Barclays Bank v Quistclose Investments Ltd [1968] UKHL 4 (31 October 1968) (original) (raw)

Parliamentary Archives, HL/PO/JU/4/3/1160

HOUSE OF LORDS

BARCLAYS BANK LIMITED

QUISTCLOSE INVESTMENTS LIMITED

Lord Reid
Lord of Morris Borthy-y-Gest
Lord Guest
Lord Pearce
Lord Wilberforce

Lord Reid

my lords,

I agree with the speech of my noble and learned friend, Lord Wilberforce.
I would only add that I am by no means satisfied that this House would
be precluded from holding, in such circumstances as exist in this case, that
notice of the trust received by the Bank after they had received the money
could be effective.

I would dismiss this appeal.

Lord Morris of Borth-y-Gest

my lords,

I am in agreement with the speech of my noble and learned friend, Lord Wilberforce, which I have had the advantage of reading.

I would dismiss the appeal.

Lord Guest

my lords,

I have had the advantage of reading the opinion of my noble and learned friend, Lord Wilberforce. I agree with it and would dismiss the appeal.

Lord Pearce

my lords,

I have had the advantage of reading the opinion of my noble and learned friend, Lord Wilberforce. I entirely agree with it. Accordingly, I would
dismiss the appeal.

Lord Wilberforce

my lords,

The events with which the present appeal is concerned took place in the
final weeks preceding the collapse of Rolls Razor Ltd., an enterprise of
which the moving spirit was Mr. John Bloom. The Company's audited
accounts for the year 1963 showed a considerable trading profit: an interim
dividend of 80 per cent, had been paid, and the figures admitted of the
payment of a substantial final dividend. On 14th May, 1964, the Directors,
at a Board meeting, agreed to recommend a final payment of 120 per cent.
But the Company had no liquid resources to enable it to pay this dividend,
which required a net sum, after deduction of tax, of £209,719 8s. 6d. On
4th June, 1964, its overdraft with the Appellant Bank was £485,000, against
a limit of £250,000, and on that day the Bank by letter to Mr. Leslie
Goldbart, one of the Directors, required this situation to be rectified, and
stated that it would be unable to help in the payment of the final dividend
unless this was made within the overdraft limit of £250,000.

The Annual General Meeting of Rolls Razor Ltd. was held on 2nd July,
1964, and payment of the 120 per cent, dividend was approved. No date
was fixed by the approving resolution, but the Directors contemplated that
payment would be made on 24th July. Approval of the dividend made
the Company a debtor in respect of the net amount to its shareholders.
Provision of the sum required to pay it, as also of finance to enable the
Company to continue trading, was the subject of negotiations by Mr. Bloom
during the early part of July. He succeeded in obtaining the money needed
to pay the dividend from the Respondent Company, which he owned or
controlled. At a Board meeting of the latter held on 15th July, 1964,
it was resolved that a loan of £209,719 8s. 6d. be made to Rolls Razor Ltd.
" for the purpose of that Company paying the final dividend on 24th July
" next". On the same day, a cheque for that sum was drawn by the
Respondent Company in favour of Rolls Razor Ltd. Rolls Razor Ltd. sent
this cheque to the Appellant Bank's City Branch Office together with a
covering letter on the notepaper of Rolls Razor Ltd., also dated 15th July,
1964, signed by Mr. Goldbart and addressed to Mr. G. H. Parker, a joint
Manager of that Branch in the following terms: —

" Dear Mr. Parker,

" Confirming our telephone conversation of to-day's date, will you
'' please open a No. 4 Ordinary Dividend Share Account.

" I enclose herewith a cheque valued at £209,719 8s. 6d. . . . being
" the total amount of dividend due on the 24th July 1964. Will you
" please credit this to the above mentioned account.

"We would like to confirm the agreement reached with you this
" morning that this amount will only be used to meet the dividend due
" on the 24th July 1964."

From an answer to an interrogatory administered to the Bank in the course
of the action, it appeared that, in the telephone conversation referred to
in this letter, Mr. Goldbart had informed Mr. Parker that arrangements
had been made with an unspecified person to lend or otherwise provide
money for the purpose of paying the dividend due to be paid by Rolls
Razor Ltd. on 24th July, 1964.

