It has now been confirmed that the Supreme Court has granted permission to appeal the Court of Appeal's judgment in the Philipp case (UKSC 2022/0075).
In its judgment, the Court of Appeal held that the Quincecare duty was capable of applying in a situation where the bank is on inquiry that a customer's payment instruction is an attempt to misappropriate funds as a result of APP fraud. As such the duty was not restricted to circumstances, as claimed for the bank, where the bank is instructed by an agent on behalf of the bank's corporate customer rather than directly by an individual customer. The duty should also not be limited by concerns that its imposition might be unduly onerous on the bank or the banking system, and that evidence must be brought in support of any such claim. The court found, in principle, that a relevant duty of care could arise in the case of a customer instructing their bank to make a payment where that customer was the victim of an APP fraud, and that a trial was required in order to decide whether such a duty arose in this particular circumstance.
We wait to see whether an appeal is brought, and if the Supreme Court decide to limit the potentially wide-ranging effect of the Court of Appeal decision.
