England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
MERCANTILE LIST

		The Courthouse 1 Oxford Row, Leeds LS1 3BG
		2 December 2009

Judge Behrens :

1. Introduction

1. The Claimants ("the Partnership") were at all material times a farming partnership between a father and two sons trading under the name or style JT and DE Hall & Sons. Part of the Partnership business was farming the land at New Haggerston Farm at Berwick-upon-Tweed, Northumberland ("the Farm") consisting of a farmhouse (divided into two dwellings) and about 425 working acres.
2. The Defendant ("RBS") became bankers to the Partnership in December 1997. Between 1997 and 2002 the Partnership had an overdraft limit with RBS of between £200,000 and £475,000.
3. In October 2002 the Partnership sold New Haggerston Farm and thereby reduced the overdraft to about £45,000 which sum was later discharged.
4. In September 2008 the Partnership commenced these proceedings against RBS. The Partnership contends that RBS was in breach of the express or implied terms of the contract between them and/or in breach of the tortious duty of care owed to the Partnership.
5. In a nutshell the Partnership complains that the sale of New Haggerston Farm came as a result of a decision and/or pressure exerted by Ms June MacDonald (the Relationship Manager at RBS's Business Account Centre in Edinburgh who was specifically assigned to the Partnership's account in March 2000) to recover the Partnership's debt to RBS and not to continue and/or extend the Partnership's facility.
6. The Partnership relies on the terms of the facility and contends that any demand for repayment should only have been made "in accordance with normal banking practice". It contends that Ms MacDonald's actions offended the Statement of Principles promulgated by the British Bankers Association ("BBA") in March 2001 and were accordingly not in accordance with normal banking practice. It also relies on advertisements promulgated by RBS to the effect that there are locally based agricultural managers and that every agricultural customer has access to sound financial help face to face. It complains that Ms MacDonald was not experienced in agricultural matters, was not locally based and refused to meet any member of the Partnership face to face. It thus lost the opportunity of being able to attempt to persuade Ms MacDonald in a face to face interview to extend or continue the facility.
7. In this application RBS seek to strike out the claim. The principal ground relied on is that there is no such contractual or tortious duty as that alleged by the Partnership.
8. I have been provided with detailed and full skeleton arguments and the application has been extremely well argued on both sides. I am very grateful to Counsel for their very considerable assistance in a by no means straightforward matter.

2. The Facts

9. There has, of course, been no trial and no findings of fact. Many of the facts are, however, not in dispute and/or obtainable from the documents. In any event it is common ground between Mr Kramer and Miss Anderson QC that for the purpose of this application I must assume that the allegations of fact in the Particulars of Claim will be established.

2.1 Introduction to RBS

10. On 8^th October 1997 Mr Patterson, a partner in Greaves West & Ayre, a firm of accountants acting on behalf of the Partnership wrote to Mr Addison, a Senior Manager at the Berwick on Tweed branch of RBS. The letter included a cash flow report. It is not necessary to set out the letter in detail. In summary the Partnership was at that time over-borrowed but was in the process of selling land so as to realise approximately £913,500. It had an unsatisfactory banking arrangement with Barclays Bank plc. Accordingly it was interested to know whether RBS was in principle prepared to offer finance.
11. On 16^th October 1997 Mr Addison wrote to Mr Patterson agreeing in principle to provide an overdraft of £100,000 and a term loan of £450,000.
12. On 27^th October 1997 Mr Patterson wrote inviting Mr Addison to reconsider the proposal on the basis that the term loan of £450,000 would be provided by the Agricultural Mortgage Corporation ("AMC"). The facility sought from RBS comprised an overdraft of £290,000 to the end of January 1998 and £175,000 thereafter. The security offered would be a second charge on New Haggerston Farm and the assignment of a life policy.
13. On 6^th November 1997 Mr McLoughlin, the Business Manager of RBS wrote to Mr Patterson confirming agreement in principle to an overdraft facility of £290,000. The letter set out RBS's terms including the interest rate to be charged and the arrangement fee. On 11^th November 1997 Mr Patterson wrote stating that the Partnership would like to take up the offer.

