Yasin Al-Yasin v Starling Bank Limited

This is an application by Mr Yasin Al-Yasin, who I will refer to as “the Claimant”, seeking a mandatory injunction against Starling Bank Limited, who I will refer to as “the Defendant”, to prevent the closure of his two bank accounts with the Defendant.

The application was made on a without notice basis yesterday evening and has come before me today in the Urgent Applications Court on notice. Mr Al-Yasin has appeared in person by remote link with audio only. Mr Edward Levey KC has appeared, instructed on behalf of the Defendant and has been present in Court.

The Claimant alleges that the Defendant should not close his bank accounts, the closure being due to occur today. He alleges that the Defendant, is in breach of contract and in breach of the Equality Act 2010 and that the Defendant has failed to make reasonable adjustments for his disability. He further alleges that the Defendant provided inaccurate or misleading information to another bank, that is Halifax Bank, and that as a result of that information, Halifax Bank declined to open an alternative bank account for him. He contends that he has not been given sufficient time in which to make alternative banking arrangements.

The history of the case goes back to December last year when initially the Defendant gave the Claimant notice of its intention to close his two accounts in 28 days’ time, that is, by the end of January, and at the same time placed a restriction on the accounts. That restriction was lifted some time in the course of January. Nonetheless, initially the intention was for the accounts to be closed at the end of January.

As a result of exchanges between the Claimant and the Defendant, the Defendant granted a further period of two weeks before the accounts were due to be closed and those two weeks expires today.

One of the Claimant’s main concerns has been the suggestion that without a bank account he would not be able to access payments made to him by the DWP, which I assume are payments relating to his disability. He says, not surprisingly, that he is dependent upon those payments being received and are used by him for his daily living expenses.

He sent a letter before action on 17 January and on 31 January, the Defendant responded to that letter before action. There has been no claim form issued and no draft order has been provided. All that there has been is an application notice with attached a statement of case. In response, overnight and this morning, the Defendant has provided a witness statement from the Defendant’s solicitor, Teresa Stothard, which sets out in some detail the course of events between the parties and exhibits some important documents, including two letters from the Halifax and also exhibits the Defendant’s terms and conditions.

I have read not just that material, but I have read the further material which the Claimant has provided and in which he has set out, admirably cogently, the nature of his case. I also accept and understand that the Claimant feels very strongly that he has not been fairly treated by the Defendant and is very concerned about the closure of his bank account.

In order for this court to grant an interim injunction, it applies the American Cyanamid test, which is well known and which the Claimant himself refers to. The first issue under that test is whether there is a serious issue to be tried, which equates to whether or not there is a reasonable prospect of success on the claim.

Having heard the arguments, I have concluded that this application fails at that first hurdle. I am not satisfied that there is a serious issue to be tried. Dealing with the points in turn, the essential claim is a claim for breach of contract. The contract between the Claimant and the Defendant is subject to the Defendant’s current account terms and conditions. At the bottom of page 8 of those conditions there is a heading: “Restricting and closing your account”. That provides, amongst other things, as follows:

“We may close your account by providing you with two months’ written notice of closure.

We may restrict in whole or in part, suspend your use of or close any or all of your accounts immediately at any time and terminate our agreement with you in respect of any or all of your accounts without notifying you at all if any of the following things happen”.

There are then set out a number of bullet points which set out the circumstances entitling the Defendant to terminate the account or close it, without notification. The second of those bullet points reads as follows:

“We suspect you are using your account for criminal or fraudulent purposes…”

Up until this morning, the Defendant’s position was that they had closed the account but were not able to disclose the reasons why they had closed the account, but had suggested, I believe in correspondence, that it had been closed for regulatory reasons.

The right to terminate with notice, which is in the first of those provisions, does not apply in this case. Although it gives an unlimited right to close the account, there has to be two months’ written notice of closure and it is accepted that in this case there was initially just one month’s notice of closure and even with the extension, there has not been two months’ notice of closure. However, in the course of today, Mr Levey for the Defendant has informed the court that the Defendant had now received confirmation from the NCA, the National Crime Agency, indicating that the NCA had notified the bank of a Suspicious Activity Report made to the NCA concerning that account. That is a sufficient basis to satisfy the requirement that the Defendant suspects that the account holder is using the account for criminal or fraudulent purposes and on that basis, that entitles the Defendant to close the account and in fact to do so without notifying the customer.

