McCarthy Ltd v ABSA Bank Ltd (511/08) [2009] ZASCA 118; 2010 (2) SA 321 (SCA) ; [2010] 1 All SA 435 (SCA) (25 September 2009)

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[2009] ZASCA 118
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McCarthy Ltd v ABSA Bank Ltd (511/08) [2009] ZASCA 118; 2010 (2) SA 321 (SCA) ; [2010] 1 All SA 435 (SCA) (25 September 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 511/08
In the matter between :
McCARTHY LIMITED
Appellant
and
ABSA BANK LIMITED Respondent
Neutral citation:
McCarthy
v ABSA
(511/08)
[2009] ZASCA 118
(25 September 2009)
Coram: NUGENT, LEWIS, VAN
HEERDEN JJA, LEACH and TSHIQI AJJA
Heard: 31 AUGUST 2009
Delivered:
25
SEPTEMBER 2009
Summary: Banker – claim
against by drawer for negligent payment of cheques – knowledge
acquired in course of collecting the
cheques for another customer –
court might find that such knowledge should have put bank on enquiry
– absolution at end of
plaintiff’s case should have been refused.
ORDER
On appeal from: South Gauteng High Court (Goldstein J
sitting as court of first instance)
The appeal is upheld with costs that include the costs
of two counsel. The order of the court below is set aside and the
following
order is substituted:
‘
The application for absolution from the instance is
refused. The costs occasioned by the application are costs in the
cause.’
JUDGMENT
NUGENT JA (LEWIS, VAN HEERDEN JJA, LEACH and TSHIQI AJJA
concurring)
[1] This appeal arises from an action brought by the
appellant (McCarthy) against the respondent (Absa) in the South
Gauteng High
Court. At the close of McCarthy’s case the court below
(Goldstein J) absolved Absa from the instance.
1
McCarthy appeals against that order with the leave of that court.
[2] The identities of both parties have altered over the
years but that is not material for present purposes and I will refer
to
them as they were known at the time of the action. McCarthy is a
trader in motor vehicles and Absa is a commercial bank. For some

years McCarthy operated a cheque account at the Pretoria branch of
Absa.
[3] Absa’s customers also included Mr Fourie, who
operated a cheque account, initially at its Pretorius Street branch,
and later,
when that branch closed in 2001, at the Pretoria branch.
Mr Fourie was a man of modest means, and that was reflected in the
ordinary
transactions on his account. They were largely confined,
while he was in employment, to the monthly deposit of his salary to
the
account, and the withdrawal in cash of an equivalent amount. Once
he retired it was confined to the monthly deposit, and the withdrawal

in cash, of his pension.
[4] Between November 1994 and March 2003, however, the
account of Mr Fourie was used repeatedly for the perpetration of
fraud. The
person responsible for the fraud was Ms Cordier, a former
employee of McCarthy, who now resides in Kroonstad prison. Ms Cordier

was employed as a creditors’ reconciliation clerk. From time to
time over the period I have mentioned she created fictitious
debts in
the accounts of McCarthy and caused cheques to be drawn and signed by
authorised signatories of McCarthy in purported
payment of those
fictitious debts. The named payee on each of the cheques was a
combination, in one way or another, of the name
‘Fourie’ or ‘L
Fourie’ and the name ‘Leathertech’ or ‘Leathertech CC’
2
(Leathertek was the name of a firm with which McCarthy conducted
business). The cheques were crossed and marked ‘not transferable’.
[5] Ms Cordier was acquainted with Mr and Mrs Fourie. On
an occasion in about November 1994 she approached Mrs Fourie and
asked
her to deposit to the Fourie’s bank account the first of the
cheques that I have referred to. According to Mrs Fourie she was
told
by Ms Cordier that the cheque was in payment of commissions that Ms
Cordier had earned, and she was given an explanation by
Ms Cordier
for why she preferred not to collect the cheque through her own
account.
[6] Mrs Fourie obliged. She approached the teller at the
branch at which the Fourie account was held (at that stage the
Pretorius
Street branch) armed with the cheque, a deposit slip, and a
bearer cheque drawn on the Fourie account for an equivalent amount
(less a small amount that was to be left in the account to cover bank
charges). The teller referred her to a supervisor to approve
the
transaction. The supervisor marked the documents to reflect her
approval and Mrs Fourie returned to the teller, who accepted
the
deposit of the McCarthy cheque, and paid over the amount of the
cheque that had been drawn on the Fourie account.
[7] There followed a series of like transactions, once
or twice a month, each of which followed the same pattern. Mrs Fourie
would
arrive at the bank, obtain the approval of a supervisor (in
many cases the same supervisor) for the transaction, present the
documents
to the teller, and walk off with a substantial sum in cash,
at times as much as R100 000 or more. She would generally receive a