2.2 The Agreements

14. It is common ground that the arrangement between the parties was governed by a number of short term facility letters. The facility letter dated 11^th December 1997 has been exhibited and it is accepted that the others were in substantially similar terms.
15. At the top of the facility letter in bold capitals is a warning to the Partnership that the document is important and advice that it takes independent legal advice if it has any doubts about the terms of the facility. It also states:

PLEASE NOTE THAT OVERDRAFTS ARE REPAYABLE ON DEMAND

16. The letter refers to the overdraft limit of £318,000 reducing to £175,000 after 31 December 1997. It refers to the rate of interest, the arrangement fee and the review date 31^st January 1998.
17. There are only 6 conditions to the facility. It is only necessary for me to refer to condition 2:

(a) The facility is repayable upon demand in accordance with normal banking practice

(b) Without prejudice to its overriding right to call for repayment on demand it is the Bank's present intention that the facility will be available until the Review Date. The facility will be reviewed on the Review Date but may be extended by mutual agreement.

2.3 The transfer of the account to Ms MacDonald

18. It is common ground that the facility commenced in December 1997 and was renewed and/or varied on a number of occasions set out in paragraph 3 of the Particulars of Claim

Date of Offer	Limit	Review Date
11/12/1997	£318,000 (reducing to £175,000)	31/1/1998
7/1/1998	£210,000 (reducing to £175,000)	31/1/1998
11/2/1998	£200,000	28/2/1998
13/5/1998	£240,000	31/8/1998
10/6/1998	£285,000	1/9/1998
18/11/1998	£285,000	15/12/1998
17/2/1999	£325,000	30/4/1999
20/9/1999	£400,000	31/10/1999
12/6/2000	£430,000(reducing to £390,000)	31/10/2000
21/5/2001	£475,000	31/1/2002
7/5/2002	£475,000	31/9/2002

19. It is common ground that the level of the Partnership's borrowing was at or around the overdraft limit. It can thus be seen that there was a gradual increase in the borrowing from the £175,000 suggested in December 1997 to the £475,000 in May 2002. According to the Partnership the extension of the facility was necessary owing to an unusual succession of poor harvests and low cereal commodity prices affecting all farming businesses in the area.
20. On 17^th March 2000 RBS wrote to the Partnership advising that it had concerns over the status of the borrowing as, following a farm audit, the account was running £50k ahead of the cash flow forecast. Accordingly control of the account was to be passed to RBS's Business Account Centre in Edinburgh. RBS would be operating a telephone management system for the accounts and the relationship manager would be Ms MacDonald. All aspects of the banking relationship were to be dealt with by Ms MacDonald and all future communications were to be directed to her. The letter went on to give a telephone contact address for Ms MacDonald.
21. It is the Partnership's case that Ms MacDonald had no real experience of dealing with agricultural customers and in understanding the peculiar problems facing the farming industry in particular the devastating impact of the outbreak of Foot and Mouth Disease in 2001. It contends that Ms MacDonald demonstrated that her sole objective was to recover the Partnership's debt to RBS without incurring further exposure on the part of RBS.
22. RBS required repayment of the overdraft by 31^st August 2001 although it ultimately extended this deadline until September 2002 in order to give the Partnership time to sell the Farm.

2.4 The sale of New Haggerston Farm

23. The Partnership sold New Haggerston Farm in October 2002 for £975,000. After discharging the loan to AMC the sum of £431,176.29 was paid into the Partnership bank account on 15^th October 2002. This payment reduced the overdraft to £42,663.92. The Partnership then operated with a reducing overdraft until March 2003 when all of the remaining borrowing was repaid.
24. It is the Partnership's case that if RBS had continued and/or extended the loan it would not have been forced to sell New Haggerston Farm in 2002 when the market was depressed. It has therefore suffered loss by selling at this depressed value and/or has been unable to make the profits it would otherwise have made.

2.5 The Advertisements

25. As already noted the Partnership places reliance on advertisements promulgated by RBS. For the purpose of this application it is to be assumed that the Partnership saw them and relied on them.
26. One advertisement was in the following terms:

In our experience no two agricultural businesses are the same.

That's why at [RBS] we've developed a range of business and personal banking facilities which can be genuinely tailored to meet individual situations and circumstances. And why we ensure that every agricultural customer has regular access to sound financial help, face to face.

The other read:

FREE FARM SERVICE REVIEW

…Our Agricultural Managers are based locally and understand farming in your area.

