Norwich Pharmacal applications in the context of unjust enrichment and some practical advice

Katharine Alexander

Santander UK plc v National Westminster Bank plc concerned the granting of various Norwich Pharmacal orders in favour of Santander UK plc against other banks, the customers of which wrongly received funds following mistaken electronic payments by Santander into the wrong accounts. Norwich Pharmacal orders allow an applicant to obtain an order from the court compelling a respondent caught up in the wrongdoing to identify the wrongdoer.

In 2013, Santander introduced a new system of dealing with misdirection of funds mistakes. The process involves requesting a refund from the beneficiary bank. Since 1 April 2014, this is required the permission of the beneficiary individual. If nothing is heard back from the bank, or the beneficiary refuses to refund the payment, Santander makes a Norwich Pharmacal application as a last resort, to obtain the identity of the beneficiary in order to bring proceedings for the money.

Three main issues were dealt with by Birss J in deciding this case:

  • He found that Santander had a right to restitution, because the enrichments were unjust.
  • He found that jurisdiction to grant Norwich Pharmacal orders was engaged as the unjust enrichments constituted an equitable wrong and, in instances where the beneficiary had chosen not to respond or refund the money, there was “no other reasonable course” for Santander to take.
  • The orders sought by Santander (for the name, address, telephone number and email address of a beneficiary) were found to be proportionate when balancing the fundamental rights of Santander and the beneficiary, and considering privacy and data protection issues. It was unnecessary and disproportionate, however, to obtain the beneficiary’s date of birth.

The fourth element of the judgment deals with how future applications of this kind should be handled. Santander had been making its applications under Part 23 of the CPR (on the basis that they were unlikely to be contested). However this caused administrative difficulties for the court in identifying applications once they had been made. The court recommended that in future applicants making large numbers of applications for Norwich Pharmacal orders should bring their first applications as claims under CPR Part 7 or CPR Part 8 (as appropriate), even if the applications were unlikely to be contested. This would enable to the courts to identify the issues early. Birss J also advised that such applicants should “alert the court at the outset” so the court could establish how best to deal with such a large number of applications.

Santander UK plc v National Westminster Bank plc and others [2014] EWHC 2626 (Ch)

Post By Katharine Alexander (2 Posts)

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