APP fraud – Quincecare duty claims against banks replaced by new “retrieval duty” claims

The recent decision in CCP Graduate School Ltd v National Westminster Bank plc and another [2024] EWHC 581 (KB), demonstrates how Claimants are repositioning claims against banks arising from authorised push payment (APP) fraud from breach of Quincecare duty claims to so-called “retrieval duty” claims.

To date, the Courts have been reluctant to strike out such claims on a summary basis allowing them to proceed to trial. It is therefore likely that claimants will continue to frame claims against banks on this basis until the Courts determine the substantive merits of such claims.

APP fraud & the Quincecare duty

In the Philipp judgment, handed down on 12 July 2023 (see our Law-Now here), the Supreme Court decided that the Quincecare duty does not apply to cases of APP fraud where the customer itself unequivocally authorises the bank to make a payment with clear and valid instructions. However, the Supreme Court left open the possibility of Mrs Philipp pursuing a claim to trial based on an allegation that the bank acted in breach of duty in failing to do more to recover the transferred funds once on notice of the suspected fraud (the so-called “retrieval duty”).

Background to the CCP case

Between 13 September and 12 October 2016, CPP gave instructions to the First Defendant bank to make fifteen payments (in aggregate amounting to £415,909.67) from an account held with the First Defendant bank to an account held with the Second Defendant bank.

At the time the payment instructions were given, the account with the Second Defendant bank was under the control of a criminal gang and it was alleged that the criminal gang fraudulently induced CCP to make the payments.

CCP raised a fraud alert on 22 October 2016. However, by that time, most of the funds held by Second Defendant bank had been dissipated and ultimately lost, and only £14,000 could be retrieved.

CCP filed a claim against both banks on 18 October 2022 alleging (i) the First Bank breached the Quincecare duty by making the payments and (ii) the Second Bank breached a duty of care owed to CCP by allowing the funds to be removed from its account by the fraudsters.

High court decision

The banks applied for reverse summary judgment and strike out in light of the Supreme Court decision in Philipp.

As regards the claim for breach of the Quincecare duty against the First Defendant bank:

• The Court summarily dismissed the claim on the basis that it was statute-barred under the Limitation Act 1980 (i.e. the last payment had been made on 12 October 2016 whereas the claim had not been filed until over 6 years later on 22 October 2022).
• Even if the Court was wrong about limitation, it would have struck out the claim in any event since there could be no breach of the Quincecare duty in an APP fraud context following the 2023 Supreme Court decision in Philipp.
• The claimant was not permitted to amend its claim against the First Defendant bank to plead a breach of the so-called “retrieval duty” as the relevant limitation period against the First Defendant bank had also expired for this head of claim against this bank given the timing of the payments.

As regards the claim against the Second Defendant bank:

• The court held that the claim asserted against the Second Defendant bank as originally pleaded included a claim for breach of the so-called “retrieval duty” and so whilst the claimant had applied to make amendments to its claim to more clearly assert a breach of this duty, the amendment to clarify the alleged retrieval duty did not amount to introducing a new head of claim.
• The Court declined to strike out the claim based on an alleged breach of the “retrieval duty” against the Second Defendant bank as this head of claim was not time-barred (as there were still funds left in the account with the Second Defendant bank on 18 October 2016 - being the relevant 6 year date for a claim filed on 18 October 2022).
• It remained arguable that a so-called “retrieval duty” could be owed (even by the Second Defendant bank with no direct relationship with CCP) and this was a head of claim that could proceed to trial.

Commentary 

The Supreme Court’s decision in Philipp has prevented claimants from bringing claims based on an alleged breach of the Quincecare duty in circumstances of APP fraud. However, the Supreme Court’s decision expressly left open the prospect of claimants instead asserting a breach of the so-called “retrieval duty”. It therefore seems that claimants are likely to pursue this alternative avenue when bringing claims against banks in an APP fraud setting. As things currently stand, it is likely that such claims will survive an early strike out application and need to be decided at trial.

It is likely that in most cases the so-called retrieval duty claims will face significant challenges (particularly in a CCP case scenario where the claim is asserted against the receiving bank second in the payment chain where the claimant has no direct relationship with the bank). However, banks will still be put through the time and expense of having to defend such claims to trial until there is a substantive decision on the merits of these claims issued by the High Court (or more senior appeal court) which provides further clarity on the proper boundaries of the “retrieval duty”.

Noting that the issues considered in CCP represent a developing area of law, the High Court has granted the Second Defendant bank permission to appeal. Therefore, the Court of Appeal may provide further clarification on this cause of action in the CCP proceedings.

Article co-authored by Lexi Stefanatos, Trainee Solicitor at CMS.