Suhail Al-Bitar & Anor v Byblos Bank SAL [2026] EWHC 1807 (KB)

[2026] EWHC 1807 (KB)Case No KB-2025-000505
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 th July 2026
Before
DEPUTY HIGH COURT JUDGE O'MAHONY
Between
Byblos Bank S.A.LDefendant
Daniel Lewis (instructed by Spector Constant & Williams) solicitors for First Claimant for The Second Claimant did not appear attendPhilip Hinks KC (instructed by Dechert) solicitors for DefendantHearing Hearing dates: 30 th June 2026
APPROVED JUDGMENT

DHCJ O’Mahony:

[1]This is an application by the defendant under CPR Part 11 seeking to dispute the court’s jurisdiction to hear the first claimant’s claim.[2]A similar application was made in relation to the second claimant’s claim. That application has been withdrawn. The claim by the second claimant proceeds in this jurisdiction. The Particulars of Claim state that there is no connection between the claimants and that the claims were brought together for convenience. No submissions were made on behalf of the second claimant before me. I will say no more about him or his claim.

The parties and the Claim

[3]The defendant is a Société Anonyme Libanaise formed under the laws of Lebanon. Among other things, it carries out retail banking services in that country. It has no presence in England and Wales.[4]The first claimant (who I will refer to simply as ‘the claimant’ for the purposes of this application) is resident and domiciled in England and Wales. In his witness statement, he says that he has worked as a property developer and trader since 1979 and managed a guesthouse business since 1983. His solicitors have stated that he owns two guesthouses which operate similarly to a hotel business.[5]In July 2000, the claimant opened a sterling current account with the defendant (“the bank account”). The claimant also appears to have held a United States dollar account with the defendant and a credit card account. As discussed below, there may have been a separate sterling fixed deposit account. Only the bank account is the subject of the present proceedings.[6]On 3rd January 2022 the claimant gave a written instruction to the defendant to transfer the balance in the bank account (then around £1.3 million) to a bank account at Byblos Bank Europe SA (“Byblos Europe”) in London. The defendant refused to make the payment as instructed. In the present proceedings, the claimant seeks an order that the defendant comply with that transfer instruction.

The Issue

[7]The banking contract between the parties is stated to be governed by Lebanese law and subject to an exclusive jurisdiction clause in favour of the Lebanese courts.[8]The claim is brought in this jurisdiction in reliance on section 15B Civil Jurisdiction and Judgments Act 1982 (“the 1982 Act”). It is said that the banking contract is a consumer contract within the meaning of that section.[9]The parties agreed that the narrow issue on this application is whether the claimant falls within the definition of consumer in section 15E (1) of the 1982 Act. The definition reads:
““consumer”, in relation to a consumer contract, means a person who concludes the contract for a purpose which can be regarded as being outside the person’s trade or profession;”

