Three Rivers District Council v Bank of England

Three Rivers District Council and Others v Governor and Company of the Bank of England was a civil action in the English High Court, filed in 1993 (Case No. 1993 Folio 1309), in which the English liquidators of the Bank of Credit and Commerce International (BCCI), the accountants Deloitte & Touche (formerly Touche Ross), together with depositors led by Three Rivers District Council, alleged that the Bank of England had committed the tort of misfeasance in public office in licensing and supervising BCCI between 1980 and 1991. It produced three House of Lords judgments on preliminary questions and became a leading English authority on the tort, before the liquidators abandoned it on November 2, 2005, the 256th day of trial.¹²

The House of Lords

The claim was not one of negligence but, as Tomlinson later put it, of "bad faith and dishonesty": the claimants pleaded that the Bank had licensed BCCI and failed to revoke its licence knowingly, or with reckless indifference, contrary to the statutory scheme and to the interests of depositors. In a judgment of May 18, 2000, the Lords set out the ingredients of the tort and held that the Bank could not be liable in damages under the First Banking Co-ordination Directive of the European Economic Community.¹ On March 22, 2001, they allowed the claimants' appeal against the striking out of the action by Mr Justice Clarke, which had been upheld by the Court of Appeal, with Lord Steyn, Lord Hope of Craighead and Lord Hutton in the majority. Lord Steyn noted that the Bank had deployed "a written case of no less than 737 pages" and said that it was "hardly a simple and obvious case for a striking out"; he emphasized that "it is indisputably the case that the Bank knew from April 1990 onwards that BCCI was in imminent danger of collapse with inevitable loss to depositors unless there was a real prospect of an effective rescue package."¹ A further House of Lords judgment on legal professional privilege in the case followed in November 2004.³

Trial and Abandonment

At trial before Mr Justice Tomlinson, the liquidators' counsel, Gordon Pollock QC and then Lord Neill of Bladen QC, alleged that staff of the Bank's Banking Supervision Division had acted dishonestly from about 1978 until 1991; by the close of their case "at least 42 of the Bank's officials stood accused of dishonesty, a substantial uplift on the 22 identified in the liquidators' statements of case." The Bank's counsel, Nicholas Stadlen QC, observed that keeping a tally of the accused had become "something of a parlour game."²

On September 23, 2005, according to The Times, BCCI's English Liquidation Committee, representing its largest creditors, passed "a strongly worded resolution calling on Deloittes (the liquidators) to discontinue [the action] forthwith." The liquidators instead applied to the Chancellor of the High Court, Sir Andrew Morritt, who after three days of argument held "that it was no longer in the best interests of the creditors for the litigation to continue" and directed that the action be discontinued. On November 2, 2005, Pollock told the court that his side had "no more instructions" and asked the judge to rise "so that we may clear our stuff away and leave." Tomlinson later called it "extraordinary litigation which came to an abrupt albeit long overdue conclusion in unusual circumstances."²

Costs

On April 12, 2006, Tomlinson ordered the liquidators to pay the Bank's costs on the indemnity basis, finding that the Bank's entitlement "could not be more clearly made out." He found that an allegation that the Bank's commissioning of the Section 41 report in March 1991, the Sandstorm Report, was a dishonest cover-up had been "unsupported by any evidence," and criticized the liquidators for failing, after the discontinuance, to apologize or withdraw their allegations of dishonesty. The judgment records that the liquidators had earlier brought other major actions, "notably against the auditors and Bank of America."²