Re Charge Card Services Ltd

Millett J held that a bank could not take a charge over its own customer's deposit with it, a view rejected by the House of Lords in Re BCCI (No 8), which held that such charge backs are possible.

Citation
[1987] Ch 401
Court
High Court (Chancery Division)
Year
1987
Subject
Banking and Finance Law
Topic
Lending, guarantees and security

Facts

Charge Card Services operated a credit card scheme, and assigned its receivables to a factoring company. When Charge Card Services went into liquidation, a question arose whether the factoring company had a valid charge over sums which it owed to Charge Card Services, in effect a charge over a debt owed by the chargee itself. Such an arrangement is known as a charge back, and was commonly used by banks to take security over their customers' deposits.

Legal principle

Millett J held that a charge in favour of a debtor over his own indebtedness to the chargor was conceptually impossible, because a person cannot have a proprietary interest in a debt owed by himself. The arrangement could take effect only as a contractual right of set off. The decision caused concern in the banking world, and was rejected by the House of Lords in Re Bank of Credit and Commerce International SA (No 8), where Lord Hoffmann held that there was no conceptual impossibility in a bank taking a charge over its customer's deposit. The Court of Appeal later dismissed an appeal on other points.

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