They can give you a financial review of everything from past performance and future planning to personal finance and planning for financial security. And if you're short on time, they'll fit in around your work and come out to see you.

2.6 The Statement of Principles

27. It also placed reliance on the Statement of Principles promulgated by the BBA in March 2001. I shall not lengthen this judgment by setting out the Principles in full but I was taken to the Introduction Section and to Section 3 – Agreeing the way Forward. Amongst the Principles set out were:

1. These Principles are intended to help businesses work effectively with their bank when they require finance for the first time and as their needs change thereafter.

2. The Principles set out in general terms how both can address financial difficulties in a positive way …

3. Banks have long supported a rescue culture and thousands of customers are in business to-day because of the support of their bank through difficult times. …

4. Agreement of a way forward for a potentially viable business is in the interests of both the bank and the customer. Sometimes the existing legal entity and management structure running the business cannot be saved but a restructuring … can preserve the underlying business.

5. Where a review of your business is undertaken we will discuss with you (and your advisers) the information provided before reaching any conclusions or taking any action.

3. The allegations in the Particulars of Claim

28. Many of the allegations in Particulars of Claim have been summarised in the previous section. It is however necessary to summarise the structure of the pleading

3.1 The duties owed by RBS to the Partnership

29. The allegations of duty appear in paragraphs 4 and 8 of the Particulars of Claim. Paragraph 4 sets out what are alleged to be express terms of the contract. The most important of these is that contained in paragraph 4(a)

That the facility so offered was repayable on demand in accordance with normal practice (which, on its true construction, meant that in demanding repayment RBS was obliged to act fairly and reasonably and (if the Partnership was in financial difficulties) sympathetically and positively)

30. Paragraph 8 sets out what are alleged to be implied terms or equivalent tortious duties:

To exercise the care and skill reasonably to be expected of a bank with particular expertise in dealing with agricultural customers – and specifically to exercise that degree of care and skill in deciding whether to continue and/or extend the Partnership's facility

3.2 The breach of duty.

31. The breaches of duty are pleaded in paragraphs 9 to 19 of the Particulars of Claim and summarised in paragraph 19.

(1) Putting an inexperienced person in charge of the facility and having inexperienced people make decisions about it (Particulars of Breach (1) and (2));

(2) Failing to arrange requested face-to-face meetings (Particulars of Breach (3));

(3) Acting unreasonably when deciding whether to continue or increase the facility (Particulars of Breach (4)).

3.3 The loss

32. The loss is pleaded in very vague terms in the Particulars of Claim. In particular it is alleged that the Partnership was compelled to sell New Haggerston Farm earlier than it would otherwise have done and that it has thereby suffered loss. Whilst there is no doubt the allegations of loss could be made the subject of a Request for Further Information under Part 18 of the CPR the vagueness of the allegations are not relied on in this application.

4. Submissions of Mr Kramer on behalf of RBS

33. In a detailed and comprehensive analysis of the law Mr Kramer divided his submissions into a number of sections:

4.1 Nature of the overdraft facility

34. Mr Kramer submitted that it was crystal clear from the warning in bold capitals at the top of the facility and the terms of clause 2 of the facility that this overdraft was repayable on demand. He referred to clause 2(b) to the fact that RBS had an express right to demand repayment before the Review Date and would only be extended thereafter by mutual agreement
35. He submitted that this was normal banking practice and the words "in accordance with normal banking practice" in no way restricted RBS's right to demand repayment of the overdraft at any time. He referred me to an observation of Ralph Gibson J in William's and Glyn's Bank Ltd v Barnes (unreported, noted [1981] Com LR 205):

"bankers did in and before January 1874 regard repayability on demand as a universal or normal attribute of overdrafts, but there is nothing to suggest that they regarded that attribute as overriding an agreement to the contrary…

In truth, this custom or usage is no more than recognition of the rule of law which results from the nature of lending money: money lent is repayable without demand, or at latest on demand, unless the lender expressly or impliedly agrees otherwise.

