Identifying a duty of care in tort is not easy. The Court of Appeal has said that there is currently no single test for this duty but it is customary to enquire whether:

  • the defendant assumed responsibility to the claimant;
  • loss was a foreseeable consequence of the defen- dant’s actions or inactions, the parties’ relationship was sufficiently proximate and it is fair just and reasonable to impose a duty of care; and
  • the addition to existing categories of duty is incre- mental rather than indefinable.

These enquiries usually lead to the same answer and can be used as cross-checks on one another.

A bank was asked to provide a financial reference in respect of a customer. The request came from Burlington, a company acting for a casino operator, but the true purpose of the reference (for a gambling club) was not revealed. The casino operator used Burlington to ask for references so as “to preserve confidentiality for customers”. The reference provided said the customer was trustworthy up to £1.6 million per week but the customer never had any funds in his account and when the casino operator was left with losses because the customer had issued it with coun- terfeit cheques it sued the bank, claiming that the bank owed it a duty of care in giving the reference.

The Court of Appeal said there was no duty of care. It was difficult, if not impossible, to describe the bank and the casino operator as having “a special relation- ship” when the bank did not know of the casino operator’s existence and only knew that the reference was being requested on behalf of Burlington. And it was not fair, just and reasonable to impose liability on the bank because the casino operator’s standard practice was to ask for references in Burlington’s nameinstead of its own, concealing its own interest to preserve customers’ confidentiality. If the casino operator wished to remain anonymous it was hardly just and reasonable for it to assert that a duty of care was owed to it when it deliberately concealed its existence. For the same reasons there was not the necessary proximate relationship.

Playboy Club London Limited & Ors v Banca Nazionale Del Lavoro Spa [2016] EWCA Civ   457