Abou-Rahmah & Anor v Al-Haji Abdul Kadir Abacha & Ors

The appellants in this appeal are the victims of a fraud, and the respondent is a Nigerian bank to which they paid money on the instructions of the fraudsters, for onward transfer to the account of a client of the bank. That client was a party to the fraud, and assisted the fraudsters in money-laundering the payments concerned.

The judge, Treacy J, held that the bank is not liable to the victims either in the equitable tort of knowing or dishonest assistance in a breach of trust, or in restitution for money had and received. The victims seek to reverse those decisions, relying principally on the judge’s finding that the bank suspected, at the time of opening its client’s account, that the client’s principals might in the course of their business be from time to time assisting corrupt politicians to launder money.

The claimants in these proceedings, and here the appellants, are Mr Adnan Shaaban Abou-Rahmah, a lawyer practising in Kuwait, and a client of his, Khalid Al-Fulaij and Sons General Trading and Contracting Company, a Kuwaiti trading company. In May 2001 Mr Abou-Rahmah was contacted by Mr Oumar Bello (the second defendant) on behalf of Mr Al-Haji Abacha (the first defendant) seeking Mr Abou-Rahmah’s assistance in investing about $65,000,000, the capital of a family trust, in an Arab country. Mr Abou-Rahman met Mr Abacha, Mr Bello, and a third man, Mr Aboubakar Maiga, the third defendant, to discuss the matter further. In a series of meetings, the appellants agreed to identify suitable investments and to manage those investments on behalf of the trust. In return the appellants were offered 40% of the trust capital and 15% of its income. A formal agreement was entered into on 14 August 2001.

The three fraudsters claimed that the trust money was in Benin and that bureaucratic conditions involving various payments had to be satisfied before it could be transferred out of that country. Over a period of time the appellants were asked to contribute to those payments. Between August 2001 and March 2002 the appellants paid a total of some US$1.375 million to this end. This appeal concerns two of those payments, a sum of $400,000 paid on 9 January 2002 and a further sum of $225,000 paid on 5 February 2002, in relation to what was said to be VAT payable on the alleged trust money.

These two payments were paid, on the fraudsters’ instructions, into the account of a Nigerian bank, City Express Bank, the fourth defendant (the “Bank”), held at HSBC in London, for onward transfer to a client of that bank, described as Trust International. The Bank transferred equivalent sums of money, in Naira, to its client’s account held at its branch in Apapa, Nigeria. The actual name of the client was Trusty (not Trust) International. Its principals, who used the names of Yusuf Ibrahim and Nasir Saminu, were accomplices in the fraud.

No trust money ever materialised. The fraudsters disappeared. Messrs Ibrahim and Saminu cleared the money out of their company’s account almost as soon, if not before, it had reached it.

The appellants brought claims against the Bank under four heads: for knowing/dishonest assistance, restitution of money had and received, negligence, and breach of a resulting or Quistclose trust. The judge held that all four claims failed. On this appeal, the appellants persevere in only the first two of those claims.

In its defence, the Bank first of all alleged that any claim must fail for reasons of illegality, viz that the appellants, or at any rate Mr Abou-Rahmah, was knowingly involved in a dishonest scheme or was involved in the illegal performance of a scheme in such a way as to disentitle him to relief in our courts. The judge found that that defence failed. There is no respondent’s notice.

As for knowing/dishonest assistance in a breach of trust, the judge agreed with the appellants’ case that the fraud amounted to a breach of trust, but he accepted the Bank’s defence that it did not act with the requisite knowledge or dishonesty: see Royal Brunei Airlines SDN BHD v. Tan [1995] 2 AC 378, Twinsectra Ltd v. Yardley [2002] UKHL 12, [2002] 2 AC 164, Barlow Clowes International Ltd (in Liquidation) v. Eurotrust International Ltd [2005] UKPC 37, [2006] 1 All ER (Comm) 478. The claim was put in knowing/dishonest assistance, not in knowing receipt.

As for the claim for money had and received, the judge rejected the defence that because the appellants had taken the risk of fraud there had therefore been no operative mistake; but he accepted the defence of change of position.

The claims therefore failed.

On 16 January 2006 the Bank’s banking licence in Nigeria was revoked and on 17 May 2006 the Nigeria Deposit Insurance Corporation was appointed liquidator of the Bank under a winding-up order made by the Federal High Court in Lagos. It appears, however, and is not disputed, that that winding-up has not required the stay of this appeal: see Mazur Media Limited v. Mazur Media GmbH [2004] EWHC 1566 (Ch) (unreported, 7 July 2004).

The liquidator has not appointed representation for the Bank at this appeal. Its former solicitors in these proceedings have, however, out of courtesy attended in court, and have been permitted, de bene esse, to explain the position regarding the Bank, (as we have said, it was not disputed that its winding-up did not require the stay of this appeal), and to lodge a document regarding the appeal. We have considered all such matters put to us, but there was no application to make any oral representations. We have not, therefore, heard submissions in response to the appeal, and in form and in substance this appeal has gone undefended. That is a matter of concern to the court, for important issues are potentially at stake. However, Mr D’Cruz, conscious of his responsibility, has addressed his submissions in a fair and frank manner, and has assisted the court generally.

The Privy Council’s decision in Barlow Clowes emerged only after trial, pending judgment. The judge invited, and received, further written submissions in the light of that decision. As a result, the judge expressed the law in this way (at para 43):

“i)

A dishonest state of mind on the part of the person assisting is required in the sense that that person’s knowledge of the relevant transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct.

ii)

Such a state of mind may involve knowledge that the transaction is one in which he cannot honestly participate (eg a misappropriation of other people’s money), or it may involve suspicions combined with a conscious decision not to make enquiries which might result in knowledge.

iii)

It is not necessary for the Claimants to show that the person assisting knew of the existence of a trust or fiduciary relationship between the Claimants and the First to Third Defendants and/or that the Claimants’ monies to Trusty International via the [Bank] involved a breach of that trust or fiduciary relationship.”

On this appeal, Mr Rupert D’Cruz, on behalf of the appellants, has been content to accept that as an accurate statement of the present state of the authorities.

Without intending or attempting myself to restate the authorities, I would merely hazard this analysis. It would seem that a claimant in this area needs to show three things: first, that a defendant has the requisite knowledge; secondly, that, given that knowledge, the defendant acts in a way which is contrary to normally acceptable standards of honest conduct (the objective test of honesty or dishonesty); and thirdly, possibly, that the defendant must in some sense be dishonest himself (a subjective test of dishonesty which might, on analysis, add little or nothing to knowledge of the facts which, objectively, would make his conduct dishonest).

It is the third element which raises a problem of definition in the light of Twinsectra and Barlow Clowes. In commenting on Twinsectra before Barlow Clowes, Snell’s Equity, 31^st ed, 2005, at 692/3 (para 28-46) put the matter in this way:

“The defendant must be proved to have been dishonest in giving his assistance to the trustee’s breach. In applying this standard the defendant is not free to be judged according to his standards of dishonesty. Nor is he to be judged by a purely objective standard of whether an ordinary honest person in his position would regard his conduct as dishonest. Rather, it must be established that he knew that ordinary honest people would regard his assistance as dishonest in all the circumstances.”

In commenting on the subject-matter after Barlow Clowes, however, Snell (current on-line search results, a reference for which I am grateful to Arden LJ) has replaced the above paragraph with the following:

“The defendant must be proved to have been dishonest in giving his assistance to the trustee's breach. In applying this standard, it is clear that the defendant is not free to be judged according to his own standards of honesty. He is judged according [to] the standard of ordinary honest people (Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 A.C. 378). The authorities have in the past been uncertain about whether the trustee also needs to be aware that his conduct would be regarded as dishonest by this standard. The better view is that it is unnecessary for the defendant to take a view on the propriety of his conduct. (Compare Twinsectra Ltd v. Yardley [2002] 2 A.C. 164; [2002] UKHL 165 at [32]-[35] with Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37;[2006] 1 All E.R. 333; at [15]-[16]). A finding that the defendant was dishonest need only involve an assessment of his participation in the light of his knowledge of the facts of the transaction.”

In Twinsectra the House of Lords split (Lord Millett dissenting) on the question whether the dishonesty spoken of in Tan was objective or subjective. The majority (Lord Slynn of Hadley, Lord Steyn, Lord Hoffmann and Lord Hutton) were in favour of a subjective test. As Lord Hoffmann said (at para 20):

“…I consider that those principles [in Tan] require more than knowledge of the facts which make the conduct wrongful. They require a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour.”