36. He also referred to me to a passage from the judgment of Kennedy LJ in Lloyd's Bank plc v Lampert [1991] 1 All ER (Comm) 161 (CA)

"I am wholly unpersuaded that the words 'repayable on demand' used in the facility letter do not mean what they say. It is in no way inconsistent for a bank, or any other lender to grant a facility which it and the borrower both envisage will last for some time, but with the caveat that the lender retains the right to call for repayment at any time on demand. That is what happened here. As the judge said, the terms of the facility letter and the other circumstances to which Mr Cohen has referred disclose no incompatibility. The bank was therefore entitled to do as it did on 10 July 1996 and to require Heritage to repay on demand."

4.2 The alleged duties owed by RBS

37. In paragraph 22 of his skeleton argument Mr Kramer analysed the Partnership's claims as being :

1. a duty to consider all relevant factors by an experienced decision-maker when deciding whether to continue or increase the loan ("the Duty to Consider"), and

2. a duty when considering whether to extend the loan or demand repayment to act fairly and reasonably and (if the Partnership was in financial difficulties) sympathetically and positively" ("the Duty to Protect").

38. He submitted that it was clear on the authorities that neither of these supposed duties existed with the result that the claim was bound to fail and should be struck out.

The General Law

39. Mr Kramer started by setting out some well known propositions:

where there is an express contract and contractual relationship, the question is primarily one of contract law, applying the usual tests of interpretation and implied terms: would the parties reasonably understand the Bank to have assumed a duty of care towards the Claimants, such a duty either being the correct interpretation of an express term, or implied as being so obvious it goes without saying or otherwise a clear part of what the contract reasonably appears to mean to the parties.

40. He then referred me to the discussion in the speech of Lord Bingham in Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, per Lord Bingham at [4] to [8]. A duty of care to prevent economic loss requires:

1. that loss to the Claimants be a foreseeable result of carelessness;

2. that the parties be in sufficient proximity for a duty to arise, which is usually more clearly understood by asking whether the parties should reasonably have understood the Bank to have assumed responsibility towards the Claimants under the famous test of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465;

3. that the imposition of a duty of care would be fair, just and reasonable on the parties;

4. that the incremental (and precedential) approach means that where a duty of care has been found or rejected in a previous case, subsequent courts should be slow to reach a different view.

Banks and Borrowers

41. Mr Kramer submitted that there was extensive authority to justify a number of propositions

1. A bank does not ordinarily owe a duty of care to a customer to whom it lends money" per Silber J in Murphy v HSBC Bank plc [2004] EWHC 467 (Ch) at [96].

2. A mortgagee when appointing a receiver does not have a duty to 'consider all relevant matters' before exercising the power: Shamji v Johnson Matthew Bankers Ltd [1986] BCLC 278 (Hoffmann J).

Mr Kramer relies on this case because the duty was framed in similar terms to that here, namely as a 'duty of care to consider all relevant matters before appointing any receivers and managers' over the borrowers' property. In the course of his judgment Hoffmann J said at 283-4:

"in the case of a conflict between the interests of the mortgagor and mortgagee, any duty of care which the mortgagee owes to the mortgagor is subordinated to his right to act in the protection of his own interests...

The appointment of a receiver seems to me to involve an inherent conflict of interest... [The power to appoint a receiver] is granted to the mortgagee by the security documents in completely unqualified terms. It seems to me that a decision by the mortgagee to exercise the power cannot be challenged except perhaps on grounds of bad faith. There is no room for the implication of a term that the mortgagee shall be under a duty to the mortgagor to 'consider all relevant matters' before exercising the power. If no such qualification can be read into the security documents, I do not think that a wider duty can exist in tort."

3. No duty of care is owed to the customer or an interested third party when a bank exercises its standard right of withdrawal of overdraft facilities at will.

In support of this proposition Mr Kramer relies on the Encyclopaedia of Banking Law at paragraph C93, who rely upon the Court of Appeal decision in Chapman v Barclays Bank Plc (26.3.97). In that case, the claimants alleged negligence of the bank lender in relying upon an independent financial report of the claimants (the Ernst & Whinney report) that the bank knew to be inaccurate. The Court upheld the view of the judge at first instance that there was a duty to consider the particular report. The bank had required the borrowers to procure it and pay for it and thereby was under a duty at least to consider it. However the bank had in fact considered the report. It was held that there was no broader duty to give fair consideration to the report, or to act upon the report, or any general duty in deciding whether to withdraw the facility.