The Facts

[10]The account opening form signed by the claimant has the following relevant features. The section of the form for the account holder’s “Adresse du travail” has been completed. The address set out is that of one of the claimant’s guesthouses. A telephone number was also provided in that section. The telephone number matches the number on the guesthouse’s website. The section of the form for the account holder’s “Adresse du domicile” has not been completed. However, another telephone number is written in that section. The section for the account holder’s profession contains the words “Businessman-property investor”.[11]On the same day as the account opening form is dated, the claimant completed an application for a bank account with a fixed maturity period, carrying an interest rate of 6.25% pa. The original document is in French. The translator was not able to read the fixed maturity period requested, but said that it “could be 1 month”. Mr Lewis for the claimant sought to argue that this meant that the bank account the subject of the proceedings was itself a fixed deposit account from which withdrawals could not be made. This submission was made too late for the defendant to investigate it fully. However, the evidence as it was filed for the hearing, does not support that submission. The claimant himself describes the bank account as a current account. In addition, the bank statements show the balance from the bank account being regularly debited to “new deposit” and then returning with a separate interest payment before being sent again to a “new deposit”. That pattern of activity suggests a current account with a separate fixed deposit account. In any event, although the bank account does appear to have been used largely for credits, there was a cash withdrawal of £20,000 on 12th May 2017.[12]The earliest date for which bank statements are available is 20th October 2001. The balance in the bank account at that date was £37,544.82. The only activity on the bank account until 7th August 2007, was the regular placement of the balance on and off deposit, the receipt of interest and the deduction of tax on the interest.[13]On 7th August 2007 transfers began to be made into the bank account. These have been analysed by the defendant to the extent that its records permit. Its analysis may be summarised as follows: i) there were sixteen transfers into the account by Khalil Zantout, totalling £125,250. According to the currently available records, the reason for the payment in is only available for three of these transfers. The available reasons are: “Furnished apartment rent” (3rd April 2012); “Furnished apartment rent” (26th September 2012); and “Trs as per letter renting one flat from Jan 1st 2019 till 31 12 2019…” (9th January 2019); ii) there were eleven transfers into the account from Walid El Sayegh (although his name appears to be spelled slightly differently across the transfers), totalling £90,000.24. The reason for the transfer is only available for two of these transfers. The available reasons are: “Rent settlement for furnished apartment from Mr Walid Sayegh” (30th March 2015); and “Rent setlmnt of furnished apartment from Walid El Sayegh” (17th October 2016); iii) there were transfers from 19 transferors, totalling over £700,000, where, according to the available records, at least one transfer referred to “rent”, “rental”, “deposit”, “flat” or “down pyt on fshd apart”; iv) based on the above, over 83 % of the total funds transferred into the bank account appear to relate to the claimant’s property business.[14]In addition to bank transfers, there have also been deposits into the bank account in cash. These have also been analysed by the defendant based on its currently available records. The analysis may be summarised as follows: i) On 12th May 2017 there was a cash deposit of £10,000. The reason for the deposit is given as “from his work as landlord in London”. The defendant has recovered the deposit slip for this deposit and says that the signature on that slip matches that of the claimant; ii) On 12th June 2017 the claimant signed a document for the defendant headed “Authorization/Delivery of Mail”. On its face it says it is authorising the defendant to remit to “one of the following delegated person (s)…the following documents on my behalf:…d) cash and checks deposit…”. The document then says:
“The person (s) designated to collect my Mail will always present a copy of his/her ID Card. We are aware that Byblos Bank SAL Sassine will not assume any responsibility for any adverse consequences that might arise from collecting any of the documents enrolled above by the designated person and from any risks that might arise.”
The three “delegated persons”, who have also signed the document, are: Altoun Altoun Salim, Adham Atah Alrai and Edmund Dib Ackroush. The defendant’s evidence was that this document was a letter of delegation that authorised the delegated persons to deposit cash and cheques into the claimant’s bank account. I did not hear submissions as to the correct characterisation of this letter. Its precise characterisation does not matter for the purposes of the issues I have to resolve at this stage. I will refer to it for the rest of this judgment as “the letter of delegation”; iii) Also on 12th June 2017, there was a cash deposit of £9,760.80. The reason for that deposit was given as “business activity”. The defendant’s evidence is that the signature on the deposit slip for this deposit matches that of Mr Alrai on the letter of delegation; iv) On 10th April 2018 there was a cash deposit of £ 2,988. The reason for that deposit was given as “business activity income”. The defendant’s evidence is that the signature on this deposit slip also matches that of Mr Alrai; v) On 21st September 2018 there was a cash deposit of £15,936. Again, the reason given was “business activity income”. Again, the defendant says that the signature on the deposit slip matches that of Mr Alrai; vi) On 10th October 2018 there was a cash deposit of £7,470. The reason given was “Business Activity Income Business Activity in London”. Once again, the defendant says that the signature on the deposit slip matches that of Mr Alrai; vii) On 9th August 2019 there was a cash deposit of £ 20,916. The reason given was “Business Activity Income Business Revenue”. The defendant says that the signature on the deposit slip matches that of Mr Ackrouch on the letter of delegation; viii) Based on the above, at least 77.5% of the cash deposits into the bank account appear to relate to the claimant’s business.