The Appellant Bank had, on 8th June, 1964, opened an Ordinary Dividend
No. 4 account. The Respondents' cheque for £209,719 8s. 6d. was specially
cleared and credited to this account on 17th July, 1964. Mr. Bloom was
unable to raise further sufficient finance and on 17th July, 1964, the Directors
of Rolls Razor Ltd., resolved to put the Company into voluntary liquidation ;
the Appellant Bank was so informed. On or about 20th July it amalgamated
all the accounts of the Company except the Ordinary Dividend No. 4 account.
On 5th August, 1964, the Respondent's solicitors demanded repayment from
Rolls Razor Ltd. of the sum of £209,719 8s. 6d. but repayment was not
made and no demand at this time was made upon the Appellant Bank.
The effective resolution for the liquidation of Rolls Razor Ltd. was passed
on 27th August, 1964, and on the following day the Appellant Bank set off
the credit balance on Ordinary Dividend No. 4 account against part of the
debit balance on Rolls Razor Ltd.'s other accounts. There followed in due
course demand by the Respondents for repayment of this sum by the Bank
and the present proceedings.

Two questions arise, both of which must be answered favourably to the
Respondents if they are to recover the money from the Bank. The first is
whether as between the Respondents and Rolls Razor Ltd. the terms upon
which the loan was made were such as to impress upon the sum of
£209,719 8s. 6d. a trust in their favour in the event of the dividend not being
paid. The second is whether, in that event, the bank had such notice of
the trust or of the circumstances giving rise to it as to make the trust binding
upon them.

It is not difficult to establish precisely upon what terms the money was
advanced by the Respondents to Rolls Razor Ltd. There is no doubt that
the loan was made specifically in order to enable Rolls Razor Ltd. to pay

the dividend. There is equally, in my opinion, no doubt that the loan was
made only so as to enable Rolls Razor Ltd. to pay the dividend and for
no other purpose. This follows quite clearly from the terms of the letter
of Rolls Razor Ltd. to the Bank of 15th July, 1964, which letter, before
transmission to the Bank, was sent to the Respondents under open cover in
order that the cheque might be (as it was) enclosed in it. The mutual inten-
tion of the Respondents and of Rolls Razor Ltd., and the essence of the
bargain, was that the sum advanced should not become part of the assets
of Rolls Razor Ltd., but should be used exclusively for payment of a
particular class of its Creditors, namely, those entitled to the dividend. A
necessary consequence from this, by process simply of interpretation, must be
that if, for any reason, the dividend could not be paid, the money was to
be returned to the Respondents: the word " only " or " exclusively " can have
no other meaning or effect.

That arrangements of this character for the payment of a person's Creditors
by a third person, give rise to a relationship of a fiduciary character or trust,
in favour, as a primary trust, of the creditors, and secondarily, if the primary
trust fails, of the third person, has been recognised in a series of cases over
some 150 years.

In _Toovey_v. Milne (1819) 2 Barn. & Ald. 683 part of the money advanced
was, on the failure of the purpose for which it was lent (viz. to pay certain
debts) repaid by the bankrupt to the person who had advanced it. On action
being brought by the assignee of the bankrupt to recover it, the plaintiff was
nonsuited and the nonsuit was upheld on a motion for a retrial. In his
judgment Abbott C.J. said:

" I thought at the trial, and still think, that the fair inference from the
" facts proved was that this money was advanced for a special purpose,
" and that being so closed with a specific trust, no property in it passed
" to the assignee of the bankrupt. Then the purpose having failed, there
" is an implied stipulation, that the money shall be repaid. That has
" been done in the present case ; and I am of opinion that that repay-
" ment was lawful, and that the nonsuit was right."

The basis for the decision was thus clearly stated, viz., that the money
advanced for the specific purpose did not become part of the bankrupt's
estate. This case has been repeatedly followed and applied (see Edwards v.
Glynn (1859) 2 E. & E. 29 ; Re Rogers ex parte Holland and Hannen (1891)
8 Morr. B.C. 243 ; Re Drucker [1902] 2 KB 237 C.A.; _Re Holley_[1915]
1 Hansell 181). Re Rogers was a decision of a strong Court of Appeal.
In that case, the money provided by the third party had been paid to the
creditors before the bankruptcy. Afterwards the trustee in bankruptcy
sought to recover it. It was held that the money was advanced to the
bankrupt for the special purpose of enabling his creditors to be paid, was
impressed with a trust for the purpose and never became the property of
the bankrupt. Lindley L.J. decided the case on principle but said that if
authority was needed it would be found in Toovey v.Milne (u.s.) and other
cases. Bowen L.J. said that the money came to the bankrupt's hands
impressed with a trust and did not become the property of the bankrupt
divisible amongst his creditors, and the judgment of Kay L.J., was to a similar
effect.

These cases have the support of longevity, authority, consistency and, I
would add, good sense. But they are not binding on your Lordships and
it is necessary to consider such arguments as have been put why they should
be departed from or distinguished.

