Primary and secondary rights in the Quincecare litigation arena: another dimension of the debt versus damages debate

Private law remedies correspond to the nature of the primary right breached. Within the Quincecare litigation arena this uncontroversial proposition forces a needed – and potentially uncomfortable – inquiry: is the claimant customer (the principal) asserting a: (i) primary right to be paid the account balance exclusive of any unauthorised debiting by the defendant bank (in accordance with the customer’s agent’s instructions); or (ii) a secondary right arising upon negligent execution of a valid mandate? This article proposes that the two claims occupy distinct realms as they aim to protect distinct primary duties. A claim in debt vindicates the customer’s primary right to performance of the mandate which entitles the customer not to have the account’s balance diminished by a debit without authority. Contrastingly a claim in damages for breach of the Quincecare duty compensates for the customer’s right to have the bank’s payment services carried out...