‘little something’ from Ms Cordier for her trouble. By the time
the fraud was discovered 193 fraudulent cheques had been deposited

amounting in all to R14 947 258.
[8] McCarthy sued Absa in contract for recovery of the
moneys it had lost. An alternative claim was framed in delict but
that claim
was subsequently abandoned.
[9] In its particulars of claim McCarthy alleged that an
agreement – either express or tacit – existed between it and Absa
for
the conduct of the account, which included, amongst others, the
following terms:
‘The defendant was obliged to exercise the standard of care
reasonably expected of a banker when disbursing amounts on the
authority
of the plaintiff, including taking reasonable steps:
to ensure that the recipient of the proceeds of the cheques
purportedly drawn by the plaintiff was entitled thereto;
to institute enquiries into the title of any person claiming the
proceeds (“the claimant”) whenever a prudent banker would
do so
having regard to:
the identity of the claimant;
other facts known to the defendant in regard to the claimant;
the amount of the cheque;
or any other fact which could reasonably raise suspicion.’
[10] It went on to allege the following:
‘8. The defendant breached the account agreements when it collected
each of the McCarthy cheques and debited its amount to the
McCarthy
account, in one or more of the following respects:
8.1 it failed to take reasonable care to ensure that Fourie was
entitled to receipt of the payment;
it collected the McCarthy cheques on behalf of Fourie
notwithstanding that he was not the named payee and notwithstanding
the "not transferable" crossing upon them;
it collected the McCarthy cheques on behalf of Fourie
notwithstanding that he did not carry on business under the name
Leather
Tek and had no association with that entity or another
entity bearing that name;
it failed to react to the following suspicious features of the
scheme, and to enquire further into Fourie's entitlement to
the
McCarthy cheques:
8.4.1 the amounts of the McCarthy cheques vastly exceeded Fourie's
own income as a pensioner;
the amounts of the cheques were disproportionate to Fourie's
previous account history and the manner in which he otherwise

conducted his account;
each cheque identified the payee in terms … which coupled
Fourie's name with that of a trading entity with which he had
no
known association;
each cheque was always followed by a withdrawal of an amount
nearly equal to it in cash using the relevant Fourie cheque.’
[11] McCarthy alleged that but for the breaches the
fraudulent scheme would have been detected and payment prevented. It
claimed
damages for breach of the agreement in the sum of
R14 947 258.
[12] McCarthy led the evidence of three witnesses. One
of those witnesses was Mr Bentley, who gave expert evidence
concerning banking
practice, and in particular, as to why the
transactions ought to have raised suspicion. Much of the
cross-examination of Mr Bentley
was directed towards eliciting
concessions that the teller who accepted the cheques for collection
(and the supervisor who authorised
the transactions) was carrying out
a ‘collecting function’ (on behalf of Fourie) and not a ‘paying
function’ (on behalf
of McCarthy).
[13] The basis of the application for absolution was a
submission on behalf of Absa that the claim was dependent for its
success
upon it being found that it was an implied term of any
agreement that might have existed between Absa and McCarthy that Absa
would
not act negligently in collecting cheques that it had drawn,
and the court below dealt with it on that basis.
[14] The court below considered first whether the
evidence established an agreement between the parties at all.
Observing that ‘in
its particulars of claim [McCarthy] pleads a
written agreement … between it and the defendant’s predecessor’
it found that
‘[McCarthy] led no evidence on the agreement pleaded,
and thus failed to establish any of the express terms relied upon.’
It
then went on as follows:
‘The plaintiff's counsel contended, however, that on a proper
construction of the pleadings and pre-trial procedure, the plaintiff