The Law

[15]Save in one respect, the parties agreed as to the legal principles to be applied.[16]The proper approach to deciding questions of fact on an application under CPR Part 11 is set out in the judgment of Lord Sumption JSC in Goldman Sachs International v. Novo Banco SA [2018] 1 WLR 3683 at paragraph 9 and by Greene LJ in Kaefer Aislamientos SA de CV v. AMS Drilling Mexico SA [2019] 1 WLR 3514 at paragraphs 73 to 80. In Kalo v. Bankmed SAL [2023] EWHC 2606 (Comm), Foxton J (as he then was) said:
“6. Neither party suggested that the approach to be taken to the application of the special regimes now enshrined in sections 15A to 15E of the 1982 Act differed from the principles generally applied when determining whether a claim satisfies one of the recognised heads of jurisdiction (or "gateways"). This involves applying the three-part test summarised by Green LJ in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA [2019] EWCA Civ 10, [73]-[80] : a. Limb (i) of the Kaefer formulation requires the court to ask if there is an evidential basis showing that the claimant has the better argument as to the application of the gateway, the burden of proof lying on the claimant as the party seeking to invoke the court's jurisdiction. However the test is "context-specific and 'flexible'". b. Limb (ii) explains how the court is to approach that task, in a context in which evidence may well be incomplete, there has been no disclosure, and witness evidence has not been tested by cross-examination. Those forensic limitations do not of themselves prevent the court reaching a view on the relative merits. The judge is required to approach the task pragmatically and by applying common sense – for example an evidential dispute may not affect the conclusion, however decided, and it will often be possible to reach a view on the basis of the documentary record, even if there is conflicting evidence. c. Limb (iii) addresses the position where "the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument", in which context it suffices that there is a "plausible (albeit contested) evidential basis" for the application of the gateway.” a. Limb (i) of the Kaefer formulation requires the court to ask if there is an evidential basis showing that the claimant has the better argument as to the application of the gateway, the burden of proof lying on the claimant as the party seeking to invoke the court's jurisdiction. However the test is "context-specific and 'flexible'". b. Limb (ii) explains how the court is to approach that task, in a context in which evidence may well be incomplete, there has been no disclosure, and witness evidence has not been tested by cross-examination. Those forensic limitations do not of themselves prevent the court reaching a view on the relative merits. The judge is required to approach the task pragmatically and by applying common sense – for example an evidential dispute may not affect the conclusion, however decided, and it will often be possible to reach a view on the basis of the documentary record, even if there is conflicting evidence. c. Limb (iii) addresses the position where "the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument", in which context it suffices that there is a "plausible (albeit contested) evidential basis" for the application of the gateway.”
[17]Sections 15B and 15E of the 1982 Act are a restatement and retention in UK domestic law of the consumer provisions contained in Articles 17-18 of the Regulation (EU) No 1215/2012 (“the Brussels Recast Regulation”). The Court of Appeal has recently held that “it is clear beyond dispute” that sections 15A-15E were not intended to extend or expand the scope of the protections in the Brussels Recast Regulation: Soleymani v. Nifty Gateway [2023] 1 WLR 437 at paragraph 55.[18]Section 15E (2)(a) of the 1982 Act states that, in determining any question as to the meaning or effect of any provision in sections 15 A-E, a court must have regard to any relevant principles laid down by or decisions made by the European Court as to the meaning or effect of the Brussels Recast Regulation or the 1968 Convention, before 31st December 2020.[19]The following principles can be derived from the European cases.[20]In Benincasa v. Dentalkit Srl [1997] I.L.Pr 559, the European Court of

Justice said:

“[16] It follows from the foregoing that, in order to determine whether a person has the capacity of a consumer, a concept which must be strictly construed, reference must be made to the position of the person concerned in a particular contract, having regard to the nature and aim of that contract, and not to the subjective situation of the person concerned… [17]… only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. The specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character.”
[21]Where a contract has been concluded for a mixed purpose, the party wishing to rely on the fact he is a consumer must establish that the business purpose is only negligible: Gruber v. Bay Wa AG [2006] 2 WLR 205 at paragraph 46. In Milivojevic v, Raiffeisenbank [2019] I.L.Pr 28 at paragraph 94, the European Court of

Justice said:

“…a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a 'consumer' within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes…”
[22]If the court decides that on the evidence any business use was only negligible, it must go on to consider whether the person claiming to be a consumer has, by his conduct with respect to the other party, given that party the impression that he was acting for business purposes. If so, the person claiming to be a consumer will be regarded as having renounced the protection afforded by the provisions: Gruber at paragraphs 49 to 53.[23]Where services are intended to be used over a long period of time, it is necessary to consider subsequent changes in the use which is made of the services. Where a contract begins as a consumer contract:
“… a user of such services may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.”
Schrems v. Facebook Ireland Ltd [2018] 1 WLR 4343 at paragraph 38.[24]The disagreement between the parties as to the law is whether the reasoning in paragraphs 49 to 53 of Gruber can be applied to the “predominately professional” test in paragraph 38 of Schrems. Mr Hinks KC says it can. Mr Lewis says it cannot. For reasons that will become clear, I do not need to resolve that dispute. The arguments The defendant

The arguments

[25]Mr Hinks KC’s argument is straightforward. It is that the account opening form and the manner in which the bank account was used and operated demonstrate that the claimant entered into the banking contract for the purposes of his business as a property developer and trader not as a consumer. Mr Hinks KC argued that if he is wrong about that, at least the claimant does not have the better of the argument on that issue.

