Linklaters (a firm) v HSBC Bank Plc & Anor

The central facts of this case are stark. They concern a cheque drawn by an English customer, on its English bank, payable to an English payee, crossed “a/c payee only”. In the event, an Italian national handed in the cheque to the Las Palmas branch of a Spanish bank, with instructions to credit the proceeds to a Puerto Rican company. After dealings with the cheque by both the Spanish bank and the English bank in various capacities, the proceeds were indeed credited to the Puerto Rican company and rapidly withdrawn. None of the money has been recovered. Prudently, it might be thought, the banks settled proceedings brought by the payee. This trial has been concerned with a dispute between the English and Spanish banks, as to responsibility between themselves for the debacle.

I turn to introduce the facts in a little more detail acknowledging that it will be necessary, later, to revisit some aspects of the history.

Zeneca Ltd. (“Zeneca”) was at all material times a customer of the First Defendant and Part 20 Claimant (“HSBC”, formerly Midland Bank plc) at its branch at 100 King Street Manchester.

On the 23^rd April, 1999, Zeneca drew a cheque (“the cheque”) for £989,112.66 on HSBC, payable to the Claimant (“Linklaters”), in settlement of legal fees. The cheque was validly signed in accordance with HSBC’s mandate from Zeneca. The cheque was crossed “A/C PAYEE ONLY”. The cheque was posted to Linklaters but was apparently stolen from Linklaters’ mailroom.

At some point thereafter, the cheque ended up in the hands of a Mr. Giammello, an Italian national, who, it subsequently transpires, has been described by the (British) police as a “well known criminal”.

On the 14^th May, 1999, Mr. Giammello handed the cheque to Mr. Ortigosa, the “foreign authorised officer” at Las Palmas, Canary Islands, No. 2 branch of the Second Defendant and Part 20 Defendant (“the branch” and “BPE” respectively). Mr. Ortigosa’s responsibilities included, in particular, the management of the branch’s foreign department. By this time, the cheque bore on its back a purported indorsement in blank from Linklaters; the indorsement was, in fact, forged. Mr. Giammello gave Mr. Ortigosa instructions for the proceeds to be collected into the account of United Financial Services Corporation (“UFSC”), a company incorporated in Puerto Rico, of which Mr. Giammello was President. On the same day, Mr. Giammello had, through Mr. Ortigosa, opened a US$ account in the name of UFSC at BPE.

Mr. Ortigosa asked Mr. Giammello to sign the back of the cheque, which he did. Later, BPE stamped the following wording on the back of the cheque:

“ PAY TO THE ORDER OF ANY BANK BANKER OR TRUST COMPANY PRIOR ENDORSEMENTS GUARANTEED”

Still on the same day, BPE sent the cheque by courier to HSBC’s branch at 100 King Street, Manchester, under cover of a letter dated 14^th May, 1999, entitled “remittance for collection and/or acceptance” (“the Remittance Letter”). By that Remittance Letter, which stated that the cheque was being collected for UFSC, BPE instructed HSBC, inter alia, to deliver documents against payment, advise BPE immediately in case of dishonour and, after payment, to remit the proceeds to BPE’s account with HSBC’s London office. The Remittance Letter was to be executed according to the Uniform Rules for the Collection of Commercial Paper, issued by the International Chamber of Commerce (“the URC”).

On the 18^th May, 1999, the cheque was reviewed twice by HSBC staff; the first time, by a Ms. Burke, the foreign desk clerk; the second time, because the cheque was for an amount greater than £50,000, by a Mr. Cooney, an authorised signatory. By letter dated 18^th May, 1999 to HSBC’s Currency Cheque Processing Department in London, Mr. Cooney authorised settlement of the cheque; the Remittance Letter was enclosed; the cheque itself was cancelled and retained by the King Street branch.

On the 21^st May, 1999, HSBC’s Currency Cheque Processing Department credited the proceeds of the cheque (less a fee of £11) to BPE’s account with HSBC, value 25^th May, advising BPE by SWIFT.

On the 25^th May, 1999, BPE credited the proceeds to a £ sterling account in the name of UFSC, opened that same day at Mr. Giammello’s request.

On the next day, UFSC withdrew in total approximately £588,000 from that sterling account. Nine days thereafter, on the 4^th June, 1999, UFSC withdrew a further £350,000. By now only some £48,000 remained; that sum was removed by a series of withdrawals, the last of which took place on the 3rd August, 1999. As already foreshadowed, none of the money has been recovered.

In the meantime, in July 1999, Mr. Giammello asked Mr. Ortigosa to collect for UFSC a cashier’s cheque for US$50,000,000, purportedly issued by Chase Bank of Texas, payable to the order of “Aetna Associates/M Ayubi”. After inquiring of Chase Bank of Texas, BPE was informed that the document was a forgery. BPE made a report to the (Spanish) police.

On the 9^th August, 1999, after the theft of the cheque had been discovered, HSBC advised BPE by SWIFT that Linklaters had reported that it had not received the proceeds.

In due course, these proceedings were commenced by Linklaters against both HSBC and BPE, claiming damages for conversion. Although conversion is a tort of strict liability, collecting and paying bankers enjoy statutory defences in relation to both the receipt of the proceeds of a cheque and the payment of a cheque, provided that they have acted “in good faith and without negligence”: see, s.(4)(1) and (2) of the Cheques Act 1957 and s.80 of the Bills of Exchange Act 1882, as amended by the Cheques Act 1992. In the event, however, HSBC and BPE settled with Linklaters; each bank made a payment. It was, I have been told, a term of the settlement that both the total amount paid in settlement and the banks’ respective contributions would remain confidential. For completeness here, nothing turns on the Claimant being Linklaters rather than Zeneca.

As already observed, this trial has been concerned with a dispute between HSBC and BPE, with regard to responsibility as between themselves for the cost of the settlement.

Before outlining the rival cases, something must be said of the banks’ respective roles, which were and ultimately remained common ground.

In a nutshell, HSBC’s case proceeded as follows. As BPE’s agent for collection, HSBC claims an indemnity against BPE in respect of its liability to Linklaters; alternatively, HSBC claims that it is entitled to recover the entire amount it has paid to Linklaters as damages for breach of warranty. In putting its claim this way, HSBC relies on the decision of Rix,J., as he then was, in Middle Temple v Lloyds Bank [1999] 1 All ER (Comm) 193. Mr. Blair QC, who appeared for HSBC, submitted that Middle Temple was indistinguishable and that I should follow it. The fact that HSBC was the paying bank as well as BPE’s agent for collection was neither here nor there; at most it was a distinction without a difference. Accordingly, HSBC was entitled to an indemnity or damages for breach of warranty as a matter of law, irrespective of whether either HSBC or BPE acted “without negligence” for the purpose of s.4 of the Cheques Act 1957 or s.80 of the Bills of Exchange Act 1882. If wrong in its primary case, HSBC claimed a contribution from BPE, pursuant to the Civil Liability (Contribution) Act (“the 1978 Act”), on the ground that BPE was also liable to Linklaters in conversion for the same loss; it was HSBC’s case on this footing, that BPE was solely, alternatively, overwhelmingly to blame; BPE’s role, through Mr. Ortigosa, was much more extensive and Mr. Ortigosa’s conduct had been “insupportable”. By contrast, at most, Mr. Cooney of HSBC had made an error of judgment in the limited time available to him. Accordingly, BPE must bear all or most of the responsibility for the loss and HSBC’s contribution, if any, should be minimal.

For BPE, Mr. Oditah (as he then was) submitted that Middle Temple had been wrongly decided or had been decided per incuriam; relevant lines of authority had not been drawn to the Court’s attention. In any event, Middle Temple was distinguishable; unlike the position with regard to the relevant bank in Middle Temple, in this case HSBC was not simply BPE’s agent for collection but was also the paying bank. HSBC’s role as agent for collection was lacking in content; instead, its relevant capacity had been as paying bank but, as such, it was entitled to neither an indemnity nor damages for breach of warranty. Accordingly, questions of indemnity or damages for breach of warranty should be put to one side; the correct inquiry concerned claims for contribution pursuant to the 1978 Act. Here, BPE sought a contribution from HSBC by way of a complete indemnity. HSBC’s negligence was the effective cause of Linklaters’ loss; HSBC had paid the cheque without making any inquiry of Zeneca, notwithstanding several “red flags”. Alternatively, HSBC must bear the “lion’s share” of the loss and any contribution from BPE should be minimal. BPE had complied with its own procedures and with Spanish banking law and practice; HSBC, however, had failed to act with due diligence and, not least, had failed to follow its own procedures.

In the light of the rival cases, two principal groups of issues accordingly arise:

THE INDEMNITY/WARRANTY ISSUES

(1) The decision in Middle Temple (supra): Rix,J. began his judgment by clarifying the issues before him, as follows (at pp. 195-6):

“ What is the position in the light of the Cheques Act 1992 of an English clearing bank which collects a stolen English cheque marked ‘a/c payee only’ as agent for a foreign collecting bank whose customer is not the payee of the cheque and takes off with the proceeds? Does the English clearing bank owe any liability to the true owner of the cheque? And what is the liability, if any, of the foreign collecting bank ? And if either or both of them are liable, what are their responsibilities inter se? Those are the issues in this case, which has been argued not only on its precise facts but also as a matter of broad principle to give guidance, in particular, to English clearing banks.”