Lord Millett, however, was for adopting an objective approach as being more apposite to civil as distinct from criminal liability (at paras 127/134). He would therefore have placed particular weight on the requirement of knowledge, emphasising the traditional description of this head of equitable liability as arising from “knowing assistance”. Lord Hoffmann described Lord Millett’s point of view as that –

“It is sufficient that the defendant knew all the facts which made it wrongful for him to participate in the way in which he did” (at para 19).

Lord Millett (at paras 135/137) under the heading “Knowledge” sought to encapsulate what he thought was the essence of the equitable tort. He said:

“135.

It is obviously not necessary that he should know the details of the trust or the identity of the beneficiary. It is sufficient that he knows that the money is not at the free disposal of the principal. In some circumstances it may not even be necessary that his knowledge should extend that far. It may be sufficient that he knows that he is assisting in a dishonest scheme…

137…The gravamen of the charge against the accessory is not that he is handling stolen property, but that he is assisting a person who has been entrusted with the control of a fund to dispose of the fund in an unauthorised manner. He should be liable if he knows of the arrangements by which that person obtained control of the money and that his authority to deal with the money was limited, and participates in a dealing with the money in a manner which he knows is unauthorised.”

Although Lord Millett ultimately dissented, those passages in which he described the essence of what was required in terms of knowledge are not to be supposed to have gone beyond what the House of Lords as a whole were agreed was needed to bring at least the objective standards of honesty into play.

In Barlow Clowes the principal directors of an Isle of Man company providing off-shore financial services were sued by the liquidator of Barlow Clowes for having dishonestly assisted Mr Peter Clowes to misappropriate investors’ funds. The question arose as to whether the directors knew enough to incriminate them in dishonesty. The trial judge found that they did. The appellate court disagreed. The Privy Council restored the judgment of the trial judge. The single judgment was delivered by Lord Hoffmann. There are passages in the judgment which have raised academic controversy (see for instance LQR 2006 171, JIBLR 2006 377) as to whether the Privy Council has in Barlow Clowes rowed back towards Lord Millett’s views in Twinsectra: see at paras 10/18. For instance, Lord Hoffmann said of his own speech in Twinsectra –

“16.

Similarly in the speech of Lord Hoffmann, the statement (in para 20) that a dishonest state of mind meant “consciousness that one is transgressing ordinary standards of honest behaviour” was in their Lordships’ view intended to require consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour. It did not also…require him to have thought about what those standards were.”

I do not need to enter into that controversy for the purposes of this appeal. It is sufficient to concentrate on what was said in Barlow Clowes about the element of knowledge required to set up an investigation of the subsequent element of dishonesty. For in this respect, the Privy Council underlined that there may be sufficient knowledge (a) in suspicion and (b) despite ignorance that money is held on trust at all. Thus Lord Hoffmann said –

“10.

The judge stated the law in terms largely derived from…Tan…In summary, she said that liability for dishonest assistance requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate (for example a misappropriation of other people’s money), or it may consist in suspicion combined with a conscious decision not to make enquiries which might result in knowledge: see Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469…The Court of Appeal held this to be a correct statement of the law and their Lordships agree…

28.

Their Lordships consider that this passage displays two errors of law. First, it was not necessary…that Mr Henwood should have concluded that the disposals were of money held in trust. It was sufficient that he should have held a clear suspicion that this was the case. Secondly, it is quite unreal to suppose that Mr Henwood needed to know all the details to which the court referred before he had grounds to suspect that Mr Clowes and Mr Cramer were misappropriating their investors’ money. The money in Barlow Clowes was either held on trust for the investors or else belonged to the company and was subject to fiduciary duties on the part of the directors. In either case, Mr Clowes and Mr Cramer could not have been entitled to make free with it as they pleased. In Brinks Ltd v Abu-Saleh [1996] CLC 133, 151 Rimer J expressed the opinion that a person cannot be liable for dishonest assistance in breach of trust unless he knows of the existence of the trust or at least the facts giving rise to the trust. But their Lordships do not agree. Someone can know, and can certainly suspect, that he is assisting in a misappropriation of money without knowing that the money is held on trust or what a trust means: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at para 19 (Lord Hoffmann) and para 135 (Lord Millett)…”

The judge below cited from para 28 of Barlow Clowes and from para 137 of Twinsectra. It appears, indeed, that he considered that the primary argument in this case revolved around the question of knowledge rather than honesty. So much so, that, although the judge made findings about Mr Faronbi’s honesty, it is not possible to identify a separate section of his judgment where the question of honesty (objective or subjective) was considered. Thus, at para 45 he set out four elements of the case advanced by the appellants as to the Bank’s knowledge, and at para 46 he went on to set out five items of evidence relied on as establishing that case. The four elements (para 45) were (i) allowing Messrs Ibrahim and Saminu to open an account which the Bank knew would be used for money laundering; (ii) allowing money to be transfered into that account which it had reasonable grounds to suspect was laundered money; (iii) allowing the HSBC account to be used by Trusty International to transfer money in and out of the country without checking the reasons for the payments; (iv) allowing the money to be transferred into Trusty International’s account even though Trust International was the named beneficiary. The five items of evidence relied on to make that case (para 46) were: (1) the Bank’s local manager, Mr Faronbi, was aware at the time of opening the Trusty International account that it would be used at least in part for laundering money for Nigerian politicians; (2) Mr Faronbi’s conduct in the account opening procedures was lax and fell below the requirements of the Bank’s internal policies for combating money-laundering; (3) Mr Faronbi’s conduct was in breach of Nigeria’s 1993 Money Laundering Decree No 3; (4) the Bank’s HSBC account was provided for the purpose of transferring funds out of and into Nigeria without enquiry as to the source of the funds or the purpose of the payments; (5) the transfer was to Trusty International, not to Trust International, as instructed.

On this appeal, however, no reliance was placed on the Trust/Trusty point ((iv) and (5) above).

The judge found that the evidence did not support most of these submissions as to the facts, and in any event did not make good the appellants’ case as to the Bank’s knowledge. However, it is to be noted that the judge’s reasoning is not without difficulty. Three matters in particular need mentioning.

First, the judge immediately rejected the whole of the appellants’ case on the following basis (at para 47):

“I do not find the allegations to have been made good. In particular, I found no evidence that the [Bank], through Mr Faronbi, was aware of the existence of a situation giving rise to a fiduciary duty owed to the 1^st Claimant, or that such a duty had been breached, or that the funds passing through the [Bank’s] HSBC account were the fruits of the breach of duty, or had been obtained by fraud. There was in this case no evidence of such matters or of any link between the 1^st to 3^rd Defendants and the monies paid into the HSBC account which was known to the [Bank] or its employees. There was no evidence of any link between the 1^st to 3^rd Defendants and the Claimants and/or Messrs Ibrahim and Saminu, which was known to the [Bank] or its employees.”

Mr D’Cruz submits that in this passage the judge had peremptorily rejected the appellants case by committing the two errors which Lord Hoffmann had castigated in Barlow Clowes (a) of demanding too specific a knowledge of the wrongdoing involved and (b) by ignoring the evidence, only subsequently discussed by the judge, relating to Mr Faronbi’s suspicions of Messrs Ibrahim’s and Saminu’s involvement in money-laundering (see below).

Secondly, as to those suspicions, the judge found as follows (at para 48): that Mr Faronbi was, at the time of opening the Trusty International account, aware of widespread practices by which corrupt Nigerian politicians would seek to launder money by sending it out of Nigeria, was aware that Messrs Ibrahim and Saminu were involved in the bureau de change business and thus with international transactions and that such businesses were a common means of laundering money, and was also aware that a substantial number of Trusty International’s clients were politicians. On this basis the judge said that despite Mr Faronbi’s denial of knowing that Messrs Ibrahim and Saminu were aiding corrupt politicians at the time, a denial which he accepted, nevertheless –

“I have come to the conclusion that at that time…Mr Faronbi probably suspected, in a general way that Messrs Ibrahim and Saminu might be in the course of their business, from time to time assisting corrupt politicians to launder money.”

Mr D’Cruz submitted that the judge never gave proper or adequate consideration to the ramifications of that finding (see below).

