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Queen's Bench Division, Commercial Court: Tomlinson J
Date of Judgment: 6th June, 2003
FACTS
This action arose out of the ongoing claim for misfeasance in public office being brought by BCCI depositors against the Bank of England (the Bank). The task of preparing the pleadings to establish the claim has been a complex one. This is because of the novelty and public importance of the proceedings and the considerable evidential obstacles faced by the claimants in making out their allegation that the Bank of England had engaged in misfeasance in public office in its licensing and subsequent supervision of BCCI. This ground of liability involves proving the requisite clement of 'bad faith' in the sense of particular individuals within the Banking Supervision Division of the Bank of England who had been concerned with the licensing and supervision of BCCI having acted (or having omitted to act) in the course of the Bank's dealings with BCCI with knowledge that the Bank's conduct was unlawful. Such knowledge or consciousness on the part of the relevant officials was, according to the House of Lords, akin to 'dishonesty' in the sense in which the term was used in the bad faith clement of the tort of misfeasance in public office and hence was the causal key to the claim being brought against the Bank. The Bank of England had consistently argued that this process of particularisation of allegations of dishonesty against named officials was essential and that the Bank could not be considered to have acted dishonestly 'in the round' but that named decision makers of sufficient decision-making seniority whose actions could be attributable to the Bank had to be shown to have acted dishonestly. As is common in litigation where pre-trial discovery is so protracted and complex, new evidence is flushed out all the time and pleadings or particulars of claim require amendment and re-amendment. In the last version of the pleadings lodged on 31st December, 2002 the claimants had alleged that seven named senior individuals in the Bank's Banking Supervision Division had participated in the Bank's dealings with BCCI with the knowledge that the Bank's conduct was unlawful.
ACTION
This interlocutory application, which gave rise to four days of argument was brought by the claimants...