In summary terms, the facts in Middle Temple were these. Middle Temple drew a cheque, marked “a/c payee only” in favour of its insurers. The cheque was stolen and presented at an Istanbul branch of Sekerbank, a Turkish bank, which asked Lloyds Bank (“Lloyds”) to collect the cheque on its behalf in England. Lloyds collected the cheque and credited the proceeds to Sekerbank. Before the fraud was discovered, the money was withdrawn from Sekerbank and dissipated. Middle Temple sued both Lloyds and Sekerbank for converting the cheque; the two banks sought to rely on the “no negligence” defence provided by s.4 of the Cheques Act 1957 (set out above). In the event of being found liable to Middle Temple, each bank claimed an indemnity or contribution from the other.

Rix,J. held that both Lloyds and Sekerbank were unable to bring themselves within s.4 of the Cheques Act; each was liable to Middle Temple. For present purposes, no more need be said of that aspect of Middle Temple. As regards the banks’ liabilities inter se, with which the present case is directly concerned, the learned Judge’s decision is helpfully summarised in the headnote (at p.194) as follows:

“ An agent for collection which had not breached any duty to its correspondent bank was entitled to the benefit of an implied indemnity, unless it had acted in bad faith, or in a way which it knew to be unlawful or was manifestly unlawful, or had acted outside its authority. In the instant case, although Lloyds had breached its duty to the plaintiff, it had carried out Sekerbank’s instructions and was not in any breach of its duty to the Turkish bank. In any event, by asking Lloyds to collect an English a/c payee cheque, Sekerbank had impliedly warranted that its customer was entitled to the proceeds. Accordingly, Lloyds was entitled to an indemnity from Sekerbank for the loss it had incurred in carrying out Sekerbank’s instructions …”

Accordingly, while both Lloyds and Sekerbank were liable to Middle Temple, Sekerbank was entitled to no contribution from Lloyds whereas Lloyds was entitled to a complete indemnity from Sekerbank.

Given the nature of Mr. Oditah’s submissions, it is necessary to study the analysis contained in this part of the judgment in Middle Temple in a little more detail. To begin with (at pp. 231-2), Rix,J. rejected a claim by Sekerbank to an indemnity from Lloyds, whether on the ground of its mandate or on the ground of Lloyds’ breach of duty to it. It is unnecessary to take time with the mandate point. As to the alleged breach of duty, Rix,J. drew a distinction between the liability of Lloyds to the true owner in conversion, having failed in its s.4 defence and the question of any breach of duty owed to Sekerbank. As between Lloyds and Sekerbank, Lloyds had collected the cheque as instructed; the “primary duty” of collecting the cheque for the true owner was upon Sekerbank; that duty could not be passed to Lloyds by asking it to be Sekerbank’s agent for collection. Further, on the evidence of banking practice before him, the learned Judge held that, as between Lloyds and Sekerbank, it was Sekerbank’s duty to ensure that it was collecting for the right customer and true owner.

Rix,J. next turned (at pp. 232-5) to the claim by Lloyds against Sekerbank for an indemnity. This claim was put in two ways: (1) as an agent requested to collect a cheque which did precisely what it was requested to do, Lloyds was entitled to an implied indemnity from Sekerbank against any liability incurred in the course of carrying out its instructions as long as its act was not manifestly tortious; (2) on the basis of an implied warranty that Sekerbank’s customer was entitled to have the proceeds of the cheque paid to him. As already noted, Rix,J. held that Lloyds was entitled to succeed on both these grounds.

The implied indemnity: With regard to the implied indemnity, Sekerbank had argued that there was no good reason why the whole loss should fall on it; given that an agent for collection could only be liable if it acted negligently (it would otherwise be protected by s.4 of the Cheques Act 1957), it would be seeking an indemnity against its own negligence, which was contrary to principle; reference was made, inter alia, to the then current edition of Bowstead and Reynolds on Agency.

Rix,J. rejected these submissions. First, the learned Judge referred to Sheffield Corporation v Barclay [1905] AC 392. In that case, a banker in good faith sent a forged transfer form to the corporation so that it could register the transfer and issue a stock certificate in his name. The true owner of the stock was indemnified by the corporation; the banker was held liable to indemnify the corporation. The Earl of Halsbury LC, cited with approval the “general principle of law”, extracted from Dugdale v Lovering (1875) LR 10 CP 196, at p.397, as follows:

“ ‘It is a general principle of law when an act is done by one person at the request of another, which act is not in itself manifestly tortious to the knowledge of the person doing it, and such act turns out to be injurious to the rights of a third party, the person doing it is entitled to an indemnity from him who requested that it should be done.’”

Lord Davey’s conclusion was expressed in the following terms (at p.405):

“ … as between these two innocent parties, the loss should be borne by the respondents who caused the appellants to act upon an instrument which turned out to be invalid.”

Next, Rix,J. considered Kai Yung v Hong Kong Banking Corpn. [1981] AC 787 (PC). That case, somewhat similar to Sheffield, involved the registration of forged share transfers; the bank was held entitled to an indemnity from the stockbrokers who had requested the transfer. It is noteworthy that Rix,J. went on to cite the following passage from the advice of the Board, delivered by Lord Scarman (at pp. 799-800):

“ Had this case arisen in England, it might have been necessary to consider whether in the light of the Civil Liability (Contribution) Act 1978 the rule in the Sheffield case, which establishes the implication of an indemnity from a request acted on by the party requested, should be reviewed. The failure of the bank (by its officials) to check the signatures on the transfer deeds against the specimen signatures held by them, could, in the absence of an implied indemnity, give rise to a claim for contribution so far as ‘just and equitable having regard to the extent of that person’s responsibility for the damage in question’: section 2(1) of the Act. But the point cannot arise under the Hong Kong Ordinance, and the Board expresses no opinion on it.”

Additionally, Rix,J. reviewed the decision of Saville,J. (as he then was) in Redmond v Allied Irish Banks plc [1987] 2 FTLR 264. In that case, the plaintiff paid into his account with the defendant, two cheques crossed “Not negotiable – account payee only”, payable to a third party; as a consequence of collecting those cheques, the defendant was obliged to compromise an action brought against it by the drawer for conversion of the cheques. Saville,J. expressly doubted the correctness of the concession made by the plaintiff that the defendant was entitled to be indemnified by him; such an assumption appeared to involve agreeing to indemnify the bank against the consequences of its own negligence in agreeing to collect and pay an account payee only cheque in to the account of another.

Rix,J.’s conclusion on the implied indemnity was expressed in the following terms (at pp. 234-5):

“ … there is an important distinction to be made between the case where the agent is in breach of some duty vis-à-vis the party which requests him to act, and the case where the agent is in breach of some duty to a third party. In the former case there is good reason to think that the implied indemnity can not be intended to cover the agent’s default vis-à-vis the requesting party. It would in any event create circuity of action. Where, however, the negligence is vis-à-vis a third party, as in the present case, I do not see why the implied indemnity should not operate, since ex hypothesi, the agent can only be liable in a case of negligence. On this basis, Saville J would have been right to question Mr. Redmond’s initial concession, because Mr. Redmond was alleging that the bank was in breach of a duty between it and him. If that allegation had been valid – Saville J went on to decide that it was not – then the implied indemnity would not… have covered the bank. Where, however, as I have held in the present case, the agent for collection is not in breach of any duty vis-à-vis its correspondent bank, I do not see why the implied indemnity cannot avail the agent, unless of course it has acted in bad faith or in a way which is to its knowledge or manifestly unlawful, or has acted outside its authority. In emphasising the ministerial nature of the acts of registration, the courts have… underlined the absence of any breach of duty by the registering party towards the requesting party.”

The implied warranty: In any event, Rix,J. held that Lloyds was entitled to an indemnity on the basis of the implied warranty in the terms set out above. In his review of the authorities, the learned Judge had noted support for this alternative approach, in particular from Lord Davey in Sheffield (supra), at pp. 402-3 and 404-5 and Lord Scarman in Kai Yung (supra), at pp. 798-9. It may be noted that Lord Davey expressed the point this way (at p.403):

“ I dissent from the proposition that a person who brings a transfer to the registering authority and requests him to register it makes no representation that it is a genuine document, and I am disposed to think (though it is not necessary to decide it in the present case) that he not only affirms it is genuine, but warrants that it is so.”

With, if I may respectfully say so, obvious practical commonsense, Rix,J. observed (at p.235):

“ Where a bank asks its English agent for collection to collect English cheques crossed ‘a/c payee’, I do not understand how, without some express disclaimer, it can say that it has not warranted that its customer is entitled to the proceeds. On what other basis is it sending them forward for collection?”

Contribution: Had Rix,J. held that Lloyds was not entitled to rely on an implied indemnity or warranty, then, pursuant to the 1978 Act, he would have apportioned the banks’ liability between themselves in the ratio of Sekerbank 75% and Lloyds 25%. Plainly, this conclusion was fact-specific and cannot be treated as furnishing general guidance.

