UK Trends and Developments Contributed by: Phillip D’Costa, Richard Marshall, Sophie Newman and Harriet Campbell, Penningtons Manches Cooper LLP
Liability in Misrepresentation – No Need For Conscious Awareness A key requirement for bringing a claim in misrepresen - tation or deceit was, until recently, that a conscious, contemporaneous awareness and understanding of the representation must be proven. This meant, in simple terms, that the person being deceived or defrauded had to have been aware of the deception at the relevant time. They could not simply “assume”, for example, that a bank was acting honestly when setting interest rates. Historically, for this reason, group claimants have struggled to successfully bring securities claims against UK issuers where the claimants were “passive investors” or tracker funds. Typically, such claimants are unable to show that they had actively relied upon statements made in published information before investing. Instead, claims are often framed around col - lective or institutional decisions, or where the claim is based on the typical behaviour of the market or standard market practices. However, in November 2025, the Privy Council in Credit Suisse Life (Bermuda) Ltd v Bidzina Ivanishvili & Ors [2025] UKPC 53 ruled that no such conscious awareness or understanding is required. This is likely to have a significant impact on claims for deceit, mak - ing it easier for claimants to establish liability. Although not strictly binding precedent in England and Wales, this Privy Council decision is likely to be persuasive authority. While the impact of this decision will be felt particu - larly in securities and structured finance disputes, we anticipate seeing commercial claimants advanc - ing more claims formulated in the tort of deceit, par - ticularly in group mis-selling claims, where claimants often rely on implied representations or assumptions. Worldwide Freezing Orders – How Far Do They Travel? As fraudsters move ever faster, funds are dissipated across the world and into offshore entities or cryp - to exchanges at pace. In response, lawyers have deployed interim remedies such as worldwide freez - ing orders and proprietary injunctions, claims against “persons unknown”, as well as targeted disclosure
scams originate online. It remains to be seen whether the approach adopted in the EU will be implement - ed in the UK. For now, financial institutions need to remain vigilant not only for agentic AI attacks but also to remain compliant (increasingly through the appro - priate use of AI) with their own suspicious activity reporting. The Supreme Court’s decision in Philipp v Barclays Bank UK PLC [2023] UKSC 25 that banks are not lia - ble when their customer personally authorises a pay - ment to a fraudster (known as authorised push pay - ment, or APP fraud), significantly reduced the scope of consumer claims against banks. In its place, since October 2024, banks and payment service provid - ers have been required to reimburse victims, subject to certain parameters, under mandatory reimburse - ment rules. While this represents a significant step forward for some consumers, it does not extend to cases where the money is diverted internationally (a frequent occurrence) or for losses over GBP85,000. As a result, claimants have tested the scope for pursu - ing claims against banks based on a “retrieval duty”. This refers to the possible duty owed by banks to seek their customers’ instructions to recover monies paid out pursuant to APP fraud once they know that the payment was induced by fraud. It requires the bank to exercise reasonable skill and care in carrying out its contractual obligations to its customers. While the court confirmed in Santander UK plc v CCP Graduate School Ltd [2025] EWHC 667 (KB) that a “receiving bank” does not owe a “retrieval duty”, it is possible that a retrieval duty may be owed by the “sending bank”. Banks’ Liability: APP Fraud, Mandatory Reimbursement and the “Retrieval Duty” In Dawn Barclay-Ross v Starling Bank Limited [2025] EWHC 2158 (KB), the court refused to strike out a claim against a sending bank for the “loss of chance” of recovering the monies. This case opened the door to the potential for such a duty to exist. Unfortunately, as the claimant discontinued their claim it remains to be seen whether that door will remain open.
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