In Arena Television Limited (in liquidation) v Bank of Scotland plc & Lloyds Bank plc [2025] EWHC 3036 (Comm), Butcher J dismissed strike out applications by two banks in respect of so-called Quincecare claims said to be in excess of £1.3bn, on the grounds that the directors of Arena had actual authority to authorise payments out of the company’s bank account pursuant to a fraud on asset based lenders.
On the main issue in the applications, the Judge accepted that it is arguable with a realistic prospect of success that the relevant law is that (at least in the absence of express agreement of the principal otherwise) an agent only has actual authority to act honestly in pursuit of the interests of the principal and there is no realistic or workable distinction which can be drawn in a case like this between frauds on and by the principal. The judgment includes detailed consideration of the Supreme Court’s decision in Philipp v Barclays Bank UK plc [2024] AC 346.
However, the banks succeeded in their application for strike out in relation to the claim advanced for damages representing the difference between the customers’ liability to lenders as at a date in 2008 or 2009 and their liability to lenders upon their administration. Applying the scope of duty principle set out in Manchester Building Society v Grant Thornton [2022] AC 783 and related ‘SAAMCO’ cases, Butcher J held that in the normal case the purpose of the bank’s duty is to avoid the making of unauthorised payments, and its liability for damages is limited accordingly to the quantum of those unauthorised payments.
Butcher J also left open the argument that where the claimant is a ‘one-man company’, the reasoning in Singularis Holdings Ltd v Daiwa Capital Markets Ltd [2020] AC 1189 will not apply. He therefore declined to strike out the banks’ contingent counterclaims in deceit and unlawful means conspiracy.
William Day was led by Lance Ashworth KC at the hearing, instructed by Alex Jay, Elaina Bailes and Harry Spendlove of Stewarts Law. The judgment can be found here.