(2) The correct approach to Middle Temple: As already foreshadowed, Mr. Oditah submitted that Middle Temple was wrongly decided, or had been decided per incuriam, or was in any event distinguishable. While not binding on me, Middle Temple is of course a persuasive authority. Insofar as Middle Temple is distinguishable, no special considerations arise. To the extent, however, that Middle Temple is not distinguishable and is said to be wrong, then particular care is needed here; much the same may be said with regard to the argument that Middle Temple was decided per incuriam, in any event a bold submission given the dramatis personae in that case. It is clear both from what I was told by Mr. Blair and from the opening remarks of the judgment in Middle Temple, that Middle Temple was argued as a “test case” with a view to providing guidance, in particular to English clearing banks. Moreover, Rix,J. heard evidence of banking practice. In such circumstances, conflicting decisions at first instance would be unfortunate in the extreme. With this in mind, whether or not I would necessarily have reached the same conclusions free of any prior authority, it seems to me that I should follow Middle Temple unless persuaded that it was wrongly decided; doubts as to its correctness (if any) are better resolved elsewhere. I turn to Mr. Oditah’s attack on Middle Temple.

(3) Was Middle Temple wrongly decided or decided per incuriam ? It is convenient to deal first with the argument as to the implied indemnity before coming to the implied warranty. For present purposes, I proceed on the following assumptions: (1) Nothing turns on the fact that HSBC was the paying bank, as well as BPE’s agent for collection; the significance, such as it is, of that point, will be considered when addressing the argument that Middle Temple is distinguishable. (2) Both HSBC and BPE were negligent vis-à-vis the true owner of the cheque, a matter to which I must return when dealing with the Contribution Issues. (3) HSBC was not negligent vis-à-vis BPE; an argument that it was will be dealt with when considering whether Middle Temple is distinguishable.

Implied indemnity: Mr. Oditah’s submissions here hinged on the proposition that HSBC was not entitled to an implied indemnity in respect of its own negligence. The distinction drawn by Rix,J., between the agent’s negligence vis-à-vis his principal and the agent’s breach of duty to a third party, was contrary to principle and unsupported by authority. Mr. Oditah relied on Bowstead and Reynolds on Agency (17^th ed.), at para. 7-062, where, under Article 65, it is stated:

“ (2) An agent is not entitled to reimbursement of expenses incurred by him, nor to indemnity against losses or liabilities –

(b)

in consequence of his own negligence, default … or breach of duty.”

The related comment in Bowstead and Reynolds says this (at para. 7-065):

“ Where agent at fault: Where the expenses and liabilities only arise because of the agent’s fault, it is obvious that there is no liability to indemnify.”

As to authorities, Mr. Oditah made reference to a number, in particular, Frixione v Taglia Ferro (1856) 10 Moo.PC 175; Duncan v Hill (1873) LR 8 Ex. 242; and Cory v Lambton (1916) 86 LJKB 401; those authorities were not referred to by name in the Middle Temple judgment.

I confess that, in the absence of the Middle Temple decision, I would have been considerably tempted by Lord Scarman’s observations in Kai Yung (supra) set out above; at least at first blush, assuming negligence on the part of both HSBC and BPE towards Linklaters in the present case, a solution involving each bank being ordered to contribute towards the settlement in a “just and equitable” amount under the 1978 Act, has much attraction. Moreover, such thoughts are reinforced by the comment on Middle Temple, contained in the current 12^th edition of Paget’s Law of Banking, at para. 23.15:

“ It is submitted that the effect of this decision, by which the entire loss was borne by the Turkish bank, is rather curious. Given that Lloyds ought to have made enquiries as to why a cheque payable to Middle Temple had been presented to a bank in Turkey, and given that such enquiries would have defeated a fraud, the fairer result would have been for the loss to be borne by Lloyds and the Turkish bank according to their respective degrees of fault.”

Notwithstanding these reflections, I am not persuaded that Middle Temple was wrong on the question of the implied indemnity. As already canvassed, conflicting first instance decisions are here to be avoided if at all possible; misgivings as to the result arrived at in Middle Temple are one thing; it is quite another to be persuaded that the decision in Middle Temple cannot be sustained and Mr. Oditah’s arguments fall well short of doing so. My reasons are these:

Implied warranty: Here, Mr. Oditah’s attack on Middle Temple proceeded as follows. First, he relied on the well-established principle that a person presenting an instrument for payment or acceptance gives no warranty as to its authenticity or genuineness or that of the documents attached to it: see, Chalmers & Guest on Bills of Exchange, 15^th ed., at para. 1136; The East India Company v Tritton (1824) 3 B&C 280; Leather v Simpson (1871) LR 11 Eq 398; Guaranty Trust Co. of New York v Hannay [1918] 2 KB 623; and Greenwood v Martins Bank Ltd. [1933] AC 51. None of these cases had been cited in Middle Temple. Secondly, there was no distinction between a warranty of genuineness, on the one hand and a warranty as to entitlement to the proceeds of the cheque, on the other; alternatively, this was a distinction without a difference. If, accordingly, a warranty of genuineness could not be asserted, then Rix,J. was wrong in concluding that there was a warranty by Sekerbank that its customer was entitled to the proceeds of the cheque. In this regard too, Mr. Oditah underlined that Lord Davey in Sheffield (supra), at p.403 and Lord Scarman in Kai Yung (supra), at p.799, when discussing the question of a warranty, had both spoken of the genuineness of the documents in question. Thirdly, the implication of a warranty was not automatic; in the present context there was no or no satisfactory factual basis for its implication.

Mr. Blair’s response was succinct. Those involved in the Middle Temple case had not missed the point. HSBC did not quibble with the line of authorities relied on by Mr. Oditah; the cheque here was in any event genuine. The warranty which Rix,J. held to exist and on which HSBC relied here was a different warranty, namely, that BPE’s customer was entitled to the proceeds of the cheque. Further, as it was put in HSBC’s written closing submissions:

“ … the Hannay case is not dealing with the situation as between collecting bank and its agent for collection. In such a case there is an agency relationship between the two banks, in contrast to a holder in due course presenting a bill on its own account to the drawee of the bill (the Hannay situation).”

Here too, were I deciding the present case de novo (as it were), I might well have hesitated before concluding that there was an implied warranty as to entitlement to proceeds. In the present context, I might have questioned the adequacy of the factual basis for the implication weighed against the attraction of fashioning a solution having the effect of apportioning liability between the two banks. Moreover, I might have ventured to doubt the substance of the distinction between a warranty of genuineness on the one hand and a warranty of entitlement to proceeds on the other.

All that said, I am again not persuaded that the decision in Middle Temple was wrong. I regard it as inconceivable that those concerned in Middle Temple did not have the Hannay (supra) line of authorities in mind; I therefore reject the notion that the decision in Middle Temple was arrived at per incuriam. Once this stage is reached, it can readily be said that the position is different as between the collecting bank and its agent for collection on the one hand and that relating to the holder presenting a bill for payment or acceptance on the other. Furthermore, once the position between the principal (collecting bank) and its agent for collection falls to be considered, the commonsense approach favoured by Rix,J. is persuasive indeed. To the question posed by Rix,J. at p.235 of his judgment (set out above), what answer could properly have been given other than the one which the learned Judge gave?

Interim conclusion: In the circumstances, I am accordingly minded to follow Middle Temple on both the implied indemnity and implied warranty issues. Notwithstanding the countervailing attractions of a solution based on a just and equitable apportionment under the 1978 Act, it is one which is inherently uncertain and carries with it a much increased risk of litigation; that is an expensive price to pay. By contrast, a settled rule of risk allocation between collecting bank and its agent for collection, supported by evidence of banking practice as to the proper location of the duty or primary duty in question, enjoys considerable practical advantages. As a decision to follow Middle Temple on either the implied indemnity or the implied warranty issue is sufficient for HSBC, it follows that HSBC must succeed in its claim to a complete indemnity from BPE, unless Middle Temple can be distinguished. To that topic, I turn next.

(4) Is Middle Temple distinguishable ? Implied indemnity: Mr. Oditah submitted that even if Rix,J. was right to find an implied indemnity in Middle Temple, that decision was distinguishable here (1) because HSBC was the paying bank which Lloyds had not been in Middle Temple; and (2) HSBC was in any event in breach of its duty towards BPE. I shall consider these arguments in turn.

HSBC as paying bank: Although from time to time Mr. Oditah appeared reluctant to accept it, he ultimately (and rightly) did not seek to go behind the common ground that in this case, HSBC was both BPE’s agent for collection and the paying bank. In its final form, Mr. Oditah’s argument was that HSBC’s role as agent for collection was lacking in content; its relevant capacity was that of paying bank. It was as paying bank that HSBC had incurred liability to Linklaters and been sued by Linklaters. Moreover, HSBC had characterised its own role as that of the paying bank before these proceedings were commenced; for example, an internal memorandum of a meeting held on the 3^rd November, 1999, attended by HSBC, Linklaters, Zeneca (and its legal representatives), records that:

“Middle Temple v Lloyds case was discussed however it was highlighted that HSBC was not the collecting bank but the paying bank.”

In its capacity as paying bank, HSBC was simply discharging its contractual obligation to Zeneca, its customer; it was not performing any agency it had with BPE. There could be no question of the Sheffield (supra) principle applying to a paying bank; there was no request let alone any request capable of imposing any liability on BPE: see, Hannay (supra), at pp. 631-2 and 652.