Thirdly, the judge only subsequently gave further reasons for rejecting the appellants’ case, as follows (at paras 48/51):

“48…There is nothing to show that he had any particular suspicions about the two transactions the subject of this case. I do not consider that this was a situation where he entertained a suspicion and made a conscious or deliberate decision not to make enquiries in case they resulted in knowledge of an untoward nature about these transactions. I accept his evidence and that of Mrs Adeoti [managing director and CEO of the Bank], that to a large extent the economy of Nigeria legitimately operates on cash transactions. Moreover, all receipts and payments out were reported at the relevant time by Mr Faronbi to the Nigerian Drugs and Law Enforcement Agency as required by Regulation 10 of the Money Laundering Decree. He was aware that the agency could then investigate a transaction if it wished. I do not consider that Mr Faronbi acted dishonestly in relation to these transactions. He did not have any knowledge or suspicions concerning these transactions which was such as to render his or his employers’ participation in them contrary to normally accepted standards of honest conduct.

49.

Turning to the second point, although there was evidence demonstrating a laxity in following the [Bank’s] procedures with regard to opening accounts, I do not regard any of the demonstrated failures as indicative of dishonest malpractice as opposed to administrative inefficiency or oversight caused by Mr Faronbi’s informal approach to his customers…

50.

As to the fourth point [point (3) in my summary above], I do not find anything sinister in the failure to report under Regulation 6. This only requires reporting in circumstances of a transaction which is suspicious or unduly complex. I accept Mr Faronbi’s evidence that he did not consider that regulation 6 applied to the two transactions in this case as credible…

52.

In my judgment, then, this head of claim fails as Mr Faronbi (and thus the [Bank]) did not in relation to these transactions fall within the ambit of liability as explained by Lord Millett in Twinsectra (see paragraph 44 above [where the judge had cited para 137 from Lord Millett’s speech]), and did not have dishonest knowledge (in the sense discussed above) of misappropriation from anyone.”

In the light of this reasoning, Mr D’Cruz submits that once Mr Faronbi was found to have credible suspicions of Messrs Ibrahim and Saminu as using their business at least in part for the purposes of money-laundering, it was impossible for the judge to separate out their status as suspected money-launderers from the particular transactions in question in this case. To do so would be to permit the Bank to operate, despite those suspicions, according to standards of business conduct known to be unacceptable. The judge could have come to his conclusions only because he made the errors which beset the appellate court in Barlow Clowes, as demonstrated by the judge’s own reasoning.

In this connection Mr D’Cruz drew to our attention the following matters. First, that the judge’s findings as to Mr Faronbi’s suspicions were fully justified by the evidence given by Mr Faronbi during cross-examination at trial, as to which Mr D’Cruz took us to the relevant passages in the transcript. Secondly, that the judge’s additional findings as to Mr Faronbi’s laxity in following the Bank’s procedures were also fully justified. Thus, the Central Bank of Nigeria’s “Know your customer manual”, provided to all Nigerian banks, was premised on “suspicion of money laundering” (see its para 1, “Introduction” and para 2.7.3, part of “Establishing Identity”, that is to say both identity of individuals and identity of business). Where there was suspicion of money-laundering the Bank’s obligation was to make a “suspicious activity report” to the Central Bank of Nigeria (CBN) and the Nigerian Drugs and Law Enforcement Agency (NDLEA) “before any funds are returned to where they came from” (sic, in bold). The Bank’s own “Anti-Money Laundering Policy” listed criminal offences as including assisting another to retain the benefits of criminal conduct, viz transferring to another person “proceeds that you know or suspect to be criminally derived”, and failing to report knowledge or suspicion of money laundering, viz where a person, “as a result of something he learns in the course of his profession or employment, he knows or suspects that another is engaged in money laundering and fails to report such suspicion or knowledge” to the CBN or NDLEA. The Policy document also stated (at para 7.0) that –

“Suspicious is a personal, subjective thing and thus fails far short of proof based on firm evidence. A person who considers a transaction to be suspicious would not be expected to know the exact nature of the criminal offence or that the particular funds were definitely those arising from a crime.”

Thirdly, that the new Trusty International account’s very first transaction (apart from account opening preliminaries) was the transfer of the $400,000 payment and the associated withdrawals. Thus the payment was made by HSBC on 9 January 2002 and credited to Trusty International’s account on 21 January: but in the meantime the Bank had permitted Trusty International to withdraw very close to the total value of the transfer in a number of withdrawals between 18 and 21 January, in large part in cash. When the second payment, of $225,000 was credited on 12 February, it was withdrawn, entirely in cash, on 12/13 February. After those withdrawals there were no further transactions of any significance.

Fourthly, that in the circumstances the reporting of these payments and withdrawals, which the judge relied upon, was without significance. All transactions of more than Naira 2 million (by a company, or more than Naira 500,000 by an individual) had to be reported, week by week. The payments in question into Trusty International’s account amounted to N52.8 and N29.7 million, and the withdrawals were all of more than N10 million. Indeed, the size of the transactions, compared with the reporting levels, demonstrated the prima facie concern of the authorities with such transfers.

In these circumstances, Mr D’Cruz submitted that to describe Mr Faronbi’s laxity in opening the Trusty International account or permitting its early operation merely as inefficiency or oversight was simply to fly in the face of the suspicions entertained by Mr Faronbi as to the essential honesty of Messrs Ibrahim and Saminu at the time.

In my judgment, these are powerful submissions. It seems to me that once Mr Faronbi suspected Trusty International’s directors of participating in money laundering, on the basis of the judge’s clear findings of what Mr Faronbi was aware of, the distinction which the judge then drew between Mr Faronbi’s suspicions of the business in general and his ignorance about the particular transactions in question in this case becomes a thin line whose value for the purposes of insulating Mr Faronbi and thus the Bank from the necessary complicity is highly uncertain. It is one thing to be negligent in failing to spot a possible money launderer, providing the negligence does not extend to shutting one’s eyes to the truth. It is another thing, however, to have good grounds for suspecting money laundering and then to proceed as though one did not. Money laundering is a serious crime, for the very reason that ex hypothesi its subject matter is the proceeds of crime. It is true that such proceeds are not necessarily those of a breach of trust – they could be the proceeds of drug dealing. But I am doubtful that that possibility provides any protection where there is a breach of trust. It is also true that the growing concern now experienced about money laundering and the international precautions now taken against it must be viewed in the context of public policy rather than on the level of an equitable tort designed to provide remedies in the civil law against knowing assistance in breach of trust. Nevertheless, I do not see why a bank which has, through its managers, a clear suspicion that a prospective client indulges in money laundering, can be said to lack that knowledge which is the first element in the tort.

As Millett J said in Agip (Africa) ltd v. Jackson [1990] Ch 265 at 295:

“It is no defence for a man charged with having knowingly assisted in a fraudulent and dishonest scheme to say that it was “only” a breach of exchange control or “only” a case of tax evasion. It is not necessary that he should have been aware of the precise nature of the fraud or even of the identity of its victim. A man who consciously assists others by making arrangements which he knows are calculated to conceal what is happening from a third party, takes the risk that they are part of a fraud practised on that party.”

In Brinks Ltd v. Abu-Saleh (No 3) [1996] CLC 133 Rimer J had differed from that view, and in Grupo Torras SA v. Al-Sabah (No 5) (24 June 1999, unreported) Mance J had preferred Rimer J’s view to that of Millett J: but in Barlow Clowes at para 28 Lord Hoffmann said that the Privy Council did not agree. I therefore consider that Millett J’s observations in Agip apply in the present case.

However, in circumstances where the trial judge has nevertheless acquitted Mr Faronbi of any dishonesty (even in the absence of any real consideration of dishonesty separately from that of knowledge), and a fortiori in the absence of any submissions from the Bank as respondent, I do not consider it would be right, or even possible, to reverse the judge’s finding on appeal so as to conclude that Mr Faronbi or the bank was dishonest in the Twinsectra sense, even as clarified in Barlow Clowes. If, therefore, this was the only issue in the case, I would have to consider whether the judge’s line of reasoning, which it seems to me is not free from the errors complained of by Mr D’Cruz, would require a new trial. As it is, I will proceed to consider the appellants’ second ground of appeal, in relation to their claim for the restitution of money had and received.

The judge found that the appellants had made the payments under a mistake of fact, and prima facie therefore they were entitled to recover the money in restitution as money had and received.

Nevertheless, the judge also found that the Bank’s defence of change of position had been made good. It was common ground both that mere negligence on the part of the Bank would not be enough to destroy its defence and that dishonesty in the Twinsectra or Barlow Clowes sense was not required to defeat it. There need only be something inequitable, something “capable of embracing a failure to act in a commercially acceptable way” or “sharp practice of a kind that falls short of outright dishonesty” apart from “dishonesty itself” (citing what Moore-Bick J said in Niru Battery Manufacturing Co Ltd v. Milestone Trading [2002] EWHC 1425 (Comm), [2002] 2 All ER (Comm) 705 at para 135, approved in this court at [2003] EWCA 1446, [2004] QB 985 at para 164.