has in fact pleaded a tacit contract between it and the defendant in
terms of which the defendant became the plaintiff's bank.
I disagree
with this contention, but in case I err in this regard, I proceed to
deal with the application for absolution on the
interpretation
contended for by plaintiff's counsel. There is another reason why it
is proper that I do so. This morning counsel
for the plaintiff, after
argument had been concluded, placed before me an application for the
amendment of the particulars of claim,
to exclude, if I understand
correctly, all references in the pleadings to an express contract
regarding the banking relationship
between the parties. I find it
unnecessary to consider the application, because of my view that even
if it were granted, absolution
must follow, for the following
reasons.’
[15] On that basis the court proceeded to consider
whether an agreement between a bank and a customer for the conduct of
a cheque
account could be said to include an implied or tacit term to
the effect that the bank ‘would fulfil the collecting function [in

relation to cheques drawn by its customer] without negligence
vis-à-vis [the drawer customer].’ It found that a term to

that effect was not implied in such an agreement and on that ground
it granted absolution.
[16] Given the terms in which the question was framed
that finding by the court below cannot be faulted. An agreement
between a
bank and its customer for the operation of a cheque account
is an agreement of mandate that imposes, as naturalia of the
agreement,
two obligations on the bank (there may be other terms that
are expressly agreed but that is not now material). First, it
undertakes,
on behalf of its customer, to pay from the account
cheques properly drawn by the customer, according to their tenor
(provided funds
are available in the account). And secondly, it
undertakes, on behalf of the customer, to collect cheques properly
deposited for
collection.
3
It clearly has no obligation to collect, on behalf of someone else,
cheques that are drawn by the customer (and to do so without

negligence).
[17] But I do not think that is where the matter ends.
At the outset it needs to be borne in mind that the collection and
the payment
of a cheque are two sides of one coin and the
transactions occur simultaneously. (I am not referring to the
acceptance of the cheque
for collection, which occurs when the cheque
is deposited, but to the collection of the proceeds of the cheque,
which occurs when
the cheque is paid.) In this case Absa both
collected the cheque on behalf of Fourie, and simultaneously paid it
on behalf of McCarthy.
Considerable confusion has been introduced
into this case by the use of those terms, in the particulars of claim
and in the heads
of argument filed on behalf of McCarthy, as if they
are interchangeable, which they are not. But once that is cleared up
I do not
think that it is correct that the claim, properly construed,
was founded upon an implied term to the effect that I have mentioned.
[18] As appears from the extract from the particulars of
claim that I have recited, McCarthy’s case on the pleadings was
that
Absa was contractually obliged to exercise the care to be
expected of a reasonable banker ‘
when
disbursing amounts’
on the authority of its
customer. The ‘disbursement of amounts’ from a cheque account
occurs when the bank pays a cheque that
is drawn on the account.
(That the bank simultaneously collects the proceeds to the account of
another customer is coincidental.)
The remainder of that paragraph
does no more than allege what is to be expected of a reasonable
banker when performing its mandate
to pay its customer’s cheques.
[19] The formulation of the alleged breaches in
paragraph 8, particularly in paragraphs 8.2 and 8.3, reflect some of
the confusion
I have referred to, but I do not see that they alter
the foundation of the claim. What that paragraph was meant to convey
seems
to me to have been clarified when counsel for McCarthy opened
its case, in the course of which he said, variously, the following:
‘The contractual claim is based on the allegations that the
defendant breached the bank and client contract … by negligently

paying the proceeds of the cheques.
‘The proceeds were collected for Mr Fourie and the negligence in
collecting forms part of the negligence in paying the cheques.’
‘As is explained in some more detail below, the contractual claim
is based on the bank and client contract that existed between
the
plaintiff and the defendant. The thrust of the bank and customer
relationship, insofar as cheques are concerned, is that
a bank may,
in terms of common law, debit its customer's account with the amount
of a cheque paid only if the bank made payment
without negligence
and bona fide.’
‘The defendant acted as both collecting and paying bank. What he
did and knew when performing its collection function, it knew
when
it paid the cheques. When its representative at the Pretorius Street
branch looked at the cheques, she learnt certain facts
– these
facts became part of the defendant’s corporate knowledge and was
part of what it knew when it “paid” the cheques.
… Negligence
in collection, is negligence in paying in this matter.’
‘When a bank pays its client’s cheques it performs its
obligations in terms of an overall mandate that the client gave the