For his part, Mr. Blair submitted that the two capacities in which HSBC had acted could not be artificially divided in the manner suggested by Mr. Oditah. In any event, HSBC’s role as agent for collection was one of substantive importance; it could not, for example, be assumed that if some other bank had been the agent for collection that the cheque would have reached HSBC (as paying bank) in the same way; the cheque may well have come to HSBC via the clearing system. In such circumstances, the paying bank would not have been concerned with the destination of the funds or any endorsements on the cheque. Further and in any event, it was not the payment of the cheque as such but the crediting of the proceeds to the account of a party not entitled to the proceeds that resulted in HSBC’s liability in conversion. Accordingly, HSBC’s loss had arisen in the course of, or by reason of carrying out BPE’s instructions; because HSBC, on BPE’s instructions, remitted the proceeds of the cheque to BPE, it incurred liability in conversion to Linklaters. On this analysis, the fact that HSBC was also the paying bank is neither here nor there. It was irrelevant how Linklaters characterised HSBC’s role; Linklaters may have had its own reasons for doing so. Finally and for what it is worth, HSBC had been paid a commission of £11; it would not have charged a commission as paying bank.

With respect to Mr. Oditah’s arguments, I have a clear preference for those of Mr. Blair on this point. To begin with, contextual considerations lend support to Mr. Blair’s submissions. It is very rare, as Mr. Blair submitted, for a paying bank to be sued for conversion of a cheque. Moreover, the cheque in question was a crossed cheque. As Bigham, J. put it, in Akrokerri Mines v Economic Bank [1904] 2 KB 465:

“ A crossing is a direction to the paying bank to pay the money generally to a bank or to a particular bank, as the case may be, and when this has been done the whole purpose of the crossing has been served. The paying bank has nothing to do with the application of the money after it has once been paid to the proper receiving banker. The words ‘account A.B.’ are a mere direction to the receiving bank as to how the money is to be dealt with after receipt.”

Against this background, it may be expected that attention will be focussed on HSBC’s role as BPE’s agent for collection rather than as paying bank. I do not, however, rest my decision on such matters, notwithstanding the reassurance they give with regard to HSBC’s case.

To my mind, the decisive point here in HSBC’s favour is that, quite simply, its role as BPE’s agent for collection did not lack content. To the contrary, the true analysis is that HSBC incurred liability in conversion when, on and in accordance with BPE’s instructions, it credited BPE’s account with the proceeds of the cheque. That it did as BPE’s agent for collection. The fact that HSBC was, in addition, the paying bank is neither here nor there; its liability to Linklaters did not arise before it credited BPE’s account with the proceeds of the cheque in its capacity as agent for collection: see, by analogy, Marfani v Midland Bank [1968] 1 WLR 956, at pp. 974-5, per Diplock,LJ, as he then was. It follows that Middle Temple cannot be distinguished on the ground that HSBC was the paying bank as well as BPE’s agent for collection.

For completeness:

HSBC in breach of duty owed to BPE ? I turn next to Mr. Oditah’s argument that Middle Temple could be distinguished on the ground that HSBC had been negligent towards BPE, its principal. Two allegations were advanced in this connection. First, that HSBC had failed to read its instructions before acting upon them. Secondly, that HSBC had failed to advise BPE of the meaning and significance of the “a/c payee only” crossing. In my judgment, neither of these points assists BPE; this suggested basis for distinguishing the present case from Middle Temple accordingly fails. My reasons follow.

HSBC’s instructions were contained in the Remittance Letter. The submission that these were not read by HSBC is plainly contradicted by the evidence. According to Mr. Cooney and not or not seriously challenged, Ms. Burke (the foreign desk clerk, referred to earlier) prepared the 18^th May, 1999 letter (also noted above) authorising settlement of the cheque. The details in that letter can only have come from the Remittance Letter. It follows that Ms. Burke must have read the Remittance Letter. Likewise, as the evidence from Mr. Rose of HSBC’s Cheque Processing Department made clear, staff in that Department must have read the Remittance Letter to obtain from it information found in the computer entries relating to the processing of the cheque. No more need be said of this submission.

I come next to HSBC’s alleged failure to advise BPE of the meaning and significance of an “a/c payee only” crossing. For the reasons given by Rix,J. in Middle Temple (at pp.231-2), drawing on the judgment of Saville,J. in Redmond (supra), at least absent an express request to do so, HSBC owed no such advisory duty to BPE:

“ … in Redmond… Saville J held that a customer of a domestic bank who had asked his bank to collect a/c payee cheques for him, which he held in good faith but of which he was not the true owner, was not entitled to complain that the bank was in breach of a duty to warn or advise him against the risks of what he was doing. Saville J (at 266) said:

‘I agree with Mr. Hapgood, on behalf of the bank, who submitted that a duty to take reasonable care in interpreting, ascertaining and acting in accordance with the instructions of a customer is something wholly different from the duty suggested by Mr. Wallace in the present case, which is to warn against, or advise on, the risks inherent in carrying through that which the customer wants to do. In my view the banker/customer relationship creates no such duty.’

That was not dealing with the banker/customer relationship between domestic bank and foreign correspondent bank, but I do not see why that should make any difference. If anything a customer bank should be in a better position to look after itself. Moreover, on the evidence of banking practice before me, as between Sekerbank and Lloyds, it was Sekerbank’s duty to ensure that it was collecting for the right customer and true owner.”

Instead, applying the analysis of Rix, J. (at pp. 225-226), which again I respectfully adopt, any failure by HSBC to advise BPE, as one of its correspondents, of the effect of the 1992 Cheques Act with regard to “a/c payee only” crossings would result in HSBC being unable to show that it had acted “without negligence” for the purpose of s.4 of the Cheques Act 1957; but any such failure disclosed a breach of duty owed to the true owner of the cheque, not to BPE, because (at p.225):

“ … an English clearing bank has no duty to its foreign correspondent banks to advise them of every aspect of English banking law…”

Accordingly, irrespective of whether in fact HSBC failed to advise BPE of the effect of the 1992 Cheques Act (as to which see below), BPE cannot assert any breach of duty on the part of HSBC in this regard.

Implied warranty: Here, Mr. Oditah submitted that Middle Temple was distinguishable by reason of: (1) HSBC being the paying bank; (2) an express disclaimer.

HSBC as paying bank: Mr. Blair submitted that with regard to the question of an implied warranty, the capacity in which HSBC incurred liability was irrelevant; there either was or was not an implied warranty; if there was, then the inquiry was confined to whether or not there had been a breach of it. With respect, I have reservations as to this argument, in that the capacity of HSBC would or might impact on whether a warranty should be implied. Be that as it may, nothing turns on those reservations. For the same reasons as I have already sought to express in connection with the implied indemnity, HSBC’s additional role as paying bank is not a ground for distinguishing the present case from Middle Temple.

Express disclaimer: Mr. Oditah noted that Rix,J., in Middle Temple had held that there was an implied warranty, absent “some express disclaimer”. In the present case, unlike Middle Temple, he submitted that there was such a disclaimer. The Remittance Letter provided that the instructions therein were to be executed in accordance with the URC. Art. 13 of the URC provides as follows:

“ Banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents …”

Accordingly, so the submission proceeded,even if Rix,J. was right to conclude as he did on the question of implied warranty, the present case was different; there was an express disclaimer as to the genuineness or legal effect of the documents.

So far as it goes, I accept that no question concerning Art. 13 of the URC arose in Middle Temple. That said, Mr. Oditah’s argument in support of Art. 13 serving as an express disclaimer is essentially the same as his argument that BPE gave no implied warranty. Both arguments turn on there being no distinction between a warranty of genuineness and a warranty of entitlement to the proceeds of a cheque. Having already concluded that I would follow Middle Temple on the implied warranty question, it follows that I cannot accept Mr. Oditah’s argument here. Art. 13 of the URC is a disclaimer as to the genuineness of the documents; it does not impact on the different warranty, namely that BPE’s customer was entitled to the proceeds of the cheque.

Conclusion: Pulling the threads together, the present case is not properly distinguishable from Middle Temple, either as to implied indemnity or as to implied warranty. Necessarily therefore, in the light of my earlier conclusion that Middle Temple was to be followed unless distinguishable, HSBC is entitled to succeed in its claim for a complete indemnity from BPE in respect of its liability to Linklaters.

(5) Miscellaneous matters: For completeness, I must record here two further matters canvassed in connection with the Indemnity/Warranty Issues.

The BPE stamp on the cheque: It will be recollected that BPE stamped on the back of the cheque wording, in Spanish and English, which included “PRIOR ENDORSEMENTS GUARANTEED”. Mr. Blair submitted that the words meant what they said and constituted an express indemnity; BPE assumed responsibility for the instrument to other banks in the payment chain. Mr. Oditah contended that the wording meant no more than that BPE had examined the (purported) endorsements on the cheque and there was no apparent break in the chain of endorsements; the wording further confirmed that BPE identified the person presenting the cheque. Beyond that the wording did not go; it did not constitute an indemnity. In the light of the decision to which I have already come, this matter is academic; I shall therefore take it rather more shortly than would otherwise have been the case but, even so, it does not permit truly summary treatment.

