Alexandra Kosta-Foti

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 with reasonable skill and care and thus concerns the manner in which the execution of the payment instruction has occurred. A reconsideration of these two distinct duties can assist claimants in carefully characterising their claims in light of the limited scope of the Quincecare duty’s application post-Phillip.