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Barclay’s Bank V. Wj Simms Notes

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BARCLAY'S BANK V. WJ SIMMS FACTS A housing association drew a cheque for PS24,000 on its account with the plaintiff bank, in favour of a building company, there being sufficient funds in the association's account to meet the cheque. The following day a receiver was appointed to call in the building company's assets, and as a result the association phoned the bank to give instructions to stop the cheque, subsequently confirming its telephone instructions in writing to the bank. The bank's computer was programmed accordingly, and the following morning the amendment to the computer was checked by the bank's staff. That same day the receiver presented the cheque, and the bank's paying official, overlooking the stop instruction, made payment on that date. The bank did not give notice to the company or the receiver of its claim for repayment on the day the cheque was paid but subsequently demanded repayment of the sum of PS24,000 from the receiver, who refused to make repayment. ISSUE This case raises for decision the question whether a bank, which overlooks its customer's instructions to stop payment of a cheque and in consequence pays the cheque on presentation, can recover the money from the payee as having been paid under a mistake of fact. HOLDING (LORD GOFF) Rejection of the supposed liability rule Kelly v. Solari: The case was concerned with a payment made with the intention of discharging a supposed liability of the plaintiff to the defendant. It is no doubt for that reason that the first part of Parke B.'s statement of principle was directed to such a case; though it is to be observed that, in the context of such a case, Parke B. did not place any restriction on the nature of the mistake which would ground recovery. But it would not, in my judgment, be right to infer that Parke B. was stating that money paid under a mistake of fact was only recoverable in cases where the plaintiff's mistake led him to believe that he was under a liability to the defendant to pay the money to him. There is nothing to indicate that the first part of his statement of principle was intended so to restrict the right of recovery; indeed later in his judgment he stated the principle of recovery in broader terms, as did Rolfe B., which appears to indicate that it is sufficient to ground recovery that the plaintiff's mistake has caused him to make the payment. Branwell B in Aiken v. Short: It appears from the rather fuller report in 25 L.J. Ex. 321, 324 that Bramwell B. did not necessarily regard his statement of principle as comprehensive. But, strictly

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