On this issue, I prefer Mr. Oditah’s arguments to those of Mr. Blair. My reasons are these:

Accordingly, had it mattered, HSBC would have failed in its case of an express indemnity derived from the wording of the stamp.

Art. 11(c) of the URC: Art. 11(c) of the URC provides as follows:

“ DISCLAIMER FOR ACTS OF AN INSTRUCTED PARTY

(c)

A party instructing another party to perform services shall be bound by and liable to indemnify the instructed party against all obligations and responsibilities imposed by foreign laws and usages.”

Taken literally, Art. 11(c) appears to furnish HSBC with an express indemnity and Mr. Blair contended that it did just that. A conclusion to such effect, he said, would be consistent with the conclusion as to an implied indemnity arrived at by Rix,J. in Middle Temple. For his part, Mr. Oditah resisted this conclusion, on the by now familiar objections based on HSBC’s capacity as paying bank and HSBC’s alleged negligence. Furthermore, Mr. Oditah submitted that art. 11(c) contemplated fees, taxes and similar imposts which might be imposed on a collecting bank by foreign law.

My provisional inclination was to favour Mr. Blair’s argument here. I have already rejected Mr. Oditah’s capacity point. Assuming that Middle Temple is good law, the reasoning there as to negligence ought to assist Mr. Blair here. That said, the point is potentially one of some wider significance, going to the construction and scope of the URC and it is not necessary for me to decide it. In the circumstances, I prefer to express no concluded view on this point. Had it been necessary to do so, I would have wished to reflect further on the impact of negligence on the construction of a set of international rules and on the question of whether the true scope of Art. 11(c) was limited to such matters as foreign taxes and the like. To my mind, questions of that nature are best left until a case arises where it is necessary to decide them.

In the light of my decision on the Indemnity/Warranty Issues, this group of Issues does not strictly arise. Nonetheless, I have heard evidence on these Issues, they have been fully argued and it is appropriate for me to decide them.

The Contribution Issues are conveniently dealt with under the following headings:

(1) Fault of HSBC: Reference has already been made to Mr. Cooney, an authorised signatory at the HSBC King Street branch, who authorised settlement of the cheque. The BPE case was that Mr. Cooney was negligent in not making further inquiries as to the cheque; such negligence was both causative of the loss and seriously culpable.

Mr. Cooney gave oral evidence at the trial; he had some 30 years experience at HSBC and said that he carried out his work meticulously. His diligence in general, which I have no reason to doubt, does not, however, resolve the issue which I need to determine here.

Mr. Cooney obviously could not remember the individual cheque. He was, however, very clear as to the procedures which were usually followed and his answers must be interpreted as reconstruction based on his usual or even invariable practice. Turning to such practice and procedures, Mr. Cooney explained that the King Street branch had some 40 authorised signatories of which he was one. About 10 cheques would have been referred to him on any one day. Ms. Burke (the foreign desk clerk) would have carried out routine or commonsense checks, such as whether the words and figures tallied. Because the amount of the cheque exceeded £50,000, Ms. Burke would have brought the cheque to Mr. Cooney, so that a “second pair of eyes” could “look at the transaction as a whole”. As Mr. Cooney explained it, this look at the “larger transaction” involved a focus on the front of the cheque, in the light of his knowledge of the customer, before making a judgment, based on his experience, as to whether further inquiries should be made. In the present case, Mr. Cooney had not thought it necessary to make further inquiries; his reasons were these:

“ I took an overview, I looked at who it was payable to, I looked at the amount, and I particularly used my knowledge of Zeneca, who were well-known to me, who I knew to make large transactions frequently in various currencies internationally by various means, and I could see the cheque was payable to a business beneficiary, although I did not know who that beneficiary was or where they were based.”

Mr. Cooney was not required to look at the back of the cheque nor at the Remittance Letter – although, as already summarised, it is plain that the Remittance Letter was read by other members of the HSBC staff (including Ms. Burke) and the Remittance Letter was with the documents supplied to him. As to HSBC’s procedure manuals, Mr. Cooney understood that their function was to provide guidance; authorised signatories would be “ill-advised” to ignore such guidance; if the manuals state that certain features were suspicious, an authorised signatory should consider them.

Mr. Oditah, cross-examining, took Mr. Cooney to the following section contained in HSBC’s procedure manuals:

“ Suspicious Circumstances

The following may be classed as suspicious. Pay particular attention to these when cancelling cheques:

•

….

•

Special presentations

•

Cheques collected abroad

•

High value cheques dated some while ago – such cheques are normally presented for payment without delay.”

As to these circumstances, Mr. Cooney said that the manuals do “not say that they are suspicous”; the manuals only say that they “may be classed as being suspicious”; he agreed, however, that particular attention should be paid to these circumstances. Mr. Cooney was minded to disagree that the reference to “special presentations” applied to the presentation of the cheque here. Nor, given that the cheque was collected abroad, was the delay such as to arouse suspicion. He was adamant that he had complied with the HSBC procedure manuals. Had Mr. Cooney’s thought that further inquiries were needed, he would have telephoned Zeneca.

Linklaters, HSBC and BPE had all instructed experts on English banking practice, messrs. Hedley, Trower and Harrison, respectively. The measure of agreement between them was such that the parties sensibly dispensed with calling them; their written reports and, most significantly, their Joint Memorandum (“the Joint Memorandum”) were before the Court. It is appropriate to quote from the Joint Memorandum at some length:

“ Points of agreement.

There is a high degree of agreement amongst the experts in regard to the position and the actions of HSBC as paying banker.

In particular we agree that:

1.

the instructions set out by HSBC for the cancellation of cheques… are a good example of general banking practice for the payment of cheques in 1999 …

2.

the Zeneca cheque came under three categories that HSBC (and general banking practice) regards as suspicious:

a.

it was a special presentation;

b.

it was collected abroad;

c.

it was a high value cheque that had not been presented without delay, which point we all regarded as particularly suspicious and worthy of investigation, even without points a. and b. above

3.

although Mr. Harrision [BPE’s expert], in particular, thinks that an experienced clerk might have taken a more pro-active role, we agree that HSBC should not be criticised for the role of Ms. Burke in the payment of the cheque, up to her referral of it to Mr. Cooney.

4.

Mr. Hedley [Linklaters’ expert] and Mr. Harrison believe that the suspicious circumstances of presentation gave rise to a need to examine both the cheque and the accompanying letter thoroughly ….

5.

given the high profile of fraud prevention in banking practice in 1999, as now, HSBC’s employees should have been aware of the risks both of fraud and of money laundering.

6.

if a decision were made to contact the drawer of the cheque, then that contact had to be meaningful and had to include advising the drawer that the cheque

a.

had not been paid to the named payee;

b.

had been collected abroad and

c.

had only just been presented;

7.

any contact should have been at a high level within Zeneca…

Points of disagreement.

There is only one fundamental point of disagreement.

Mr. Hedley and Mr. Harrison are strongly of the view that the points of agreement given above give rise to an objective necessity for HSBC to contact the drawer. Their view is that this necessity arises out of the intrinsic and obvious risk the bank would incur a substantial loss from fraud, if no contact were made. They believe that for HSBC to have acted prudently and in accordance with normal banking practice, contact had to be made with the drawer.

Mr. Trower [HSBC’s banking expert] is of the view that HSBC are entitled to a more subjective assessment of the actions of Mr. Cooney, viewed without hindsight and taking into consideration Mr. Cooney’s personal experience, his past performance and the practical conditions at the branch under which he was working ….”

In my judgment, in the light of the Joint Memorandum, there is an overwhelming case that HSBC, through Mr. Cooney, was negligent with regard to a failure to make inquiries of Zeneca in connection with the cheque. The test of negligence is objective; while understanding Mr. Trower’s sympathetic consideration of Mr. Cooney’s position, the facts of this matter cried out for further investigation, including a thorough examination of the Remittance Letter and, in consequence, inquiries being made of Zeneca. I agree with Mr. Hedley and Mr. Harrison on that point. The grounds for such investigation appeared from the HSBC procedure manuals themselves, as highlighted in para. 2 of the Joint Memorandum. These circumstances ought plainly to have called into question Mr. Cooney’s (proper) starting assumption, namely that BPE was collecting the cheque on behalf of the payee – an assumption which would not have survived an investigation leading to a thorough examination of the Remittance Letter. The experts, finally, do not appear to have shared Mr. Cooney’s view that this was not a special presentation; as to special presentations in excess of the branch counter limit (which this cheque was), the manuals provide that they were to be referred to an authorised signatory “who must ensure all necessary investigations are made to be satisfied the transaction is in order”. That is precisely what Mr. Cooney ought to have done.

These conclusions are sufficient for BPE’s charge of negligence against HSBC to succeed. Moreover, it would not be right to go further than the experts on English banking practice on this point. Nonetheless, I feel bound to record concern that the HSBC system was such that alarm bells failed to ring even though the Remittance Letter made it clear that this “a/c payee only” cheque (rendered non-transferable by the Cheques Act 1992) was being collected on behalf of a party other than the payee. For my part, if untutored by the experts on English banking practice, that fact, appearing as it did on the Remittance Letter, read as that was by two branches of HSBC, ought by itself to have triggered off further investigations. In fairness, that does not appear to be the route of reasoning followed by the Joint Memorandum. It is not for the Court to devise improvements to HSBC’s system but it is very much to be hoped that this lacuna will be addressed.

