Can I reclaim money I have lost to fraudsters from my bank?

This article briefly considers the scope of Quincecare duty of care owed by banks, recently increased in scope by the Court of Appeal in Philipp v Barclays Bank UK PLC [2022] EWCA Civ 318.

What is Quincecare duty?

Banks have an obligation to protect their customers from fraud. Before the recent ruling of the Court of Appeal in Philipp v Barclays, the bank’s Quincecare duty (as defined in Barclays Bank v Quincecare [1992] 4 All ER 36) only covered specific cases in which the payment instructions from an agent of the customer was fraudulent. However, the Court of Appeal has now widened the application of this duty of care to include customers’ own instructions. This means that a bank must not execute its customer's instructions if there are reasonable grounds for believing that they are an attempt to misappropriate the customer's funds.

What is APP Fraud?

Authorised Push Payment (APP) fraud occurs where scammers defraud someone into transferring money to their account. For instance, the fraudster might claim to work for your bank and ask you to transfer money urgently to a ‘safe account’ as you have been a victim of fraud. Or they may impersonate your conveyancing solicitor and request payment of deposit for purchasing a house.

What happened in Philipp v Barclays Bank UK PLC?

In this case the victims, Mr and Mrs Philipp were deceived by fraudsters who claimed to be from the Financial Conduct Authority (FCA). They convinced the Philipps to transfer all their money to an account controlled by the fraudsters. As a result, Mrs Philipp instructed the bank to transfer the money held in her account to the fraudster’s accounts. Once Mrs Philipp realised that she had fallen prey to an APP fraud, she brought a claim against her bank, Barclays. She claimed that Barclays had failed to comply with its Quincecare duty of care and failed to protect her from the APP fraud.

In the first instance, the Court dismissed Mrs Philipp’s claims and ruled that no Quincecare duty arose as the victim directly authorised the payments rather than the payments being authorised by an agent acting on her behalf.

However, on appeal, the decision was reversed and the Court of Appeal held that the Quincecare duty of care was not limited only to instructions given by a customer's agent. Rather, the bank should consider whether "the circumstances are such that the bank is on inquiry that executing the order would result in the customer's funds being misappropriated".  This means that banks could be liable to customers who have been a victim of APP fraud - although, it should be noted that each individual case will be judged according to its own facts and circumstances to determine whether the bank’s Quincecare duty of care has been satisfied.

What does the judgment in Philipp mean for APP fraud victims?

The decision in Philipp makes it clear that a bank should not carry out its customer's instructions if there are reasonable grounds to believe that they are an attempt to defraud the customer. Hence, if you have been a victim of APP fraud, you may have a claim against your bank to recover your money. You should contact your bank immediately to explain what has happened. Some banks are also signed up to the voluntary Authorised Push Payment Scam Code which launched on 28 May 2019. Such banks are obligated to take a number of steps to protect their customers against APP scams and reimburse customers who are not to blame.

Brett Wilson LLP's specialist fraud solicitors assist individuals and businesses which have been the victims of high value frauds (typically where the loss is greater than £100,000).  If you require assistance with such a matter send us an email, complete our online enquiry form or call us on 020 3811 2793.