Mr Kramer referred in particular to the judgment of Otton LJ at page 9 of the transcript where he accepted the argument of Counsel for the Bank [Mr Andrew Sutcliffe] that the Bank was under no duty to consider the report a particular degree of care in order to safeguard the interests of not only the borrower but other third parties

4.3 The present case

42. Mr Kramer then sought to apply these principles to the present case and made the following submissions:

1. There is no precedent in the case law for duties such as those alleged by the Partnership.

2. The duties alleged are inconsistent with the express terms of the facility and also with the case law – especially the approach of Hoffmann J in Shamji.

3. The words "in accordance with normal banking practice" in clause 2(a) when read with the warning at the top of the facility letter and clause 2(b) cannot be taken to restrict RBS's right to not to extend or continue the facility.

4. Neither the advertisements nor the Statement of Principles affect the position. He described the advertisements as "anodyne". He made the point that the advertisements did not guarantee "face to face" meetings and/or "local expertise" whatever the circumstances. It was common ground that the Partnership had the benefit of face to face meetings with the local manager before March 2000 and that the management of the account was only transferred to Edinburgh as a result of concerns about the account felt a local level. There is nothing in the advertisements or the statement of principles which prevented RBS from taking that course. If the Partnership did not like its account being managed from Edinburgh and could find an alternative local lender it had the right to move its account elsewhere.

43. At one time Mr Kramer was disposed to argue that even if there was a duty as alleged by the Partnership there was plainly no breach by RBS that had caused any loss to the Partnership. In the end, however, it seemed to me that he accepted that if there were duties as alleged by the Partnership there were triable issues on both breach and causation.

5. Submissions of Miss Anderson QC on behalf of the Partnership.

44. In her skeleton argument Miss Anderson QC emphasised that the duties that the Partnership contend for are nothing like as radical or as extensive as RBS suggest. It does not, for example, contend that in normal circumstances a bank was not entitled to transfer the management of an account to a different distant branch, or that a bank was compelled to hold face to face meetings with its customer before making important decisions relating to the facility. Indeed, as I understood her submissions, her approach was much more focussed and fact sensitive.
45. In paragraph 2.4 of her skeleton argument she put the matter thus:

Cs' case is a simple one: that having held itself out as being especially sympathetic to the particular economic and social plight of farmers, RBS's representations in turn informed the nature and scope of the contractual and/or tortious duties owed by it as banker to its customer. In particular, there were incidents of such duties that:

2.4.1 RBS was obliged generally to exercise the care and skill reasonably to be expected of a bank with particular expertise in dealing with farmers;

2.4.2 Specifically, that having made representations to the effect that it possessed dedicated "agricultural managers" RBS was under a duty to make decisions as to how to exercise its powers in the light of its professed understanding of their special problems;

2.4.3 RBS was also obliged to adhere to the principles in the Statement of Principles including helping businesses which get into difficulties and supporting a rescue culture

46. In oral argument she made the point that the alleged duty was a narrow one. She formulated it in this way:

"when making decisions in relation to the account we will take reasonable care to do so firstly by using people who understand your business, secondly taking account your position as part of the agricultural community and thirdly in accordance with normal banking practice which imports the principles of the Statement of Principles"

47. She accepted that there was no specific authority where such a duty had been held to exist. She also accepted that the existence of such a duty had to be judged on the basis of the four fold test enunciated by Lords Bingham in Customs & Excise Commissioners v Barclays Bank plc.
48. She made a number of points in support of her submissions:

1. The scope and extent of the relevant duty is not the radical one that all Bank's owe different duties to farmers but the much more limited submission that, having regard to these specific facts, RBS's duties were specifically informed by the representations it made to the Partnership as prospective customers.

2. The Partnership does not advance the broad contention that a Bank cannot, in normal circumstances, transfer the management of the relationship between different branches or different managers. The complaint as to breach is a much more focused one which is, once again, wholly informed by the promises and representations which RBS made to its farming customers as to the sort of person who would manage the account. In short, the breach is a consequence of the particular scope of the duty of care which, in turn, is informed by the specific assurances made by RBS. No "floodgates" argument arises because the class of persons owed the duty is in turn reflective of the class of persons to whom those promises/representations/assurances were made.