Be that as it may, the negligence established on HSBC’s part was undoubtedly a cause of Linklaters’ loss. HSBC should not have paid the cheque and credited BPE’s account, at least without making contact with Zeneca. Had HSBC made inquiries of Zeneca, in all probability the fraud would have been uncovered and Linklaters would not have suffered any loss.

For completeness:

(2) Fault of BPE: It was HSBC’s case that BPE and, in particular, Mr. Ortigosa (already mentioned above), had been negligent in respect of: (A) account opening; (B) collection of the cheque; (C) withdrawal of the proceeds.

(A) Account opening: I begin with Mr. Ortigosa’s evidence. In a nutshell, his evidence was that he and BPE had complied with the requisite formalities and procedures for opening UFSC’s account(s) with the bank; without the benefit of hindsight, he and the bank could not have been expected to do more. There was, in the event, comparatively little dispute as to what Mr. Ortigosa had done or not done; the real question, as will be seen, was whether he should have done more.

Mr. Ortigosa explained that he had been introduced to Mr. Giammello by Mr. Martin, then a well-respected customer of BPE; Mr. Ortigosa was, however, unaware that already in 1998, Mr. Martin’s own financial position may have been somewhat precarious, as evidenced by the existence of enforcement proceedings brought against him or his companies by various other banks. As to the time scale, although Mr. Ortigosa in his evidence said that Mr. Giammello had regularly visited the branch from about February 1999, I think he must be mistaken in that regard. In the report made by BPE to the Spanish police in July 1999 (referred to earlier), there is a reference to the introduction of Mr. Giammello by Mr. Martin having taken place some “two months ago”; that would place Mr. Ortigosa’s first meeting with Mr. Giammello in about May. I accept that evidence; it is contained in a report to the police and so is likely to have been given with care, it is relatively contemporaneous and it is inherently likely that Mr. Giammello would not have initiated his contacts with BPE until after the theft of the cheque (in or about late April or early May). I find that Mr. Ortigosa’s first meeting with Mr. Giammello probably took place at the end of April or the very beginning of May, 1999. It follows that I am unable to accept Mr. Ortigosa’s account of frequent meetings with Mr. Giammello, for which in any event there were no notes or records; in this regard, I formed the view that Mr. Ortigosa’s evidence mistakenly overstated the extent of his acquaintance with Mr. Giammello as at May, 1999.

At all events, when Mr. Giammello indicated an interest in opening an account for UFSC with BPE, he was required to produce his passport, UFSC’s incorporation documents and the resolutions authorising Mr. Giammello to act on its behalf. As to Mr. Giammello’s passport, it was an Italian passport, issued as recently as the 8^th April, 1999 by the Italian consul in Barcelona and stated that Mr. Giammello was resident in South Africa. The incorporation documents disclosed that UFSC was a Puerto Rican company. According to Mr. Ortigosa’s witness statement:

“ Mr. Giammello explained to me (in the presence of Mr. Martin) that UFSC had a substantial textile and real estate business in South Africa and that UFSC was divesting some of its South African assets in order to invest some of the proceeds in Las Palmas, particularly in luxury hotels. Mr. Martin confirmed these assertions. The explanation appeared plausible and I had no reason to doubt that it was true.”

In his oral evidence, not foreshadowed by his witness statement, Mr. Ortigosa added that Mr. Martin himself had hitherto himself expressed an interest in becoming involved in a large scale construction project; the branch manager had questioned Mr. Martin’s experience and Mr. Martin had indicated that he would seek a partner. As I understood Mr. Ortigosa’s evidence, Mr. Giammello was intended to be that partner.

The documents supplied by Mr. Giammello were authenticated and thereafter reviewed and validated by BPE’s in-house legal department. These processes would have taken something like a week or more. When the UFSC US$ account was then opened on the 14^th May, the form was signed by two representatives of BPE – not Mr. Ortigosa alone. The UFSC £ sterling account was opened to avoid UFSC having to pay charges for converting the cheque proceeds into US$. No other inquiries were made by Mr. Ortigosa. In cross-examination, he said this:

“ What am I supposed to have done? When a client is presented to me by another client, indicating that they would like to open an account and requesting information on the account, I give it to him and if the client agrees, we proceed with collecting the information on the account. It is checked and, once it is all in order, we proceed with the opening of the account.”

I have already referred to Mr. Mezquita and Prof. Curto, the experts on Spanish banking law and practice, called by HSBC and BPE respectively. Having regard to their opinions and the submissions of counsel, a considerable measure of common ground may be discerned in relation to Mr. Ortigosa’s evidence:

Against this background, two questions must be resolved:

Prudence: In approaching this inquiry, I bear very much in mind that a bank’s primary interest lies in doing business, rather than in deterring potential customers by interrogating them at the stage when they seek to open an account. Plainly, standards must not be set at an unrealistic level. Furthermore, hindsight is to be excluded. Inevitably, the opening of the UFSC account will have been one amongst a number of transactions dealt with in the branch at the time in question. Nevertheless, having made all these allowances, I am amply satisfied that BPE, through Mr. Ortigosa, was at fault in not having made any further inquiries of UFSC before opening its account. My reasons follow.

There was, here too, a degree of common ground between the experts as to the approach to be followed if not (insofar as this was a matter for the experts at all) as to the application of that approach to the facts of the present case. There was no or no real dispute that importance could properly be attached to personal recommendations, at least from an independent source as distinct from an interested party; likewise, that trust lay at the heart of banking relationships. Still further, the experts agreed that even absent specific procedures or guidelines, there are occasions when further inquiries should be made at the account opening stage.

In his report, Prof. Curto put the matter this way:

“ … given the lack of specific procedures or guidelines in this matter, it seems reasonable in terms of banking prudence and practice that in certain cases a number of protective provisions be followed to verify the purported legality, regularity and sincerity of the customer. Such exceptional issues are those applying both to fresh – even non spontaneous – accounts and to the amount involved in the documents delivered for collection when advisable.”

In cross-examination, Prof. Curto affirmed this passage but maintained the view that the present case was not “exceptional” and that there was no duty upon BPE to make further inquiries.

For his part, Mr. Mezquita accepted in cross-examination that banking practice was built around legal requirements; that said, the law set the minimum standards; the requirement to exercise “due diligence” applied, regardless of the specific terms of any law. As Mr. Mezquita expressed it in his report, the basic rule of sensible banking was “know your customer”. Due diligence in knowing your customer would, in certain cases, require additional inquiries to be made. Such a requirement was not unrealistic. In cross-examination, Mr. Mezquita explained that the need for further inquiries would not apply to 95% of accounts opened and continued as follows:

“ … but then there is the five percent that will fall into the category that you have to know more about them because they are not operating in their area, they are not operating in their country, they are operating in several countries. You do not have any idea what their business is and you have to ask a question. … What questions ? It will depend on the situation. I cannot make a list of questions because no one can do that, but at least you have to try to find answers.”

In Mr. Mezquita’s opinion, this was one of those 5% of cases and BPE had failed to exercise due diligence in accepting customers.

Was the present one of those exceptional or 5% of cases where further inquiries should have been made ? I think it plainly was.

I accordingly answer the present question by saying that BPE should have declined to open an account for UFSC without making further inquiries; its conduct in doing so was negligent. Had such further inquiries been made, I infer and conclude that no account would have been opened by BPE for UFSC. BPE’s negligence in this regard was accordingly a cause of the Linklaters’ loss. HSBC’s case in connection with account opening succeeds.

Art. 3(4): In the light of the conclusion to which I have come on “prudence”, this inquiry is academic. I propose therefore to deal with it summarily.

Art. 3(4) of the money laundering regulations provides as follows:

“ When there is circumstantial evidence or certainty that clients or persons whose identity needs to be established are not acting for their own account, the reporting parties will gather the necessary information to authenticate the identity of the representatives and authorised individuals, as well as the persons for whom they act…”

HSBC’s case was that Mr. Giammello was not acting for his own account; he was instead acting for the account of UFSC. Accordingly, BPE came under a duty, pursuant to Art. 3(4), to gather the necessary information as to the identity of the beneficial owners of UFSC. Its failure to do so, constituted negligence. Broadly speaking, Mr. Mezquita’s evidence supported the HSBC case.

BPE’s answer was that Art. 3(4) was inapplicable to companies; UFSC was applying to open an account; it was acting for itself. The identity of its shareholders was irrelevant. Art. 3(4) was essentially aimed at nominee transactions. Alternatively, Art. 3(4) was only engaged in respect of holding companies, shell companies or trusts established in a tax haven; UFSC was not such an entity. The BPE case was supported by Prof. Curto’s opinion.

