UK: England and Wales: APP fraud and the bank's duty of care

Judgment was given today by the Court of Appeal in Philipp v Barclays Bank UK Plc [2022] EWCA Civ 318. At first instance ([2021] EWHC 10 (Comm), [2021] WLR(D) 60) before HHJ Russen QC, summary judgment was granted, the judge finding that the bank did not owe a duty of care (the Quincecare duty) to its customer in a case of authorised push payment (APP) fraud (a type of fraud where, as a result of the fraudster's persuasion, the customer gives instructions to the bank). Indeed, the judge stated that to impose such a duty of care would amount to "an unprincipled and impermissible extension of the Quincecare duty" (para. [184]).

Today, granting an appeal, the Court of Appeal held that the judge was wrong to grant summary judgment and it ordered that the case should proceed to trial. Delivering the only reasoned judgment, Lord Justice Birss (with whom the Chancellor and Coulson LJ agreed) held that it was possible, at least in principle, that a duty of care could arise where a customer instructs their bank to make a payment where the customer is the victim of APP fraud (para. [78]). The Quincecare duty, his Lordship held, was not limited to situations where the bank received instructions from the customer's agent.