The judge rejected the Bank’s failure to check with the appellants the Trust/Trusty discrepancy as amounting to what was needed. The failure to note the discrepancy was mere negligence, and, even if the Bank had reverted to the appellants, they would have confirmed instructions to pay Trusty International. The judge then concluded:

“91.

Is the position affected by my earlier finding that Mr Faronbi had suspicions that some of the business activities of Trusty International involved assisting corrupt politicians to pay monies in and out of the country? In my judgment the answer to that question is in the negative. Such suspicions as Mr Faronbi had did not relate to these two transactions, and it is the fact that they had properly been reported to the anti-money laundering authorities…

2.

In the circumstances, I hold that the [Bank] changed its position by releasing to Trusty International sums equivalent to the sums paid into the [Bank’s] HSBC account by the 2^nd Claimant. I do not find that the [Bank] acted otherwise than in good faith. I consider that, in these circumstances, it would be inequitable and unjust to subject the [Bank] to a restitutionary remedy when it in reality did no more than that which the Claimants in their deceived state of mind would have wished it to do.”

Mr D’Cruz now challenges this conclusion on essentially the same basis as before, namely by stressing Mr Faronbi’s suspicions about Mr Ibrahim’s and Mr Saminu’s involvement in money laundering. He recognises that he only needs this further ground of appeal to the extent, however, that he has failed in showing dishonesty for the purposes of knowing assistance. He submits, nevertheless, that, for the reasons advanced earlier, such suspicion amounts to that failure to act in a commercially acceptable way which would be sufficient, even in the absence of dishonesty, more or less subjective or objective, to deprive the Bank of a defence of change of position.

The modern starting point for the defence of change of position is the speech of Lord Goff of Chieveley in Lipkin Gorman v. Karpnale Ltd [1991] AC 548. At 580C/G he said this:

“It is, of course, plain that the defence is not open to one who has changed his position in bad faith, as where the defendant has paid away the money with knowledge of the facts entitling the plaintiff to restitution; and it is commonly accepted that the defence should not be open to a wrongdoer…At present I do not wish to state the principle any less broadly than this: that the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively restitution in full. I wish to stress, however, that the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should be called upon to repay, because the expenditure might in any event have been incurred by him in the ordinary course of things. I fear that the mistaken assumption that mere expenditure of money may be regarded as amounting to a change of position for present purposes has led in the past to opposition by some to recognition of a defence which in fact is likely to be available only on comparatively rare occasions…”

Although Lord Goff referred there to the defence as being likely to be available on comparatively rare occasions, there is also recognition that a wider, rather than a narrower, view of the defence is apposite, especially seeing that the prima facie liability in restitution for money paid under a mistake is strict, and occurs even where the payer claimant has been negligent: see Scottish Equitable plc v. Derby [2001] EWCA 369, [2001] 3 All ER 818 at paras 30/31, and Burrows, The Law of Restitution, 2^nd ed, 2002, at 516.

In Dextra Bank & Trust Co Ltd v. Bank of Jamaica [2002] 1 All ER (Comm) 193 (PC) the claimant paid money to the defendant on the assumption that it would be a loan under a secured loan agreement, but the loan agreement was never concluded. The defendant, on the other hand, thought that it was buying the US dollars paid to it under the cheque in exchange for Jamaican dollars, and it paid away the Jamaican dollars to the claimant’s (fraudulent) agents in anticipation of receiving the proceeds of the cheque. The claim in restitution failed because the money had not been paid under a mistake, but merely in anticipation of something which did not materialise. The Privy Council nevertheless went on to consider the defence of change of position and found that it could run even where a defendant, as there (and also as here, in respect of the first payment), had changed its position by way of anticipatory reliance. It also considered a submission by the claimant that “it is necessary to balance the respective faults of the two parties, because the object of the defence is to balance the equity of the party deprived with that of the party enriched” (at para 40). They rejected this doctrine of “relative fault”, even though it had been adopted in the US Restatement of Restitution and in New Zealand, as a hopelessly unstable test, pointing out that they were much influenced by the fact that a claimant can recover “however careless [he] may have been, in omitting to use due diligence”, see Kelly v. Solari (1841) 9 M & W 54 at 59. The Privy Council saw “good faith on the part of the recipient as a sufficient requirement in this context” (at para 45).

The content of this requirement of good faith, or what Lord Goff in Lipkin Gorman had expressed by reference to it being “inequitable” for the defendant to be made to repay, was considered further in Niru Battery. There the defendant bank relied on change of position where its manager had authorised payment out in questionable circumstances, where he had good reason to believe that the inwards payment had been made under a mistake. The trial judge had (a) acquitted the manager of dishonesty in the Twinsectra or Barlow Clowes sense on a claim of knowing assistance in breach of trust, but (b) concluded that the defence of change of position had failed. On appeal the defendant bank said that, in the absence of dishonesty, its change of position defence should have succeeded. After a consideration of numerous authorities, this court disagreed and adopted the trial judge’s broader test, cited above. Clarke LJ quoted with approval (at paras 164/5) the following passages in Moore-Bick J’s judgment:

“I do not think that it is desirable to attempt to define the limits of good faith; it is a broad concept, the definition of which, in so far as it is capable of definition at all, will have to be worked out through the cases. In my view it is capable of embracing a failure to act in a commercially acceptable way and sharp practice of a kind that falls short of outright dishonesty as well as dishonesty itself. The factors which will determine whether it is inequitable to allow the claimant to obtain restitution in a case of mistaken payment will vary from case to case, but where the payee has voluntarily parted with the money much is likely to depend on the circumstances in which he did so and the extent of his knowledge about how the payment came to be made. Where he knows that the payment he has received was made by mistake, the position is quite straightforward: he must return it. This applies as much to a banker who receives a payment for the account of his customer as to any other person: see, for instance, the comment of Lord Mersey in Kerrison v Glyn, Mills, Currie & Co (1912) 81 LJKB 465 at 472. Greater difficulty may arise, however, in cases where the payee has grounds for believing that the payment may have been made by mistake, but cannot be sure. In such cases good faith may well dictate that an enquiry be made of the payer. The nature and extent of the enquiry called for will, of course, depend on the circumstances of the case, but I do not think that a person who has, or thinks he has, good reason to believe that the payment was made by mistake will often be found to have acted in good faith if he pays the money away without first making enquiries of the person from whom he received it” (at para 135).

“The need to make enquiries of Bank Sepah is not a matter to be viewed in terms of a duty of good faith which a person who has received a payment that he has good reason to think was made under a mistake owes to a person who made it. If under those circumstances the payee fails to make enquiry of the payer before disposing of the money he can properly be described as failing to act in good faith because he acts in the knowledge that he may be infringing the right of another despite having the means of avoiding that consequence” (at para 138).

Those remarks were particularly pertinent to that case, being one where the payee bank had reason to suspect that the payer bank was acting under a mistake. After all, once it is recognised that the defence of change of position may be lost even in the absence of dishonesty, the case of suspected mistake is not that much more difficult than the case of known mistake. In the present case, however, Mr Faronbi’s knowledge or suspicions were not directed to the transactions themselves, but to the status of the client, Trusty International and its directors, Messrs Ibrahim and Saminu. The judge, however, considered the matter primarily by reference to the transaction focused factors which were relevant to Niru Battery. He only came to Mr Faronbi’s suspicions subsequently, asking whether the position was affected by them and stating in a sentence that it was not, since they “did not relate to these two transactions”, which had in any event been reported.

In my judgment, however, this fails to attach any proper significance to the judge’s own finding, which, it will be recalled was that Mr Faronbi probably suspected, in a general way, that Messrs Ibrahim and Saminu might in the course of their business be assisting corrupt politicians to launder money. Money laundering is a vice whose prevalence and importance have been reflected in international convention, international cooperation and domestic legislation, in Nigeria as in this country. Despite increasing inconvenience to honest members of the public who wish to open banking accounts, the importance of denying banking facilities to criminals and fraudsters has been well recognised. Nigeria, of all countries, has suffered grievously from the depradations of corruption. What the judge’s finding amounted to was that Mr Faronbi had good reason for suspecting, for the reasons which are stated in the judge’s para 48, that Messrs Ibrahim and Saminu lent themselves to money laundering. Nevertheless, despite those suspicions, he went ahead and opened an account for their company, which he knew was involved in the bureau de change business and thus international transactions.