bank to do so. One of the naturalia of a contract of mandate is that
the mandatory (the bank) may only claim his expenses if
he performed
the mandate without negligence. Malan puts the matter thus:
“The obligations of bank and customer concerning the drawing and
payment of cheques can be express but are mostly implied terms
of the
contract ... In paying cheques the bank must adhere strictly to the
customer's instructions, and must perform its duties
with the
required degree of care, generally, in good faith and without
negligence.”
‘On the other hand, the bank may not pay cheques negligently. ...
The duty not to act negligently and the duty to act bona
fide to
entitle a bank to debit a customer's account with the amount of a
cheque are incorporated into each bank and customer
contract.’
‘The plaintiff contends ... that the agreement between the parties
contains the provision that the bank may not act negligently
when it
makes payment against the plaintiff's account.’
‘The unquestionable negligence that occurred when the defendant
collected the cheques must be taken into account when the
defendant's conduct in paying each cheque is concerned. The
plaintiff's argument in this respect is this:
What the defendant learned of the circumstances when it collected the
cheques, it knew when it paid the cheques.
The defendant knew that ... in all probability [a fraud was being]
committed and that its client, the plaintiff, was the probable
victim
of the fraud and the fraud would be completed once the cheques were
paid.
It is wholly artificial and wrong in fact and law to distinguish
between the collection and payment of cheques in the circumstances.
The defendant would consequently not be not negligent when it paid
the cheques.’
‘We submit that in the present case the circumstances were such
that any reasonable cashier would not have paid out the cheques.
It
must be remembered that the defendant bank converted the cheques
into cash for Mrs Fourie and that it was tantamount to the
defendant
paying the plaintiff's cheque out in cash. It is submitted that the
payment of the cheques was clearly effected negligently
and not bona
fide. There is thus no answer to the contractual claim.’
[20] Upon a fair reading of the particulars of claim,
stripped of the terminological inaccuracies, as elaborated upon in
counsel’s
opening, the claim that was advanced by McCarthy was that
Absa breached its mandate to exercise reasonable care when paying
McCarthy’s
cheques. The references to collection seem to me to
convey only that counsel failed to distinguish the two sides of the
coin. In
the circumstances I think that the application for
absolution and the judgment of the court were misdirected. I might
add that
to the extent that Absa might have been misled in the
conduct of its case by the confusion that was introduced (although it
is
not evident that that has occurred) the exercise by the trial
court of its discretion to allow the evidence to be revisited is
capable of avoiding injustice.
[21] It is trite that the test to be applied by a court
when absolution is sought at the end of the plaintiff's case is
whether
there is evidence upon which a reasonable person might (not
should) find for the plaintiff.
4
[22] The fact alone that McCarthy had a cheque account
justifies the inference that an express agreement (not necessarily
reduced
to writing) was concluded between McCarthy and Absa (or their
predecessors) at some time in the past that such an account should
be
operated (it is difficult to see how a bank account might otherwise
come into existence). Where such an agreement exists, as
pointed out
by the authors of
Malan on Bills of Exchange
etc
:
5
‘It is the duty of the bank to pay cheques drawn by the customer
that are in all respects genuine and complete, on demand, provided

sufficient funds or credit for their payment are available in the
customer’s account. … In paying cheques, the bank must adhere

strictly to the customer’s instructions, and must perform its
duties with the required degree of care, generally, in good faith
and
without negligence.’
[23] It is not alleged by McCarthy that Absa paid the
cheques contrary to their terms. On the contrary, its counsel
submitted before
us that the named payee was fictitious, and that
Absa was thus entitled to pay the bearer.
6
The thrust of McCarthy’s case was that Absa paid the cheques
negligently, in that it ought at least to have suspected that the

bearer (Fourie) was not entitled to the cheques, and should thus have
made enquiry before they were paid.
[24] Counsel for Absa conceded for purposes of this
appeal
7
that Absa’s employees – the tellers and supervisors I have
referred to – ought to have suspected that Fourie was not entitled

to the cheques, and thus that they were negligent in having accepted
them for collection.
8
But it argues that such negligence was in its ‘collecting capacity’
on behalf of Fourie and not in its ‘paying capacity’
on behalf of
McCarthy (hence the misdirected enquiry as to whether the bank was
contractually bound to exercise reasonable care
when performing that
collecting function). But the true enquiry is not whether the bank is
liable for negligence in collecting
the cheques, but instead whether,
in view of the knowledge of its employees (albeit that it was
acquired in the course of accepting
the cheques for collection), the
bank was negligent in paying them (at least without further enquiry).
[25] Where the paying bank is not the collecting bank
difficulties of that kind do not arise, because the paying bank will
generally
not be capable of knowing to whom the cheque is being paid.
Hence the protection that is afforded to a paying bank against the
risk of paying a cheque in conflict with its terms – so far as
crossed cheques are concerned – by s 79 of the Bills of