It is said, first, that the line of authorities mentioned above stands on its
own and is inconsistent with other, more modern, decisions. Those are
cases in which money has been paid to a company for the purpose of
obtaining an allotment of shares (see Moseley v.Cressey's Co. 1865 L.R.
1 Eq. 405 ; Stewart v.Austin L.R. 3 Eq. 299; The Nanwa Gold Mines Ltd. [1955] 1 W.L.R. 1080). I do not think it necessary to examine these cases
in detail, nor to comment on them, for I am satisfied that they do not affect

the principle on which this appeal should be decided. They are merely
examples which show that, in the absence of some special arrangement
creating a trust (as was shown to exist in Re Nanwa Gold Mines Ltd.),
payments of this kind are made upon the basis that they are to be included
in the company's assets. They do not negative the proposition that a trust
may exist where the mutual intention is that they should not.

The second, and main, argument for the Appellants was of a more
sophisticated character. The transaction, it was said, between the Respondents'
and Rolls Razor Ltd., was one of loan, giving rise to a legal action of debt.
This necessarily excluded the implication of any trust, enforceable in equity,
in the Respondents' favour: a transaction may attract one action or the other,
it could not admit of both.

My Lords, I must say that I find this argument unattractive. Let us see
what it involves. It means that the law does not permit an arrangement to
be made by which one person agrees to advance money to another, on terms
that the money is to be used exclusively to pay debts of the latter, and if,
and so far as not so used, rather than becoming a general asset of the
latter available to his creditors, at large, is to be returned to the lender. The
lender is obliged, in such a case, because he is a lender, to accept, whatever
the mutual wishes of lender and borrower may be, that the money he was
willing to make available for one purpose only shall be freely available
for others of the borrower's creditors for whom he has not the slightest
desire to provide.

I should be surprised if an argument of this kind—so conceptualist in
character—had ever been accepted. In truth it has plainly been rejected
by the eminent judges who from 1819 onwards have permitted arrangements
of this type to be enforced, and have approved them as being for the benefit
of creditors and all concerned. There is surely no difficulty in recognising
the co-existence in one transaction of legal and equitable rights and remedies :
when the money is advanced, the lender acquires an equitable right to see
that it is applied for the primary designated purpose (see Re Rogers (u.s.)
where both Lindley L.J. and Kay L.J. explicitly recognised this): when
the purpose has been carried out (i.e. the debt paid) the lender has his remedy
against the borrower in debt: if the primary purpose cannot be carried out,
the question arises if a secondary purpose (i.e. repayment to the lender) has
been agreed, expressly or by implication: if it has, the remedies of equity
may be invoked to give effect to it, if it has not (and the money is intended
to fall within the general fund of the debtor's assets) then there is the
appropriate remedy for recovery of a loan. I can appreciate no reason why
the flexible interplay of law and equity cannot let in these practical arrange-
ments, and other variations if desired : it would be to the discredit of both
systems if they could not. In the present case the intention to create a
secondary trust for the benefit of the lender, to arise if the primary trust, to
pay the dividend, could not be carried out, is clear and I can find no reason
why the law should not give effect to it.

I pass to the second question, that of notice. I can deal with this briefly
because I am in agreement with the manner in which it has been disposed
of by all three members of the Court of Appeal. I am prepared, for this
purpose, to accept, by way of assumption, the position most favourable to
the bank, i.e., that it is necessary to show that the bank had notice of
the trust, or of the circumstances giving rise to the trust, at the
time when they received the money, viz., on the 15th July, 1964,
and that notice on a later date, even though they had not in any real sense
given value when they received the money or thereafter changed their
position, will not do. It is common ground, and I think right, that a mere
request to put the money into a separate account is not sufficient to
constitute notice. But on 15th July, 1964, the bank, when it received the
cheque, also received the covering letter of that date which I have set out
above: previously there had been the telephone conversation between Mr.
Goldbart and Mr. Parker, to which I have also referred. From these there
is no doubt that the bank was told that the money had been provided on
loan by a third person and was to be used only for the purpose of paying
the dividend. This was sufficient to give them notice that it was trust money

and not assets of Rolls Razor Ltd.: the fact, if it be so, that they were
unaware of the lender's identity (though the Respondent's name as drawer
was on the cheque) is of no significance. I may add to this, as having some
bearing on the merits of the case, that it is quite apparent from earlier
documents that the bank were aware that Rolls Razor Ltd. could not provide
the money for the dividend and that this would have to come from an
outside source and that they never contemplated that the money so provided
could be used to reduce the existing overdraft. They were in fact insisting
that other or additional arrangements should be made for that purpose.
As was appropriately said by Russell L.J., it would be giving a complete
windfall to the bank if they had established a right to retain the money.

In my opinion, the decision of the Court of Appeal was correct on all
points and the appeal should be dismissed.

(3l8779) Dd. 197022 15010/68 St.S.