On this point (even assuming that the money laundering regulations were generally applicable to the dealings between Mr. Giammello and BPE), I have not been persuaded by HSBC that Art. 3(4) applies to companies. First, as to the evidence, this is a matter of law or regulation, falling within Prof. Curto’s rather than Mr. Mezquita’s area of expertise. Secondly, BPE’s more limited construction still leaves a sensible meaning to Art. 3(4). Thirdly, if the construction favoured by HSBC was right, the ramifications of Art. 3(4) would not stop with entities such as UFSC and would be altogether more wide-ranging. Granting the good sense of money laundering regulations focussing on beneficial ownership rather than paper formalities, I would be reluctant to accede to HSBC’s proposed construction of a foreign law or regulation, without cogent foreign law evidence in support; as already remarked, such a foundation is lacking here. I therefore reject the HSBC submission that BPE was in breach of Art. 3(4).

(B) Collection of the cheque: The facts as to the collection of the cheque may be very shortly summarised. Mr. Giammello handed Mr. Ortigosa the cheque, saying that it represented the first tranche of proceeds extracted from the sale of UFSC’s South African textile and real property assets. Mr. Ortigosa’s statement evidence was that he had no reason to doubt this explanation.

The cheque was a sterling cheque, drawn on a bank in the United Kingdom, payable not to the vendor, UFSC, but indorsed in blank by an unknown payee. Mr. Ortigosa made no inquiries.

In cross-examination, Mr. Ortigosa said that receipt of high value cheques in the branch was not uncommon; the endorsement of cheques in Spain was “normal”; he continued as follows:

“ … At the branch we handle a lot of cheques. We have a lot of cheques paid in, issued by companies in Mauritania, Morocco, South Africa, Germany, Italy, Ivory Coast, etc…. many, many different countries, and a lot of cheques are paid in pounds for transactions that take place in Nigeria for the purchase and sale of fish. they pay in cheques in dollars for operations which take place in Italy. So I got a cheque in pounds, issued by an English company, which corresponds, I am told, to the sale of some assets in South Africa. I do not see anything strange in that.”

Mr. Ortigosa did not appreciate the significance (in English law) of the crossing “a/c payee only”. Mr. Giammello did not seem nervous and was not in a hurry to receive the proceeds. As Mr. Ortigosa later put it, “The cheque was not suspicious, nor the client.”

Before proceeding further, a number of matters may conveniently be mentioned and then put to one side:

Against this background, I come to the nub of the dispute as to the collection of the cheque: whether as a matter of reasonable and prudent Spanish banking practice, BPE should in the circumstances have declined to collect the cheque without making further inquiries?

A number of preliminary observations should be made, as to the approach to be adopted to this question. First, it is Spanish not English banking practice which is relevant. Secondly and generally, as already recorded, there was a large measure of agreement between the Spanish banking experts as to the need for further inquiries to be made, at least in exceptional cases. I did not understand such agreement to be inapplicable to the collection of cheques; nor was it so contended in BPE’s final written submissions. Thirdly, beyond such agreement and the common ground as to BPE’s compliance with the formalities of collection, I am not sure that expert evidence assists on the application of the principles to the individual facts of the case; were it otherwise, I would have accepted from Mr. Oditah that this is an area on which Prof. Curto can and Mr. Mezquita (strictly) cannot give expert evidence – Mr. Mezquita having disclaimed expertise in the field of collection.

As it seems to me, the question of whether BPE should have declined to collect the cheque without making further inquiries stands or falls with the decision on the prior topic of account opening. This conclusion is reinforced when it is recollected that the presentation of the cheque for collection and the opening of UFSC’s US$ account took place on the same day.

(C) Withdrawal of the proceeds: The essence of BPE’s case here was that hindsight must be excluded; as expressed by Mr. Ortigosa in his witness statement:

“ There was in fact no reason for BPE to suspect the honesty of the withdrawals. In particular, there were no cash withdrawals.”

BPE did not monitor the UFSC account; it was not suggested that any bank normally did; BPE did not therefore know of the withdrawals in advance. In any event, BPE did not know of the fraud until August, 1999; by then, of course, it was too late. Further, relying on Prof. Curto, BPE was not entitled to refuse the withdrawals without a court order. Still further, again relying on Prof. Curto and with regard to the money laundering regulations (if applicable), in the event that BPE’s suspicions were aroused, it could not abstain from effecting the withdrawals for fear of “tipping-off” the customer. BPE was, in short, neither negligent with regard to the withdrawals nor was any negligence on its part causative of Linklaters’ loss.

HSBC’s case in this regard was straightforward. As a matter of fact, BPE knew of the withdrawals before they took place; in any event, BPE knew of the 26^th May withdrawals before the 4^th June withdrawal took place. BPE ought to have been put on inquiry, by reason of the rapidity of the withdrawals, the fact that their destinations belied the account thus far given by Mr. Giammello of the intended purpose of the UFSC account and the nature of at least certain of the major withdrawals. While ordinarily, a bank was under a duty to execute its customer’s order as to the payment out of funds standing to the customer’s credit in his account, the duty did not extend to the case where there was good ground for thinking that the customer was not entitled to the moneys at all; sometimes banks have to make difficult decisions in this context; the present was not such a case – it was clearly on the wrong side of the line. As to the money laundering regulations (if applicable), BPE’s duty was to abstain from effecting the withdrawals until it had reported its concerns to the Bank of Spain. BPE made no inquiries and made no such report. Its conduct was indefensible. BPE was negligent in this regard and such negligence was a cause of Linklaters’ loss.

In my judgment, HSBC’s case as to the withdrawal of the proceeds of the cheque is clearly established. BPE was negligent. Its negligence was a cause of Linklaters’ loss. If BPE was negligent at the prior account opening and cheque collection stages, then it was plainly negligent here. But even if BPE was not negligent at those earlier stages, its conduct with regard to the withdrawal of the proceeds was such as to disclose an independent ground of negligence. I turn to my reasons.

The facts: I start with the facts as to the withdrawals. Comment has already been made as to their rapidity, reducing the balance in the UFSC (£ sterling) account to £399,000 within one day of receipt of the proceeds of the cheque and to £48,000 odd by the 4^th June, 1999, nine days thereafter. As to the nature of the principal withdrawals and the destination of the funds in question, they were as follows:

Plainly BPE knew or must be taken to have known of the 26^th May withdrawals before the largest single withdrawal on the 4^th June. BPE’s knowledge, however, goes further. Mr. Ortigosa’s evidence was that he spoke to both Mr. Martin and Mr. Giammello at the branch, on the 26^th May, when Mr. Giammello came in to sign the many orders involved in the withdrawals made on that day. It follows that BPE did not learn about the 26^th May withdrawals only after the event.

BPE’s position: I turn to a consideration of reasonable and prudent Spanish banking practice. Putting the money laundering regulations to one side for the moment, nothing in the Spanish banking experts’ evidence recorded so far, suggests that the Spanish and English frameworks differ. Even though Prof. Curto said that a bank could not refuse to execute a customer’s order with regard to the transfer of funds from an account in credit without a court order, I did not understand Prof. Curto to go so far as to say that such was the case even when the bank had good reason to suspect that the customer was not entitled to the funds at all (for instance, because they were stolen). If he did, I would not have accepted such evidence, at least without very clear evidence of practice or Spanish jurisprudence in its support. Accordingly, there is no unfairness towards BPE in analysing its position in terms of the framework provided by English law.

As a matter of English law, BPE had to balance: (1) its duty to exercise reasonable care in and about executing its customer’s order to transfer funds, such duty extending to the true owner of the cheque; (2) its duty, when a customer is in credit, to execute, promptly, valid and proper orders as to the transfer of funds. In this regard, albeit from a somewhat different factual context, valuable guidance is furnished by the observations of Steyn,J. (as he then was) in Barclays Bank v Quincecare [1992] 4 All ER 363, at p.376:

“ … The law should not impose too burdensome an obligation on bankers, which hampers the effective transacting of banking business unnecessarily. On the other hand, the law should guard against the facilitation of fraud, and exact a reasonable standard of care in order to combat fraud and to protect bank customers and innocent third parties. To hold that a bank is only liable when it has displayed a lack of probity would be much too restrictive an approach. On the other hand, to impose liability whenever speculation might suggest dishonesty would impose wholly impractical standards on bankers. In my judgment the sensible compromise, which strikes a fair balance between competing considerations, is simply to say that a banker must refrain from executing an order if and for as long as the banker is ‘put on inquiry’ in the sense that he has reasonable grounds (although not necessarily proof) for believing that the order is an attempt to misappropriate .. funds… And, the external standard of the likely perception of an ordinary prudent banker is the governing one.”

Later, Steyn,J. added (at p.377):

“ … it is right to say that trust, not distrust, is also the basis of a bank’s dealings with its customers. And full weight must be given to this consideration before one is entitled, in a given case, to conclude that the banker had reasonable grounds for thinking that the order was part of a fraudulent scheme…”

I direct myself accordingly. Making allowance for trust forming the basis of a bank’s dealings with its customers, should an ordinary prudent banker in the position of BPE have been put on inquiry here?

Should BPE have been put on inquiry ? No hindsight is needed to answer this question, “yes”. These withdrawals are and must have been at the time, remarkable. Even if Mr. Ortigosa had not appreciated that there was a problem before the 26^th May, on that day the warning bells should have rung and all the more so by the 4^th June.

