EUPillar Banque Cantonale De Genève v Polevent Limited, Victor Azria, Enoi SpA [2015] EWHC 1968 (Comm)

Summary

The claimant was suing for unjustified enrichment. The claimant, BCGE, was a Swiss Bank. BCGE was deceived to pay over €6 million into the bank account of the defendant, Povelent, in England. It should be noted that shortly before the fraud, the defendant’s bank had been advised of a freezing order against the defendant in favour of an Italian company. BCGE advanced also a claim for restitution on the ground the money was paid by mistake. A preliminary issue arose as to which law applied to the BCGE’s claim. On 10th July 2015, the High Court held that English law must apply. In this context, Mr Justice Teare made the following analysis, holding that: “17 Article 10(1) refers to a relationship “existing between the parties”. The natural meaning of such a relationship in the context of article 10(1) is, it seems to me, one that is in existence before the facts which give rise to the claim have occurred; I note that the editors of Dicey have reached the same conclusion; see paragraph 36-031. In the present case there was no relationship in existence between BCGE and Polevent before the events which led to money being mistakenly paid into the latter’s account in London. Article 10(1) therefore does not apply. 18 It is not suggested that Article 10(2) applies. It follows that Article 10(3) must then apply and that the governing law (subject to article 10(4)) will be the law of the country in which the unjust enrichment took place. There is no dispute that the unjust enrichment took place in England. 19 It was submitted that English law was displaced pursuant to article 10(4) on the grounds that the obligation arising out of the unjust enrichment is “manifestly more closely connected” with Geneva. There is a clear connection with Geneva; that is where the instructions to make the payment were given. But there is also a clear connection with England; that is where Polevent received the payment and was unjustly enriched. I am unable to say that the obligation arising out of the unjust enrichment is “manifestly more closely connected” with Geneva. English law is therefore not displaced. 20 For these reasons I have concluded that the answer to the preliminary issue is English law. [17-20]