Exchange Act. That section provides as follows:
‘If the bank on which a crossed cheque is drawn, in good faith and
without negligence pays it, if crossed generally, to a bank
... the
bank paying the cheque ... shall ... be entitled to the same rights
and be placed in the same position as if payment of
the cheque had
been made to the true owner thereof.’
[26] But where the bank that is collecting a crossed
cheque is also the paying bank, as Absa was in this case, the bank
will indeed
know (or at least be capable of knowing) whom it is
paying, because the drawer and the holder of the account to which the
cheque
is paid are both its customers.
[27] However it has been suggested by this court in the
context of s 79 – resonating with some of the submissions that
were
made in this case – that a bank might be negligent in one
capacity (its collecting capacity) while not being negligent in
another
capacity (its paying capacity). While s 79 is not now
directly material, nonetheless, if that is correct, it might lend
weight
to Absa’s submission that its negligence in collecting the
cheques is to be isolated from its conduct in paying them.
[28] That suggestion followed upon the finding by this
court, in
Eskom v First National Bank of
Southern Africa Ltd
,
9
that s 79 is applicable as much when the collecting bank is also
the paying bank, as when they are different banks. But the
protection
that is afforded to a bank by s 79 against the consequences of
paying a cheque otherwise than in accordance with
its terms is
conditional upon the payment being paid in good faith and without
negligence. It was in the course of considering
how that might apply
when one bank was both the collector and the payer that Brand JA said
the following in
Standard Bank of SA Ltd v
Harris:
10
‘The contention by Du Toit’s counsel that one entity cannot
simultaneously be both negligent and not negligent is true but

inapposite. The transaction of collecting and paying a cheque
involves a number of steps and legal acts. Where all the steps were

performed by the same entity, I can see no conceptual difficulty in
accepting that the entity is not negligent in performing some
of the
steps but negligent in performing others. This being so, and once it
is recognised that one bank can fulfill the functions
of both
collecting bank and paying bank with regard to the same cheque, there
seems to be no difficulty in accepting that the bank
can be negligent
in the performance of its collecting functions but act without
negligence in the performance of its functions
as a paying bank.’
[29]
Eskom
was
decided on exception and the court was not called upon to consider
how s 79 might find application in practice. Nor was the
court called
upon to do so in
Standard Bank.
[30] While it might indeed be conceptually possible for
a bank to be negligent when it collects a cheque, but not negligent
when
it pays the cheque, I confess that I have some difficulty
envisaging how that might occur. For the question whether a bank is
negligent
will generally depend on what was known to the bank when it
performed the particular transaction, and that would suggest that a

bank might have knowledge while wearing one hat, but cease to have
that knowledge when it dons the other hat. It seems to me that
once
knowledge is acquired then it is known whatever hat the person is
wearing. But in any event there is certainly no suggestion
in
Standard Bank
that the
two functions will always be kept apart when considering whether a
bank was negligent.
[31] Counsel for McCarthy referred us to a decision of
the Supreme Court of Victoria –
Nemur Varity
Pty Ltd v National Australia Bank Limited
11
– in which the conduct of a bank in the course of accepting a
cheque for collection was indeed attributed to the bank when deciding