Causation: As it seems to me, Mr. Blair was right to submit that this was not a case where BPE faced a difficult decision; on the facts of the withdrawals of the 26^th May alone, a fortiori when the 4^th June withdrawal is included in the picture, as Mr. Blair put it, “.. wherever the boundary lies, it was well and truly crossed.” As a matter of reasonable and prudent Spanish banking practice, BPE should not have permitted the withdrawals of 26^th May and/or 4^th June to proceed without further inquiry. As already appears, this was not a case where BPE only learnt of the withdrawals after they had taken place. On the 26^th May, Mr. Ortigosa could and should have declined to permit the withdrawals without further inquiry. In the, perhaps inherently unlikely, event that Mr. Giammello had lingered to dispute this decision, Mr. Ortigosa could have consulted his superiors and BPE could have sought an order from the Spanish Court. There is nothing to suggest that such an order (if need be) could not have been obtained or would have been ineffective. Pausing here, plainly a bank would not adopt such a stance lightly; I am, however, driven to this conclusion in that nothing less would meet the facts surrounding these withdrawals. Had the 26^th May withdrawals been stopped in their tracks, there would have been no Linklaters’ loss. BPE’s negligence in this regard was obviously causative of that loss.

As to the 4^th June withdrawal, suffice to say it beggars belief that this transaction was permitted to proceed. Even had BPE only acted to prevent the 4^th June withdrawal, the loss would have been reduced by some £400,000. Accordingly, if wrong in my conclusion that the 26^th May withdrawals should not have been permitted without further inquiry, then BPE’s negligence with regard to the 4^th June withdrawal was itself causative of loss in an amount of about £400,000.

The money laundering regulations: In the light of the parties’ submissions, it is necessary to deal briefly with the money laundering regulations. Before turning to the detail, it may be convenient to record my conclusions: (1) If these regulations were applicable, then BPE was in breach of a reporting duty thereunder. (2) As a matter of causation, any such breach of duty on the part of BPE does not add anything to the conclusion already reached, namely, that BPE should not have permitted the withdrawals to proceed without further inquiry. (3) Conversely, there is no basis for saying that to avoid the danger of “tipping off”, BPE should have permitted the withdrawals to proceed without more ado or would have been directed or advised by the Bank of Spain to do so. Accordingly, the money laundering regulations are, on any view, academic; if applicable, they neither add to nor undermine the conclusion as to BPE’s causative negligence in permitting the withdrawals to proceed; if inapplicable, no more need be said of them. In the circumstances, it suffices to proceed on the working assumption that these regulations were applicable without the need to express any final view as to their true scope.

Insofar as here material, the money laundering regulations provide as follows:

“ Article 1. Scope of Application.

1.

The present Regulation covers …the obligations, actions and procedures designed to anticipate and prevent the use of the financial system and other sectors of economic activity for the laundering of funds emanating from:

a)

Criminal activities relating to dangerous drugs …

b)

Criminal activities relating to armed gangs, organisations or terrorist groups.

c)

Criminal activities carried out by organised gangs or groups.

Article 5. Special examination of certain operations.

1.

Reporting parties will examine carefully … any operation… that by its nature appears to be linked to laundering of funds from activities listed in Article 1….

Article 7. Advising transactions to the Executive Unit.

1.

The reporting parties will work with the Executive Unit and to this end they will advise immediately about any incident or transaction where there are signs or certainty of involvement with laundering of funds obtained through the activities listed in Article 1….

Article 9. Abstention from carrying out transactions.

1.

The reporting parties will abstain from effecting any transaction listed in section 1 of Article 7 without first issuing the advice mentioned in said Article.”

(Emphasis added)

Plainly not all fraud involves money laundering, at least within Art. 1 of these regulations. However, given the suspicious nature of the 26^th May and 4^th June withdrawals and the context of money laundering regulations, I am prepared to proceed on the assumption that the wording which I have emphasised in Arts. 5(1) and 7(1) is of sufficient width to render these regulations applicable.

I regard the wording of Art. 9(1) as clear: a bank is not to proceed with a transaction falling within Art. 7(1), without first reporting it to the Bank of Spain. Prof. Curto’s evidence was, I fear, not easy to follow in this regard. While “tipping off” is obviously, in general, a risk to be taken seriously in the present context, the regulations in terms impose a prohibition on effecting the questionable transaction until the reporting duty has first been complied with. It is true that Art. 9(1) does not prohibit the bank from carrying out the transaction once the reporting duty has been complied with but this consideration in no way weakens the importance of the duty to report. If, which I doubt, Prof. Curto’s evidence suggested otherwise, then, very respectfully, I would feel unable to accept such evidence. At all events, BPE made no report and was accordingly in breach of its duty under Art. 9(1), provided only that the money laundering regulations were applicable.

I turn next to the argument that any failure by BPE to comply with its reporting duty was not causative. In cross-examination, Prof. Curto suggested that there was no point in reporting the transaction to the Bank of Spain:

“ … because it is a totally inefficient service.”

In his final written submissions, Mr. Oditah alluded to the separate if possibly not unrelated fact that the Spanish police had not asked BPE to block UFSC’s accounts, even after the report concerning the forged US$50 million cheque. It would be a strong thing to conclude that the Bank of Spain was inefficient on the basis of a single answer in cross-examination and I decline to do so. Nor am I prepared to infer from inactivity on the part of the Spanish police in August, the fact that a report in late May would have been pointless; by August, the moneys (or almost all of them) were no longer in UFSC’s account. That said, I am not persuaded that I have any or sufficient material from which to infer that, had a report been made to the Bank of Spain in this case, it would have positively intervened to advise or direct BPE not to permit the withdrawals. The upshot, however, of a report by BPE and inaction on the part of the Bank of Spain, would be that BPE was left to act in accordance with reasonable and prudent banking practice, a matter already dealt with.

Always on the assumption that the money laundering regulations were applicable, there remains the question of whether concern as to the danger of “tipping off” should have led BPE to permit the withdrawals to proceed or would have resulted in a direction or advice from the Bank of Spain to BPE to such effect. Suffice to say that in the present case, there is no foundation for any such conclusion. It follows that a consideration of the money laundering regulations does not undermine the conclusion to which I have come as to the causative effect of BPE’s negligence in failing to make further inquiry as to the proposed withdrawals.

(3) The legal framework: On the hypothesis that the Contribution Issues arise, namely that HSBC fails in its claim for an indemnity or damages for breach of warranty, then it was common ground that the parties’ contribution claims inter se, fall to be dealt with in accordance with the 1978 Act. That Act provides, insofar as material, as follows:

“ 1 Entitlement to contribution

(1)

Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage …

(4)

A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage … shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.

2 Assessment of contribution

(1)

… in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

(2)

… the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

Although neither HSBC nor BPE have been found liable to Linklaters, they are entitled to claim contribution pursuant to s.1(4) of the 1978 Act. The contribution to be assessed must be “just and equitable having regard to the extent of that person’s responsibility for the damage”; “responsibility” includes both blameworthiness and causative potency; the assessment is qualitative rather than quantitative (in terms of the number of faults). The object of such contribution proceedings is to ensure that each party responsible for the damage makes an appropriate contribution to the cost of compensating the party who has suffered damage, regardless of where the cost has fallen in the first instance. See, generally, Lord Nicholls in Dubai Aluminium v Salaam [2002] UKHL 48 [2002] 3 WLR 1913, at [51] – [52]. I turn to apportionment.

(4) Apportionment: In the light of my earlier conclusions that both HSBC and BPE were guilty of causative negligence, there can be no question of either bank being entitled to a complete indemnity under s.2(2) of the 1978 Act. “But for” the negligence of each bank, Linklaters would not have sustained loss.

With regard to apportionment, each case must of course be decided on its own facts; no useful purpose would accordingly be served by a trawl through Middle Temple in a search for detailed points of similarity or contrast, in order to arrive at the apportionment in this case.

To my mind, BPE was seriously at fault in failing to know its customer. It was, according to the evidence of banking practice recorded in Middle Temple, BPE’s duty as collecting bank to ensure that it was collecting for the right customer and true owner. BPE’s conduct in this regard was notable indeed for the unfavourable contrast between Mr. Ortigosa’s compliance with form and neglect of substance. Further, BPE’s fault was not confined to a single instance; as I have held, it was at fault in opening the account, in collecting the cheque and, additionally or independently, in permitting the withdrawals to proceed. To my mind, BPE must bear the majority of the responsibility for Linklaters’ loss.

Turning to HSBC, it is true that Mr. Cooney’s involvement with the cheque was brief and his and HSBC’s fault lies in a one-off failure to investigate further. That said, the fault was significant. It involved an elementary failure to follow HSBC’s own procedures, in connection with an English cheque. Had those procedures been followed, a simple inquiry of Zeneca would in all probability have averted the loss.

In all the circumstances and having regard to both blameworthiness and causative potency, had HSBC not succeeded on the Indemnity/Warranty Issues, I would have assessed contributions from the two banks as between themselves on the basis that BPE’s responsibility for the damage in question was 2/3 and HSBC’s was 1/3. In the event, however, by reason of my decision on the Indemnity/Warranty Issues, HSBC is entitled to a complete indemnity from BPE.

I shall be grateful for assistance from counsel as to the form of the order and as to all questions of costs.