Simply put, the Quincecare Duty (derived from Barclays Bank Plc v Quincecare Ltd [1992] 4 All E.R. 363) is defined as a duty for the financial institution to protect its customer from itself where circumstances are such as to put the bank on reasonable inquiry that there may be fraud on the account. After nearly 25 years without a judgment which looked at the duty, the past few years has seen a steady growth of cases citing the duty, with claimants testing where the boundaries of the duty lie.
On 14 March 2022, the Court of Appeal, in Philipp v Barclays Bank Plc [2022] EWCA Civ 318, allowed a case to proceed to trial, finding that the duty does not depend on whether the instruction is being given by an agent (as the High Court had previously found, striking out the claimant’s case). In this case, the customer had herself authorised substantial payments from her account to someone who later turned out to be a fraudster (what is known as an authorised push payment scam). Despite being a potential expansion of the duty, the Court of Appeal held that it was at least arguable that the duty could operate in these circumstances and this should be fully examined at trial.
If successful at trial, this could lead to a significant expansion of the Quincecare Duty and prove problematic for financial institutions given the prevalence of authorised push payment scams, so we watch this case with interest. We will examine the case in a full article, to follow.
It is, therefore, at least possible in principle that a relevant duty of care could arise in the case of a customer instructing their bank to make a payment when that customer is the victim of APP fraud. The second part of my conclusions is that the right occasion on which to decide whether such a duty in fact arises in this case is at trial.
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