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Lloyd's Maritime and Commercial Law Quarterly

FRAUD AND ELECTRONIC FUNDS TRANSFERS

Gerard McMeel*

Tidal Energy v Bank of Scotland

Launched in 1994, CHAPS1 provides a same-day, or near real-time, electronic payment system for higher value payments, which handled £70.1 trillion of funds transfers in 2013.2 That equated to £277 billion each day, with CHAPS routinely processing on a weekly basis sums equivalent to the UK’s gross domestic product.3 Altogether the UK’s payments systems handle more than 20 billion transactions each year, with a total value of over £75 trillion.4 As the most significant processor of high-value payments, CHAPS is an essential cog in the machinery of commerce and finance. It is familiar to most individuals as the system employed by mortgage providers and solicitors when purchasing a home. It is also the system employed for inter-bank transfers and a principal mode of discharging larger commercial debts. As such, CHAPS routinely handles six-figure, seven-figure and even larger sums in sterling, apparently on the basis of matching 14 digits alone: that is, the payee’s sort code and account number. The conduct, competitiveness and integrity of such payment systems has become an increasing concern of central bankers and financial regulators, with the UK having recently established a Payment Systems Regulator, under the aegis of the Financial Conduct Authority to promote competition and innovation and to ensure that such systems are operated in the interests of end-users.5
The incidence of responsibility for misdirected electronic payments recently provoked three different reactions in the Court of Appeal in response to a relatively straightforward, and not uncommon, fraud. More remarkably, none of the three opinions quite corresponds with the correct analysis of the problem. The scenario is this. A firm receives a communication, apparently from one of its creditors, that its banking details have changed. If this is not properly verified, and a payment is made to the account details provided in the fraudulent communication, the funds transferred will vanish almost immediately. The fraud is facilitated by an apparent banking practice in respect of CHAPS whereby the payor bank invites customers to include in their instructions at least three elements of

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