3. The failure of Ms MacDonald to meet face to face with the partners despite their requests was directly at odds with the assurances that RBS would "ensure that every agricultural customer has regular access to sound financial help, face-to-face" and the Bank's professed experience that "no two agricultural businesses are the same". RBS offered this assurance for only one reason – it knew that farmers prefer to deal face to face. It cannot pitch for business on the basis of a professed understanding of such a need and, when it fails to provide it, argue that the scope of their duty did not extend to offering such meetings.

4. Miss Anderson QC did not accept that the use of the words "in accordance with normal banking practice" added nothing in condition 2(a). In her submission it placed a restriction on the making of a demand – that the demand had to be in accordance with normal banking practice. Furthermore it was normal banking practice to comply with the Statement of Principles. Thus there was a positive obligation to comply with the Statement of Principles before making a demand. If it had been the intention of the parties that the words "in accordance with normal banking practice" were meaningless they would not have been included.

5. Equally Miss Anderson QC did not accept that the advertisements were bland or anodyne. They were pitched at farmers and should be held to create a duty not only in the good times but the bad times as well. Indeed it is in the bad times that farmers are most likely to need face to face meetings with bankers experienced in agriculture as it is then that they will need to explain what is going on.

49. Miss Anderson QC submitted that the duties she proposed fitted in well with the incremental approach advocated by Lord Bingham. She accepted that there was no case where the proposed duties had been held to exist but pointed out that there was equally no case where they have been held not to exist. She submitted that there was nothing in the authorities which precluded the court from holding that the duties existed. She pointed out that in Chapman the Court of Appeal recognised that there was a duty to consider the report before making its decision; the duties she is proposing are only incrementally different from that. In the light of the advertising material and the Statement of Principles there is no reason why RBS should not have assumed a responsibility to the Partnership to manage its account locally, to ensure that decisions are made by persons with appropriate agricultural experience and have face to face meetings before important decisions are made.
50. Thus she invited me to hold that it was not hopeless to argue that the proposed duties existed and the claim should not be struck out.

6. Discussion and conclusions

51. As I indicated earlier in this judgment the arguments have been of the highest quality and as a result my mind has wavered both during the course of submissions and during the time whilst I have been considering this judgment.
52. In the end, however, I prefer the submissions of Mr Kramer and do consider that the claim should be struck out. My reasons (which are largely those of Mr Kramer) may be summarised:

1. I accept Mr Kramer's submission that the duties are largely to be determined in accordance with the contract between the parties. I also accept that the expression "in accordance with normal banking practice" does not cut down RBS's right to demand repayment of the loan and/or not to extend it beyond the Review Date or indeed to refuse to increase the facility. I agree with the observations of both Ralph Gibson J and Kennedy LJ in the cases cited as to normal banking practice. Furthermore in the light of the remainder of the facility letter including condition 2(b) and the warning in bold at the top I am wholly unpersuaded that the parties can be taken to have intended that RBS's right to demand repayment were in any way restricted.

2. I think the authorities – especially the decisions in Shamji and Chapman do show that the courts will not impose a duty on a bank in circumstances where the exercise of that duty will create a conflict of interest between the bank's interests and that of its customers. It seems to me that the duties proposed in paragraph 4 of the Particulars of Claim, in paragraphs 2.4.2 and 3 of Miss Anderson QC's skeleton argument and in the oral formulation of the duty in the course of argument do give rise to this potential conflict of interest. In those circumstances in agreement with Mr Kramer, I consider that the proposed duties are contrary to authority.

3. Whilst it is true that the advertisements refer to agricultural customers having regular access to sound financial help face to face there is nothing in the advertisement that guarantees or even promises that all decisions relating to the account of agricultural customers will be made by agricultural experts. The experts are said to be there to give financial help. There is no real complaint of lack of help. Furthermore it has to be remembered that the Partnership did have the benefit of locally based and managed facilities until March 2000 (a period of 2¼ years) and only moved the account at a time when the limit was £400,000 and the local manager had concerns over the cash flow. For my part I find it impossible to imply into the contract a duty on RBS to ensure that all future decisions about the account will be made by locally based agricultural experts. I do not think it a fair or reasonable interpretation of the advertisements or fair and reasonable to impose such a duty on RBS in circumstances such as this.

53. In the result I agree with Mr Kramer that this claim should be struck out.

JOHN BEHRENS