The judge described this as lax, but seems to have regarded it merely as just another instance of negligence. I do not think it can be so regarded. This is not a case where Mr Faronbi failed, because of being insufficiently observant to the point of negligence, to pick up danger signals in the offing. Mr Faronbi was aware of the danger signals, suspected Messrs Ibrahim and Saminu of being involved in money laundering, but nevertheless went ahead and opened the Trusty International account. Nor therefore is this a case, the common case, where a party deals with a client as an honest man or firm, without any reason for suspicion, and then is used for the purposes of a dishonest transaction. In such a case, the question of the party’s fault or failure, if any, is entirely transaction related, and the question, for the present purposes of the defence of change of position, will be whether that party has merely been negligent at most, which will not be enough to lose him his defence, or whether his conduct can be categorised as commercially unacceptable, which will be enough, even if such conduct falls short of dishonesty. In the present case, however, this transaction based enquiry (the judge’s enquiry), against the background of suspicions of the honesty of the prospective clients themselves, will not suffice.

The bank’s conduct here was not commercially acceptable conduct. It is not commercially acceptable for banks who suspect “in a general way” would-be customers of being involved in money laundering to open up accounts for them. There is no panacea in a standard, statutory, weekly report of all transactions of a stipulated size. The failure to make such a return would have been in itself unlawful and strong evidence of something very seriously amiss. The making of such a return does not make the opening of the account acceptable.

In these circumstances, it seems to me to be, not of course irrelevant, but, as I have indicated, in a very real sense beside the point, that Mr Faronbi did not have suspicions of the particular transactions concerned. For all Mr Faronbi knew, the appellants could have been themselves the agents of corrupt politicians. In fact they were the victims of fraud, just as Messrs Ibrahim and Saminu, as a wholly natural sideline for money launderers, were conspirators with the fraudsters who made the appellants their victims. The very first transaction of these suspected money launderers in their new account was a fraudulent transaction.

I have found nothing in Burrows, The Law of Restitution under the discussion of change of position (at 510/529) nor in relevant parts of Laundering and Tracing, edited by Peter Birks QC, 1995, such as Simon Gleeson’s chapter on “The Involuntary Launderer”, or Richard Nolan’s chapter “Change of Position” (and particularly its section 2.3, “Fault and Change of Position”), or Peter Birks’ chapter 11 “Overview” (and particularly at 323/332 on “Change of Position”) to lead me on the basis of the arguments in play to a different conclusion.

I have asked myself, especially in the absence of respondent submissions, and in circumstances where news of the failure of the Bank came too late to request an amicus brief, whether this conclusion, which I favour, bears too heavily on banks, who are, after all, in the frontline of the battle against fraud and money laundering. I have borne particularly in mind that the transfer to Trust[y] International was exactly what the appellants instructed the Bank to do, but of course oblivious of the fraud and ignorant of the bank’s suspicions. Without the opening of the bank accounts, these transfers could not have been effected as they were. I have reminded myself that negligence is not enough. I have nevertheless concluded that if a bank opens an account for suspected money launderers and nevertheless is justified in saying to defrauded claimants who seek restitution that it is entitled to make good a defence of change of position in the absence of knowledge or suspicions about individual transactions, then the international concern with the vice of money laundering is not being taken seriously, and I fear will not be taken seriously.

I respectfully differ from Lady Justice Arden’s and Lord Justice Pill’s assessment of the facts. (1) There must of course be a relevant causal connection between the change of position and the circumstances in which payment is effected. In the present case, however, such a causal connection exists, because the loss would not have occurred, at any rate in the way in which it occurred, unless the bank had been willing to open an account for Messrs Ibrahim’s and Saminu’s company. (2) I do not agree that the bank did not receive the payments beneficially. It received them in the normal way in which banks receive moneys, that is to say, as the bank’s own funds but subject of course to the rights of transferors and depositors. When the payments had been credited to Trusty International, the moneys remained the bank’s funds. In the case of the first payment, because the bank had allowed Trusty International to make anticipatory withdrawals, the overdrawn moneys were recouped for the benefit of the bank out of the funds provided by the appellants. In the case of the second payment, the relevant change of position, that is to say, the withdrawal of those funds by Trusty International, had not yet occurred. Of course, it is highly relevant, as I have observed, that the appellants’ instructions were to credit Trusty International, and it follows therefore that the appellants did not intend or contemplate that the bank would retain the value of the payments permanently for themselves: but they acted in ignorance of the bank’s suspicions about its customer. The bank had those suspicions before it opened Trusty International’s account and nevertheless wishes to rely on a defence of change of position. (3) The absence of a conviction for breach of Nigerian law is not a critical factor, given the finding of the judge concerning Mr Faronbi’s suspicions about his prospective customers and the CBN’s and the bank’s own relevant guidelines referred to above. (4) For the same reason, namely the judge’s finding of suspicions regarding Messrs Ibrahim’s and Saminu’s involvement in money-laundering, this is not a case which turns on mere suspicion of an area of business. For these purposes, “Know your customer” is the important and well recognised banking watchword. (5) The judge did not make a finding that the bank’s opening of Trusty International’s account was commercially acceptable: he only found, in relation to knowing assistance in a breach of trust, that the critical matter was that there were no suspicions and no dishonesty regarding the two actual transactions.

Finally, looking at the matter in the round, I have asked myself whether the defence of change of position should succeed because, as it may well be said, there has been no unjust enrichment or no enrichment, unjust or otherwise, on the part of the bank. This is to stress unjust enrichment as the critical factor in making good the restitutionary claim. However, the argument at trial and the judge’s judgment, reflecting the way English law has developed, have proceeded in a different way, namely on the basis that a payment made under a mistake of fact (or law) provides a cause of action in restitution subject to a defence of change of position. However, I recognise and am concerned by, the absence of any exploration of the fundamental underpinnings of the doctrine of restitution in such a case, especially as there is controversy about them, and it may be said that the law is in flux or at any rate subject to a process of analytical change.

In sum, can it be said that a party who opens up an account for a prospective client who is suspected of lending himself to money laundering should have a defence of change of position just because he is unable to identify, and cannot be blamed for failing to identify as suspect, individual dishonest transactions? I think not. This would be to lose the wood among the trees. I have therefore concluded that, on the facts found by the judge and the arguments addressed to him and to us, the opening of the Trusty International account was a failure to act in a commercially acceptable way, even if Mr Faronbi was not dishonest. The opening of that account was directly and causally related to the loss of the payments concerned. Accordingly the Bank has failed to make good its defence of change of position. I would therefore have allowed this appeal on the ground of restitution. I recognise, however, that there is a grave disadvantage in the lack of adversarial argument. Having regard to that, and to the judgments of Pill and Arden LJJ, and to the importance of the subject-matter and the state of flux in the fundamental analysis of restitutionary claims, I do not press my opinion to a dissent.

In this appeal, there are two principal issues. The first is whether the respondent (“the bank”) is liable for dishonest assistance in a breach of trust (“the dishonest assistance issue”) and the second is whether the bank is entitled to rely on the defence of change of position in respect of the claim for money had and received (“ the change of position issue"). In summary, my conclusions on these issues and reasons for those conclusions are as follows:

This appeal arises out of an action in which the appellants, who are the victims of a fraud, seek to recover their losses from the bank, which had an account at HSBC Bank plc (“HSBC”) in London into which the appellants’ money was paid. Between August 2001 and March 2002 the appellants paid a total of some US $ 1.375 million. We are concerned with two payments, one of $400,000 on 9 January 2002 and a payment of $225,000 on 5 February 2002. The payments were made by SWIFT to the bank’s account at HSBC for the benefit of “Trust International”. The bank (correctly) took the beneficiary to be TI, a customer of the bank with an account at its Apapa branch. The payments were transferred in naira to the account of TI at Apapa, and from there they were withdrawn. Persons associated with officers of TI had led the appellants to make the payments by fraudulent misrepresentations and they disappeared with the money.

The appellants started proceedings against the bank, alleging so far as relevant dishonest assistance in a breach of trust and restitution of money had and received. The dishonest assistance was alleged to occur when the payments were received by the bank at its account with HSBC and when sums were paid out of TI’s Apapa account on TI’s instructions. Knowledge was to be inferred from the size of the transactions and the alleged failure to carry out proper checks for money laundering. On the claim for money had and received, the appellants’ case, so far as relevant, was that TI was known to be involved in money laundering and that accordingly the bank should have checked whether the appellants’ intended to make payment to it when the beneficiary was described in the SWIFT transfers. These two claims failed. The bank has entered liquidation and is not represented on this appeal. The appellants challenge the judge’s conclusions on both dishonest assistance and their claim for restitution of money had and received.