whether it had been negligent in paying the cheque. On that issue
Ashley J said the following (the plaintiff was the drawer of
the
cheques):
‘141 In the present case I am well satisfied that in the case of
each … cheque the bank was in breach of the duty [to exercise
such
care and skill as would be exercised by a reasonable banker]. It was
not suggested by counsel for the [bank] that the circumstances
known
to the bank by reason of the fact that it was the collecting bank, or
its conduct as collecting bank, should be excluded
when considering
whether it was in breach of the duty of care which it owed the
plaintiff as its customer; although he did submit
that it would go
too far to say that in every case a paying bank should enquire of its
customer as to the intended destination
of a cheque. The
qualification may readily be accepted, without impacting upon the
significance of the circumstances of the bank's
conduct in collecting
the cheques in the present case.’
[32] I should not be understood to express any view on
the correctness or otherwise of the approach that was taken in that
case.
It ought to be borne in mind that, as appears from the extract,
the question with which we are now concerned was not the subject
of
argument. Moreover, the bank sought to revive the issue on appeal,
but was not permitted to do so, and thus no opinion was expressed
by
the court of appeal.
12
I mention the case only to indicate that it cannot be taken to be
self-evident that the conduct of a bank in the course of collecting
a
cheque is to be left out of account when deciding whether the bank
paid the cheque negligently.
[33] Whether or not Absa was negligent is ultimately a
question to be decided with reference to the facts of the particular
case.
We are not called upon in this case to answer any of the
questions I have touched on and it would be undesirable to express
any
firm view on those issues. We must accept for present purposes
that employees of the bank were possessed of knowledge that should

have led them to suspect that Fourie might not be entitled to the
cheques. We must also accept that they knew that the cheques
had been
drawn by their customer McCarthy who would have to pay them.
Naturally, there are other facts that emerge from the evidence,
not
least of which is that no query was raised by McCarthy once the first
cheques had been paid, that need to be placed in the
matrix. No doubt
there might also be generally accepted practices of which we are not
yet aware that would demonstrate why that
knowledge ought not to be
attributed to the bank when it paid the cheques. At this stage of the
proceedings I think it is sufficient
to say, without elaboration,
that on the evidence that has been presented thus far, in my view a
court might indeed find that Absa
ought to have made further enquiry
before it paid the cheques, and that its failure to do so was
negligent.
[34] Whether any such negligence was causally connected
to the loss, and whether any causally connected loss extended to all
of
the cheques, were not matters raised in this appeal, and I express
no view in that regard, beyond saying that a court might find
that at
least some loss was caused. In those circumstances absolution ought
not to have been granted and the appeal must succeed.
[35] The appeal is upheld with costs that include the
costs of two counsel. The order of the court below is set aside and
the following
order is substituted:
‘
The application for absolution from the instance is
refused. The costs occasioned by the application are costs in the
cause.’
__________________
R
W NUGENT
JUDGE
OF APPEAL
A
ppearances
:
For
Appellant: P F Louw SC
D
Turner
Instructed
by
Knowles
Husain Lindsay Inc, Sandton
McIntyre
& Van der Post, Bloemfontein
For
Respondent: A Gautschi SC
L
Grenfell
Instructed
by
Lowndes
Dlamini Attorneys, Sandton
Matsepes
Inc, Bloemfontein
1
Reported as
McCarthy Ltd v Absa Bank Ltd
2009 (2) SA 398
(W).
2
One some occasions it is spelt ‘Leathertek’ or ‘Leathertek
CC’.
3
Malan on Bills of Exchange, Cheques and Promissory Notes in
South African Law
5 ed by F R Malan, J T
Pretorius and S F du Toit para 217.
4
Herbstein and Van Winsen: The Civil Practice of the Supreme Court
of South Africa
4 ed by The Late Louis de Villiers van Winsen,
Andries Charl Cilliers and Cheryl Loots ed by Mervyn Dendy pp.
681-3.
5
Cited above, para 217.
6
Section 5(3) of the Bills of Exchange Act 34 of 1964.
7
I stress that the concession was made only for the purpose of
argument and does not bind Absa in further proceedings.
8
Thus exposing Absa to a claim for damages at the hands of the true
owner in accordance with the decision of this court in
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A).
9
[1994] ZASCA 186
;
1995 (2) SA 386
(A) at 397D-E.
10
2003 (2) SA 23
(SCA) para 12.
11
[1999] VSC 342.
12
National Australia Bank Ltd v Nemur Varity Pty Ltd
[2002]
VSCA 18.
Per Batt JA at para 14: ‘The second submission [by the
Bank] was that in considering whether there was a breach of duty by

the Bank as paying bank it was necessary, where, as here, the same
bank was both the paying bank and the collecting bank, to treat
each
branch as a separate entity. [Not] only had this not been put to the
judge below, as para 141 of his Honour’s reasons
makes clear, but
it was not stated, let alone specifically stated, in the grounds of
appeal and the possibility that evidence,
at least of an expert
kind, could have been led on the question cannot be excluded.’