Supreme Court confirms no liability in tort to undisclosed principal provided with bank reference

A recent decision of the Supreme Court confirms that, where a bank reference is requested on behalf of an undisclosed principal, the bank providing the reference does not owe a duty of care to the undisclosed principal receiving it: Banca Nazionale del Lavoro SPA v Playboy Club [2018] UKSC 43.

The decision gives helpful confirmation of the circumstances in which a duty of care will be owed in relation to a statement passed on to and relied on by a third party, confirming that these circumstances do not include where the third party is an undisclosed principal of the party to whom the statement was made.

Lord Sumption, who gave the leading judgment, explained that where a party makes a statement to A which is passed on to and relied upon by B, the first party will owe a duty of care to B only if:

• it knew the statement would be communicated to and relied upon by B; and
• it was part of the statement's known purpose that it should be communicated to and relied upon by B.

Otherwise the party making the statement cannot be taken to have assumed responsibility to B. Here, as the bank had no reason to suppose that the party requesting the reference was acting for someone else, the bank did not assume any responsibility to the third party.

For more information see our Banking litigation e-bulletin on the decision.