The judge, Treacy J, gave a long and careful judgment, which is now reported at [2006] 1 Lloyd’s 485. He accepted that there was a fiduciary relationship in the nature of a partnership or joint venture between the appellants and the first to third defendants, that is, the persons who had induced them to part with their money. I need not go into the basis of the judge’s finding on that issue as it is not challenged in any way. Having considered (inter alia) the Barlow Clowes case, he held that in making the payments out of TI’s account the bank did not act with the requisite dishonesty. He found that the bank did not know of the situation giving rise to the fiduciary duty or breach or that the payments had been obtained by fraud (judgment, para. 47). He found that the manager of the bank’s branch at Apapa, Mr Faronbi:

“did not know, but probably suspected , in a general way that Messrs Ibrahim and Saminu [the controllers of TI] might be in the course of their business, from time to time, assisting corrupt politicians to launder money. There is nothing to show that he had any particular suspicions about the two transactions the subject of this case. ” (judgment, para. 48)

The judge also held that, although he was satisfied that the appellants had made the payments under a deception, there was no mistake as to the recipient and that was TI. He then considered the defence of change of position and the decision of this court in Niru Battery Manufacturing Co v Milestone Trading Ltd and Others [2004] QB 985. The judge rejected the argument that the bank was not able to rely on that defence because it had (through Mr Faronbi) suspicions that some of the business activities of TI involved assisting corrupt politicians. He held that the bank was entitled to rely on the defence of change of position because it had no suspicions about the transactions in question. Accordingly, the claim for the money had and received also failed.

This is the first opportunity since the decision in the Barlow Clowes case that this court has had to consider the element of dishonesty required for liability as an accessory in a breach of trust. As the facts of this case show, a claim based on liability for assistance in a breach of trust can arise in the context of ordinary commercial transactions, and there is thus a need for the law to be clear. The decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, on appeal from the Court of Appeal of Brunei Darussalem, had been taken to establish for the purposes of English law that dishonesty was required before liability for assisting in a breach of trust could be imposed (see, for example, Lewin on Trusts, 17ed 40-22 to 40-25; Knowing receipt: the need for a new landmark, by Lord Nicholls, Chapter 17, Restitution, Past Present and Future ed by Cornish, Nolan, O’Sullivan and Virgo (Hart, 1998).) Indeed, in the Twinsectra case, Lord Hutton accepted that the House should follow the holding in the Royal Brunei case that dishonesty was a necessary ingredient of liability for assistance in a breach of trust precisely because “the statement of that principle by Lord Nicholls had been widely regarded as clarifying this area of the law” (para.[36]). The decision in the Royal Brunei case was based on English authorities and drew no distinction between the law of Brunei and that of England and Wales. Lord Nicholls, giving the advice of the Privy Council, held that “the standard of what constitutes honest conduct is not subjective” (page 389) and gave other indications that consciousness of wrongdoing was not required for accessory liability for breach of trust.

The subsequent decision of the House of Lords in Twinsectra Ltd v Yardley [2002] 2 AC 164 was widely interpreted as requiring both an objective and subjective test to be applied to the question of standard. In the case of the subjective test, that would mean that the defendant would not be guilty of dishonesty unless he was conscious that the transaction fell below normally acceptable standards of conduct. The Privy Council in the Barlow Clowes case has now clarified that this is a wrong interpretation of the Twinsectra decision. It is not a requirement of the standard of dishonesty that the defendant should be conscious of his wrongdoing. Snell’s Equity now refers to this as the “better view” (31^st ed, para.28-46 as updated).

On the basis of this interpretation, the test of dishonesty is predominantly objective: did the conduct of the defendant fall below the normally acceptable standard? But there are also subjective aspects of dishonesty. As Lord Nicholls said in the Royal Brunei case, honesty has "a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated" (page 389 and see generally pp 389 to 391). In this case, the judge applied the Barlow Clowes decision without asking himself, on the basis that Twinsectra was binding on him under the doctrine of precedent and the Barlow Clowes case, as a decision of the Privy Council, was only persuasive authority, whether the interpretation in that case was one he would himself have come to (see the citation from the judge's judgment set out in para. 14 of the judgment of Rix LJ). Adherence to the doctrine of precedent is important as it helps to create and maintain legal certainty. On the other hand special factors can arise with respect to decisions of the Privy Council, as opposed to the other courts for jurisdictions outside England and Wales, as the decisions of that body have frequently paved the way for changes in the law of England and Wales and are from time to time taken to decide authoritatively questions of English law. The members of the Privy Council are also usually members of the Appellate Committee of the House of Lords. These factors led Baroness Hale in the recent case of re Spectrum Plus Ltd [2005] 2 AC 680 at [163] to call for reconsideration of the rule of precedent that the Court of Appeal or the High Court is bound by decisions of the Court of Appeal in a case where the earlier decision of the Court of Appeal has been expressly disapproved by the Privy Council on appeal from a country where the law on the subject is the same as that of England and Wales.

Likewise the Criminal Division of this court in R v James [2006] EWCA Crim 14 followed the decision on provocation of the Privy Council in Attorney General v Holley [2005] 2 AC 580 (on which nine members of the Appellate Committee of the House of Lords sat) in preference to the decision of the House of Lords in DPP v Morgan Smith [2001] 1 AC 146. This court concluded that the Privy Council had expressly set out to clarify English law and that after its decision an appeal to the House of Lords would have been a “foregone conclusion”. By that the court must have meant that for all practical purposes the result would have been a foregone conclusion. Unlike the position in this case, this court in James had to take the more extreme step of declining to follow a decision of the House of Lords. It indicated that the circumstances would have to be most unusual before the court could follow a decision of the Privy Council in preference for a decision of the House of Lords.

Accordingly, in my judgment, before this court or the High Court decides to follow a decision of the Privy Council in place of a decision of the House of Lords the circumstances must be quite exceptional and the court must be satisfied that in practice the result would be a foregone conclusion. In my judgment, the circumstances of this case are also exceptional and justify the course which the judge took for the following reasons:

For all the above reasons, I consider that the judge was right to proceed on the basis that the law as laid down in the Twinsectra case, as interpreted in the Privy Council in Barlow Clowes, represented the law of England and Wales.

In considering the decision in the Barlow Clowes case, I would acknowledge in addition to the articles to which Rix LJ referred in para. 22 of his judgment the case note entitled Dishonesty in the context of assistance – again [2006] 65 CLJ 18 by Conaglen & Goymour.

I now turn to consider the application of the test of dishonesty as established in the Barlow Clowes case to the present case. Mr Faronbi had at the time of opening the account suspicions as to whether TI might from time to time be engaged in money-laundering. These suspicions did not spring from information about any particular transaction in which TI had been involved but from knowledge that use of a bureau d’exchange was a common means of laundering money and that TI’s clients included a substantial number of politicians who, if corrupt, would commonly seek to launder money by sending it out of the country using businesses such as TI. Moreover, reliance is placed on the fact that the transactions in relation to the payments of $400,000 and $225,000 followed within three months of the account being set up.

However, on the judge’s findings, we are not concerned with a situation where the bank had suspicions about these particular payments when the various transactions took place. As already explained, the judge held that “There is nothing to show that [Mr Faronbi] had any particular suspicions about the two transactions the subject of this case.” I do not consider that this court can go behind the judge’s findings about the state of knowledge of the bank. The question is whether a bank, with inter alia the general suspicions which the bank had on the judge’s findings, would be treated as having acted honestly according to normally accepted standards. The judge reached the conclusion that these general suspicions did not make the bank dishonest. In my judgment, the judge was right on this issue of dishonesty, on the findings he made. The court is entitled to take into account that the fact that these events occurred in a commercial setting which obliges banks to act on proper instructions. Mr Faronbi complied with the regulatory requirements for the reporting of large transactions. The evidence was that cash payments are commonly made legitimately in Nigeria. The highest that it can be put is that the bank had suspicions about TI’s possible involvement in the money-laundering of money at the instance of corrupt politicians. But it had no knowledge of any specific act of dishonesty by TI and it had no grounds for believing that the appellants were, or were associates of, politicians and it had no particular suspicions about the transactions in question. There was no finding that in those circumstances a bank would normally raise additional inquiries of any person or decline to act. Thus, the lack of particular suspicions about the transactions in question in my judgment diminished Mr Faronbi’s general suspicions for the purpose of those transactions to an extent that it was no longer commercially unacceptable for the bank to implement the instructions that the bank had received.

In the circumstances it is unnecessary for me to deal with the challenge to the judge’s finding that the bank did not know about the existence of a situation giving rise to a fiduciary obligation or its breach. I would thus dismiss the appeal on the dishonest assistance issue. I do not consider that this is an appropriate case in which to order a retrial.

