its financial promotions data for 2022. That report sheds some interesting light on the FCA’s actions taken against authorised firms, and unauthorised entities and individuals, for breaches of financial promotion rules.
The standout message is clear – the FCA has significantly increased its interventionist activity, in response to what the FCA has said is poor financial promotions compliance.
