#6626 - Bartlett V. Barclays Bank - Commercial Remedies BCL

Bartlett v. Barclays Bank

Facts

Sir Herbert Bartlett made a settlement for the benefit of his wife and issue, the settled property consisting of debenture stock and 498 (later 499) shares in Bartlett Trust Ltd. (BTL) which had been incorporated in the previous May to manage properties owned by Sir Herbert and his wife. The trustee was Barclays Bank Ltd.

The affairs of the trust were conducted at the City office of the bank's trustee department. The board of BTL held regular monthly meetings which were meticulously minuted. During 1960 money had to be raised for death duties and the board was asked to examine the possibility of the introduction of BTL's shares and debentures on to the Stock Exchange. At the same time Mr. Roberts suggested that investments should be made in more risky properties yielding 10 per cent. instead of the 6 per cent. obtained for more steady types of property. The board re-stated its investment policy to dispose of leasehold properties in favour of freehold. Messrs. Reed Hurst & Brown, stockbrokers, advised that the shares of the company would be more attractive if the company had a development aspect, and when the board so informed Mr. Mahony he said that the bank would give that favourable consideration provided the life tenants were not left short of income during the development period.

From then on Mr. Roberts introduced a number of development projects which he considered would bring benefit to the trust estate, but divulged to the bank at the annual general meetings only such small items of information as he thought appropriate, and without consulting them. Towards the end of 1962 Mr. Roberts and the board embarked on a development known as the Old Bailey Scheme which caused the damage to the trust.

The only reason given to the bank for BTL's entering into development projects had been that it would assist a public issue - but, on the basis that there was to be no public issue, the bank did not question the need for development projects.

In August 1977 a writ was issued against Barclays Bank Trust Co. Ltd., the plaintiffs being Sir Basil Bartlett and six other grandchildren of the original settlor. The plaintiffs claimed that the defendant trustee was liable to make good to the trust fund all loss accruing by reason of it having permitted BTL and BTH to engage in property development, and they sought inquiries to establish their loss.

The plaintiff’s claim was that the bank, had it acted in time, could by reason of its shareholding have stopped the board of BTL embarking upon the Old Bailey project; and, had it acted in time, could have stopped the board of BTL and later the board of BTH (it is unnecessary to differentiate) from continuing with the project.

Holding

Bank acted in breach of duties

In my judgment the bank wrongfully and in breach of trust neglected to ensure that it received an adequate flow of information concerning the intentions and activities of the boards of BTL and BTH. It was not proper for the bank to confine itself to the receipt of the annual balance sheet and profit and loss account, detailed annual financial statements and the chairman's report and statement, and to attendance at the annual general meetings and the luncheons that followed, which were the limits of the bank's regular sources of information.

Causation

I hold that the bank failed in its duty whether it is judged by the standard of the prudent man of business or of the skilled trust corporation. The bank's breach of duty caused the loss which was suffered by the trust estate. If the bank had intervened as it could and should have that loss would not have been incurred.

Loss Suffered

By "loss," I mean the depreciation which took place in the market value of the BT shares, by comparison with the value which the shares would have commanded if the loss on the Old Bailey project had not been incurred, and reduction of dividends through loss of income.

Defendant’s argument on Taxation

The defendant says that the sum payable to each plaintiff under order no. 1 is not, or may not, be taxable in his or her hands. If free from taxation, the compensation payable should not exceed the net amount which the plaintiff would have been left with after taxation had the relevant losses not been made by the company and had larger dividends accordingly been declared. The form of order sought by the defendant would require the court to decide at some time during the inquiries, as between the plaintiffs and the defendant, whether any and, if so, what tax could properly be demanded by the revenue from the plaintiffs on sums yet to be assessed.

Rejected:

Consideration of this problem is complicated by the fact that the claims in this case are not and cannot be...