As I have explained, the judge found that the bank’s suspicions of the impropriety of the bank's customers did not relate to the two transactions in question, and therefore they did not disentitle the bank from relying on a defence of change of position. He also found that the failure to make further inquiries did not amount to commercially unacceptable conduct and therefore bad faith. Rix LJ considers that, in the light of the suspicions which the bank had when setting up the account and the importance in policy terms of creating a deterrent where a bank acts for a customer suspected of money-laundering, the bank is precluded from relying on a defence of change of position.

We have been shown the bank’s internal manual on the procedures for establishing new accounts and Decree No 3 dated 28 February 1995 issued by the government of Nigeria on money laundering. These documents show that banks are expected to take steps to minimise the risk of their facilities being used for the laundering of money. Those steps include the identification of customers before they open accounts and confirmation of identity before specific transactions are carried out. Under Decree No 3, a bank can incur criminal liability for money laundering if for example it aids or abets, or collaborates in, money laundering or if it fails to make a report to the Central Bank which it is required to make because the transaction is over a certain sum. In the case of a corporate customer this sum is 2m naira (a limit exceeded by both payments in this case). However it is not, as I read Decree No 3, an offence for a Nigerian bank to carry out a transaction for its customer where it has made the necessary checks and fulfilled any other compliance obligation, such as making a report to a public authority, and is not aware or does not suspect that the transaction involves money laundering. Banks are not required to detect financial crime, but to have procedures for the identification of customers which make use of the banking system for such purposes more difficult. Both payments in this case exceeded the minimum figure for mandatory reporting. If a bank decides to go ahead with a transaction over the specified size, it must “take appropriate steps to prevent” money laundering and report the transaction to the central authorities (Decree, reg 6(2)). The bank would be obliged to make its own further enquiries if for example it appeared that the transaction had no economic justification.

Mr Rupert D’Cruz, for the appellants, submits that the bank committed a criminal offence by opening the account and by conducting business on that account. He submits that that amounts to assisting a person to retain the benefits of criminal conduct and that that is an offence under Decree No. 3. I should add that we have no expert evidence about the law of Nigeria and no breach of the law of Nigeria on the part of the bank is pleaded. I am not satisfied that the bank committed an offence by opening up an account for TI because all that the judge found was that Mr Faronbi suspected that TI might be involved in money-laundering, not that it was in fact so engaged, and its suspicions were based on the type of business it had not on the knowledge of any particular business it had conducted. I proceed on the basis that it had fulfilled all the compliance requirements required of it as there is no finding to the contrary. (I do not read the judge’s findings about regulation 6 in para.50 of his judgment as a finding that there was any failure to comply with money-laundering regulations). Nor am I satisfied that the bank committed an offence by giving effect to the instructions from the respondents to transfer monies to the account of TI and by giving effect to TI’s instructions to withdraw money from that account. The bank (correctly, as it happens) did not consider that those transactions involved money laundering and it is difficult to see why the bank should commit an offence in those circumstances even if at the time of opening the account it had suspicions, based only on knowledge of general market practice, about the business which might be engaged in by TI.

In his evidence, Mr Faronbi, manager of the bank’s Apapa branch at the time, accepted that it was common in Nigeria for politicians to take money representing bribes out of Nigeria and to bring it back in again in a way which disguised its illegal source. The bank indeed alleged that the payments made by the appellants in this case represented bribes but the appellants denied that allegation and it was rejected by the judge. Mr Faronbi accepted that he knew when the account was set up that some of Trusty International’s clients were politicians who would be laundering money. However, the appellants were not politicians.

The defence of change of position was established in the Lipkin Gorman case. It was not comprehensively defined. Lord Goff, with whom Lord Bridge, Lord Ackner and Lord Griffith agreed, held:

“At present I do not wish to state the principle any less broadly than this: that the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively, to make restitution in full.”

In the later case of Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER 818, the Privy Council, although not called upon to apply the defence of change of position as the claim to money had and received failed, rejected the balance of relative fault test. On the basis of this decision, fault is not necessarily a bar to relying on change of position.

The idea that it was necessary to show lack of bad faith was rejected by this court in the Niru Battery case. This court held that good faith was the touchstone of liability and that good faith was incapable of definition. This court referred to the situation where a payment was received and the instructions were ambiguous so that the recipient ought in good faith to go back to the payer before dealing with the funds. In those circumstances, this court thought it unlikely that the recipient would be able to establish the defence of change position if he failed to make those enquiries.

I agree with Rix LJ that the judge’s reasoning was somewhat narrow and that the question whether in all the circumstances, the bank acted in good faith, cannot be answered simply by looking at the circumstances of the particular transactions without reference to any of the surrounding circumstances. But there must be circumstances which would indicate that the instructions should not be complied with. The circumstance of the opening of the account was a suspicion that from time to time the bank's new customer might from time to time be engaged in money laundering. That put the bank on its guard and it had to make further enquiries to remove that doubt if its suspicion persisted in an individual transaction. But the two payments with which we are concerned did not constitute money-laundering and the bank had no particular suspicions about them. I accept that it can be argued that, if the bank had never opened the account, the payments would never have been made, but this indirect form of causation is in my judgment not justified in circumstances where the bank discharged its obligations under the money laundering decree.

To treat the defence of change position as unavailable in this situation is as I see it an insufficiently nuanced approach. Of course, once the bank had formed a suspicion about its customer, it had to be aware of that suspicion in all its dealings with the customer. But the bank had done all that it had to do to remove that suspicion by complying with the requirements of Nigerian law on money laundering and by being satisfied that it had no other residual doubts about the two payments. The imposition of liability in this case would serve to motivate banks not to act for customers in areas of business which gave rise to a general suspicion of money-laundering even where there was no information or suspicion that the customer was so involved. It seems to me that that is a road down which the court should not go, at any rate without fuller submissions than we have had. It would be different if as in the Niru Battery case there were further enquiries or steps which the bank should have made or taken, but that is not the appellants’ case. In all the circumstances, I do not consider that the bank can be criticised for making the two payments, and accordingly in my judgment it is entitled to the defence of change of position.

I accept that it is important to deny banking facilities to criminals and fraudsters in Nigeria and elsewhere, especially where there is corruption among those who hold public office and the trust of their peoples. I would also accept that sometimes the law should be an instrument for promoting higher commercial or other standards in the public interest but this must be on a principled basis. For the reasons already given and those given below I do not consider that to hold that the bank is not entitled to rely on a defence of change of position in the circumstances of this case would be to proceed on a principled basis.

With deference to the views of Rix LJ in this case, I do not consider that the bank here can be said to have acted otherwise than in good faith. Moreover, lack of good faith must in my judgment be related to the change of position, that is to say it must relate to the circumstances in which monies were received or in which they have been discharged, thus giving rise to the defence. Thus in this case, the fact that the bank opened an account when it had suspicions of possible money laundering does not amount to a lack of good faith when those suspicions did not extend to the payments under consideration in this case. It is not the function of the court in deciding whether a defence of change of position is made out to punish a defendant for conduct which is unrelated to the transactions on which the cause of action of the claimant is based. In addition, it is a relevant consideration that the bank did not receive any funds beneficially as its enrichment by the payments made by the appellants was of a lesser degree than where a party receives funds for its own use and benefit.

I have been unable to find a case directly in point on this issue. However, the question is in principle analogous to the question that arises when the cause of the change of position has no causal connection with the circumstances in which payment was made, as when a payment is made under a mistake but the monies are then stolen from the unintended recipient by a thief. The answer which this court has given is that there must be a causal link between the mistaken receipt and the change of position before the defence of change of position can be established: see Scottish Equitable plc v Derby [2001] 3 AER 818. If this were not so, the law would develop in an unprincipled way. As Professor Burrows wrote in the Law of Restitution (2^nd Edition) at page 514:

“Unless the subject is to disintegrate into a case by case discretionary analysis of the justice of individual facts, far removed from principle, it is imperative that, even on the wide formulation, there is a sufficient causal link between the defendant’s unjust enrichment and his pecuniary loss.”

There are many different situations that can arise in which the defence of change of position might be relied on. For example, a party receives funds in circumstances where he has suspicions that there has been a fraud on another person. He may take all necessary steps to clarify whether there was such a fraud and have reasonably satisfied himself that there was no such fraud. In that situation it is difficult to say that he acted otherwise than in good faith. Suppose further that the payment is made but in fact constitutes a different fraud on a different person. Where the recipient knew of circumstances constituting a possible fraud, he would not be entitled to say that he acted in good faith even if the payments which are actually made are not a fraud of that kind but a fraud of some other kind, unless he had taken appropriate steps to resolve the question whether there was a fraud of the kind he suspected. In that situation, it seems to me that the recipient has taken the risk of fraud and the fact that some different fraud had occurred would not avail him.