The Claimant, has expressed concern that this has come very late in the day and has only been stated in court, but I am going to accept an undertaking from the Defendant that they will, within 48 hours, file and serve a witness statement verified by a statement of truth, confirming what has been said in court today. In my judgment that would provide and does provide a complete defence to a claim for breach of contract.

As regards the other matters, in relation to the claim under the Equality Act, first it appears that this court has no jurisdiction to entertain such a claim that is available under the Act under section 29, section 114 is the jurisdiction provision of the Act. Any claim that arises under the Equality Act is required to be brought in the County Court. However, more importantly, I see no basis for a claim that the Defendant has breached its duties under the Equality Act and has failed to make reasonable adjustments.

It is clear that the Defendant did give some extra time following the Claimant’s protestations about the effect of the closure of the account. I observe this, and it is important. The Claimant’s persistent refrain in argument is that he has not been given enough time to find another account and that is all he is asking for. However, as far as I can see, there is no evidence that he has been attempting to open another bank account since he sought to do so with the Halifax in early January. There is no evidence that in the last two or three weeks he has been making any attempt to open another bank account. So the claim under the Equality Act, in my judgment, has no prospect of success. As far as discrimination is concerned, in so far as that arises under the Equality Act, as Mr Levey points out, he has not been discriminated against on grounds of his disability; rather his bank account has been closed for the reasons given as a contractual termination and a contractual entitlement to terminate.

There are two further matters I need to address. One is an allegation that the reason that the Halifax either refused to open an account for the Claimant or opened one and then closed it immediately, was because of information that had been provided by the Defendant to the Halifax and that that information was misleading. I am not satisfied that there is any evidence to support those allegations. Even if there were, it does not seem to me to give rise to a cause of action.

It is clear from the witness statement of Ms Stothard that there has been no direct provision of information by the Defendant to the Halifax. Mr Levey explains with some cogency the reference in Halifax’s letter of 6 January in which the Halifax suggest to the Claimant that the Claimant should contact the Defendant for their reasons for closing the bank account. At that time his own bank account with the Defendant had a restriction placed on it and that that information would be apparent to the Halifax when going through the transfer of bank account process. So I am not satisfied that there is an issue to be tried in relation to that. In any event, there is absolutely no evidence that any communication was in any way misleading or false, to the extent that the allegation is based not just on communication between the Defendant and the Halifax, but on a misleading communication. I see no evidence to support that conclusion.

Finally, there is the vexed question of access to the DWP payment. The real concern that seemed to have precipitated this application was that the Claimant would not receive his monthly DWP payment which would be paid into the account with the Defendant. His belief was that if the account was closed, the payment would just not be made. The answer to that is twofold. One, regardless of what may or may not have been said over the telephone, and I have no evidence as to what was said over the telephone, in paragraph 41 of Ms Stothard’s witness statement, she states:

“The applicant suggests he is anticipating a further DWP payment today. Should such a payment be made today, the applicant is entitled to withdraw it and indeed to receive the balance on the PCA —” that is the account “— whether by way of cheque or into another account of his choosing”.

So there is a clear statement that the Defendant would allow that payment to be received and paid out.

Secondly, it has now been confirmed during the course of this hearing that in fact that payment was received into the bank account at the Defendant, presumably overnight or yesterday, and further, that it has been paid out in the early hours of this morning to the Claimant’s daughter. As I understand from what the Claimant has just said, he gave the instruction for that payment to be made. So the concern and risk in relation to the DWP payment appears to be illusory.

Finally in relation to that, my understanding is that when the account is closed, any balance which is due to the Claimant will be paid out to him, either to another bank account if he had one, or by way of a cheque. In those circumstances I dismiss this application for an interim injunction.