Legal Saga: Vanishing Thieves, Mishcon de Reya Case, and Barclays Bank Claim
A complex legal journey unfolds involving cases of vanishing thieves, solicitors held accountable for breach of trust, and a bank claim disputed in court. Dreamvar Ltd. faces challenges pursuing recovery as Mishcon de Reya escapes negligence claims. In a separate case, Mrs. Philipp's negligence claim against Barclays Bank is met with resistance due to its primary duty and limitations on detective work. Each legal battle adds layers of intricacy, highlighting the intricate web of legal responsibilities and liabilities.
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VANISHING THIEVES VANISHING THIEVES IS ALL LOST? ALL LOST? IS Emma Hughes
Attack Option 3 Attack Option 3: Claims against solicitors holding client monies : Claims against solicitors holding client monies Dreamvar (UK) Ltd v Mishcon de Reya and another [2018] EWCA Civ 1082 Fraudster posed as the owner of a registered property in London. Fraudster was represented by MMS Dreamvar was the purchaser, advised by MdR Dreamvar commenced proceedings: MdR: Negligence, breach of trust MMS: Breach of warranty of authority, breach of an undertaking breach of trust
Dreamvar Dreamvar (UK) Ltd v Mishcon de (UK) Ltd v Mishcon de Reya Reya[2018] EWCA Civ 1082 Both claims for breach of trust succeeded MdR and MMS not liable in negligence Majority of the Court of Appeal refused to excuse MdR s breach of trust under s.61 of the TA 1925, see paragraph [167] (First Instance Decision) As for MdR s position, it is common ground that it is insured for events such as this, and that its insurance cover is sufficient to cover in full the loss suffered, should it not be excused from liability. In terms of balancing the relative effects or consequences of the breach of trust, it is apparent that MdR (with or without insurance) is far better able to meet or absorb it than Dreamvar As I have already found, Dreamvar has no recourse against MMS, and (it appears) no practical likelihood of either tracing or making any recovery from the fraudster. As a result, the only practical remedy it has is against MdR
Dreamvar Dreamvar (UK) Ltd v Mishcon de (UK) Ltd v Mishcon de Reya Reya [2018] EWCA Civ 1082 Gloster LJ s dissent: Paragraph [125]: I do not consider that the fact that MdR is insured should in the circumstances of this case lead to the conclusion that MdR should bear financial responsibility for Dreamvar s loss. Dreamvar was entering into what was for it a relatively substantial property development as a business transaction. I do not consider that the court s sympathy should be with one commercial party (in reality with its loan creditors, given its insolvency) rather than another, simply because one, and not the other, has insurance Accordingly, I consider that MdR ought fairly to be excused from breach of trust and that the court should exercise its discretion in its favour
Attack option 4 Attack option 4: Claims against the sending bank : Claims against the sending bank Philipp v Barclays Bank UK plc [2021] EWHC 10 (Comm) Mrs Phillipp claim against the bank in negligence Bank s application for strike out / reverse summary judgment granted: The duty pleaded by Mrs Philipp would emasculate the bank s primary duty to act on customer s instructions (at [158]) the duty would need to be supported by some clearly recognised banking code (at [159]) Banks cannot be expected to carry out such urgent detective work, or treated as a gatekeeper [of] the commercial wisdom of the customer s decision (at [172]) As between Ms Philipp and the bank Ms Philipp s instruction was real and genuine
Philipp v Barclays Bank UK plc Philipp v Barclays Bank UK plc [2021] EWHC 10 (Comm) On appeal (to be heard 2022): Scope of the Quincecare duty applicability to individual customers Judge s characterisation of the relevance of the CRM Code at paragraph [153]: That the CRM Code is persuasive but not binding in the context of the informal alternative route to compensation which the FOS offers to civil litigation shows, in my view, that the Code cannot really influence the circumstances in which a bank should be held liable in such litigation. By addressing the issue of reimbursement in a situation where an APP Fraud has been perpetrated, it has no bearing upon the common law duty of care to be exercised by a bank in seeking to prevent such fraud in the first place. Like the independent adjudication of the FOS, it can only operate to reduce the prospect of litigation
VANISHING THIEVES VANISHING THIEVES IS ALL LOST? ALL LOST? IS Emma Hughes