Given that the judge found on the facts that the bank had no particular suspicions of money-laundering at the time of the two payments in question, I do not, for all the reasons given above, consider that the bank can be deprived of its defence of change of position for acting on those instructions.

For the reasons given above. I would dismiss this appeal.

I gratefully adopt the statements of facts and issues by Rix LJ and Arden LJ.

I do not consider that the disputed question whether subjective dishonesty is necessary to establish dishonest assistance, which has loomed large in the preparation of judgments in this case, has any bearing upon the outcome of the appeal. If viewed objectively, the conduct in relation to the relevant transactions, of Mr Faronbi, the Bank’s local manager, were to be held to have fallen below normally acceptable standards, it can readily be inferred that he knew it did so that his conduct would have amounted to dishonest assistance. I would expect that to be the position in the great majority of ordinary commercial transactions.

I agree with Rix LJ that it is not necessary in this appeal to resolve the question of the impact of Barlow Clowes [2006] 1 All ER 333 upon Twinsectra [2002] 2 AC 164. The case does not turn upon it and we have heard argument, though very fairly presented, from only one party.

Putting it at its highest, however, it will not exclude the need, in some cases, to consider the defendant’s state of mind. It may be helpful to set out the commentary of Lord Hoffmann in Barlow Clowes on Twinsectra. Having referred to a statement of Lord Hutton, at paragraph 35, Lord Hoffmann stated:

“15.

Their Lordships accept that there is an element of ambiguity in these remarks which may have encouraged a belief, expressed in some academic writing, that Twinsectra had departed from the law as previously understood and invited inquiry not merely into the defendant's mental state about the nature of the transaction in which he was participating but also into his views about generally acceptable standards of honesty. But they do not consider that this is what Lord Hutton meant. The reference to “what he knows would offend normally accepted standards of honest conduct” meant only that his knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. It did not require that he should have had reflections about what those normally acceptable standards were.

16.

Similarly in the speech of Lord Hoffmann, the statement (in para 20) that a dishonest state of mind meant “consciousness that one is transgressing ordinary standards of honest behaviour” was in their Lordships' view intended to require consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour. It did not also to require him to have thought about what those standards were.

17.

On the facts of Twinsectra, neither the judge who acquitted Mr Leach of dishonesty nor the House undertook any inquiry into the views of the defendant solicitor Mr Leach about ordinary standards of honest behaviour. He had received on behalf of his client a payment from another solicitor whom he knew had given an undertaking to pay it to Mr Leach's client only for a particular use. But the other solicitor had paid the money to Mr Leach without requiring any undertaking. The judge found that he was not dishonest because he honestly believed that the undertaking did not, so to speak, run with the money and that, as between him and his client, he held it for his client unconditionally. He was therefore bound to pay it upon his client's instructions without restriction on its use. The majority in the House of Lords considered that a solicitor who held this view of the law, even though he knew all the facts, was not by normal standards dishonest.”

The Privy Council in Barlow Clowes did not find that the decision of the House of Lord in Twinsectra was, on its facts, wrong. What determined the outcome in that case was, in the view of the majority, as described by Lord Hoffmann in Barlow Clowes, at paragraph 17, the honest belief of the defendant solicitor in a certain view of the law. As Lord Hoffmann put it at paragraph 20: “If he [the defendant] honestly believed, as the judge found, that the money was at Mr Yardley’s disposal, he was not dishonest.” The case turned, it appears to me, on the view taken of the honesty of the defendant’s conduct in the transaction. The majority all took the view that the trial judge’s conclusion that the defendant had not been dishonest should be upheld. Whether a defendant’s belief is honest or dishonest involves an assessment of his mental state.

Both Rix LJ (paragraph 16) and Arden LJ, when using the expression “predominantly objective” in paragraph 65, acknowledge the possibility of the presence of a subjective element. I fully and respectfully acknowledge the value of Barlow Clowes in its explanation of Twinsectra but the implications are in my view best considered in a case in which a real issue arises on its impact.

Two findings of fact are very important to the trial judge’s decision. First, the judge found:

“Mr Faronbi probably suspected, in a general way that Messrs Ibrahim and Saminu might be in the course of their business, from time to time assisting corrupt politicians to launder money.”

Secondly, he found, at paragraph 48:

“He [Mr Faronbi] did not have any knowledge or suspicion concerning these transactions which was such as to render his or his employers participation in them contrary to normally acceptable standards of honest conduct.”

The transactions were those identified by Rix LJ in paragraph 4 of his judgment.

In making those findings, the judge had the benefit of a thorough cross-examination of Mr Faronbi by Mr D'Cruz on behalf of the appellants. Mr Faronbi accepted that he knew that Trusty International Ltd had “a lot of politicians in their client base”. He accepted that a significant proportion of Nigerian politicians would be corrupt. He accepted that he needed to take particular care before opening an account when international currency transactions would be involved. He stated that those seeking to open the account were not politicians:

“Q. I am talking about your understanding of the business that Trusty International was involved in when you opened an account for them.

A.

Yes yes.

Q.

So this is in 2001, the end of 2001, and I am saying you realised then, before you opened the account and as a result of your meeting with Mr Saminu and Mr Ibrahim that their business involved helping politicians make payments in and out of the country which were corrupt.

A.

I did not think so.

Q.

You didn’t think so.

A.

At that time I didn’t think so. That’s not correct.

Q.

Well when they told you that many of their clients were politicians and when they told you that the politicians, many of them, sent money out of the country and brought it back, would you have said to yourself in 2001 “That’s the typical sort of thing that corrupt politicians do”? Would you have mentally said that to yourself?

A.

I did not. I did not.

…

Q.

… you simply turned a blind eye to it. You ignored it.

A.

At the point the business, the account was being opened, I did not see it as aiding monies, corrupt monies, to come in. Do you understand what I am saying sir? I did not see it so at that time. That’s it. If I could see it so at that time I wouldn’t do the business. I wouldn’t want to come into problems.

Q.

Do you see it any differently now?

A.

Yes, the fact of the case is (inaudible), I also now would not say it is coming from politicians. Do you see what I’m saying? It’s just the only part of the business, a little percentage of the business. I said majority of that weren’t our politicians. Do you understand what I’m saying?”

It is accepted on behalf the of the appellants that the judge’s findings were a legitimate reflection of Mr Faronbi’s evidence and in my view the judge was entitled to make those findings. I agree with Rix LJ that it would not be right to reverse the judge’s findings. Further, while there may be defects in parts of the judge’s reasoning, the findings on the central issue are such that a re-trial is not required. A re-trial was not ordered, in somewhat similar circumstances, in Twinsectra (Lord Hutton, at paragraph 50). I agree that the appeal based on dishonest assistance must be dismissed.

As to the issue on money had and received, I agree with Arden LJ that the appeal must be dismissed. In Niru Battery Manufacturing G Ltd v Milestone Trading, Clarke LJ quoted with approval, [2004] QB 985 at paragraph 164, a passage in the judgment of the trial judge Moore-Bick J, cited by Rix LJ at paragraph 48 of his judgment in this case. The limits of good faith may be exceeded by a “failure to act in a commercially acceptable way”, as well as by “sharp practice of a kind that falls short of dishonesty” and “dishonesty” itself. Rix LJ, rightly in my view, adopts the test of “commercially acceptable conduct” in paragraph 52 of his judgment.

The appeal has the same difficulty, in my judgment, on this head of claim as on the other. Having considered the evidence, including that about conditions in Nigeria and regulatory requirements there, the judge concluded that, with respect to these transactions, Mr Faronbi’s conduct was not “contrary to normally accepted standards of honest conduct.”

It cannot be said, as a matter of law, that a bank’s suspicion about some of those with whom a customer deals inevitably requires that all dealing with that customer be ended, if the legal test of commercially acceptable conduct is to be satisfied. It depends on the facts. An assessment of the particular circumstances is required and that was conducted by the judge on the evidence before him.

I do not consider that the judge’s finding can be reversed by diverting attention from the two transactions on the account to Mr Faronbi’s conduct in opening the account. The judge’s finding that involvement in the two transactions did not involve a failure to act in a commercially acceptable way inevitably involves a finding that the almost contemporaneous opening of the account which led to the transactions was commercially acceptable.

For those reasons, and reasons given by Arden LJ, I would dismiss the appeal on this ground.

The judgments in this case may be cited.