The claimant

[26]The claimant accepts that the monies in the bank account are derived from his business activities. However, his case is that this was a personal account used to hold his profits. He says that none of the activity on the account related to his sole trader business.

(i) The transfers into the bank account

[27]In relation to the transfers into the account, the claimant’s evidence is that none of the transferors were his clients or customers. He says that none of the explanations provided to the bank for individual transfers accurately describe the reason for the payment.[28]The claimant describes what happened as follows. He says that his United Kingdom business generated significant quantities of cash. He says that customers of Byblos Europe in London required cash. He therefore agreed to make cash available to those individuals and they then transferred the same amount into the bank account in Lebanon. He says that he had no control over the explanations those individuals gave to the bank for the transfers they were making. The claimant says that he did not receive any payment or gain from these arrangements.[29]This explanation was first provided in a letter from the claimant’s solicitors dated 23rd May 2025. In that letter, it was said that Byblos Europe in London had informed the claimant about its customers’ need for cash. It was said that the bank asked the claimant to give those individuals (whom the letter described as the claimant’s “acquaintances” but whom he did not know) cash. It described the payments as “cash that was handed over to…” the subsequent transferors.[30]In reply to queries from solicitors acting for the defendant, the claimant’s solicitors wrote again on 30th May 2025. That letter said that there were no additional relevant documents, as the requests for cash were made to the claimant orally. The solicitors said that the description of the arrangement in the 23rd May 2025 letter “mistakenly, does not read in accordance with the instructions from our client…” and sought to clarify it. The clarification was that under the arrangements, the claimant would give the cash to a Mr Fadel at Byblos Europe in London and then Byblos Europe in London would give the cash to the customer who needed it. It said that the claimant did not know the recipients.[31]Mr Fadel appears to have witnessed the original signature card for the bank account back in July 2000. He left the employment of Byblos Europe in London in 2022.[32]The claimant adopted these two letters in his witness statement. He did, however, say:
“I do not know, have never met, or seen any of the individuals who made the transfers except for Mr El Sayegh, about whom I was told by Mr Fadel”
. He went on to say that the transfers were made by Mr El-Sayegh in the same way as by the others. He said that Byblos Europe in London arranged the transfer of the funds into the bank account with the relevant individuals. (ii). The cash deposits[33]At the date of the claimant’s witness statement, the defendant had not fully investigated the cash deposits. All that appears to have been available were the bank statements and some deposit slips. In his witness statement, the claimant said that he could not recall making the cash deposits. He said that he believed they would have been made by Byblos Europe in London for two reasons: he does not carry cash to deposit into the account in Lebanon; and he has not been to Lebanon since 2017.[34]Following this explanation, the defendant investigated further. On 12th November 2025, its solicitors wrote to the claimant’s solicitors attaching the letter of delegation and asked a series of questions. The claimant’s solicitors replied on the 25th November 2025. That letter said that the claimant does not recall signing the letter of delegation. However, it went on to make the following concessions: that the claimant knew Mr Altoun Salim who is a personal acquaintance; that the claimant understands from Mr Salim that Mr Alrai and Mr Ackrouch were employees who worked with Mr Salim; and that the claimant does not deny that Mr Salim was depositing money into the bank account. The explanation given for the deposits into the bank account was that the claimant lent personal funds to Mr Salim for personal purposes, not related to his business, and that Mr Salim was repaying the loan.[35]On 4th December 2025, the defendant’s solicitors replied asking for further details, including of the loan and any documentary evidence to support the explanation. The claimant’s solicitors replied two weeks’ later. The claimant’s solicitors’ letter says that there was no agreement in writing and “no terms to the loan”. It said that there was only one loan, in the amount of £30,000 and that repayment was to be by instalments.[36]The defendant’s reply witness statement is dated 12th February 2026. By the date of that statement, the defendant had conducted further investigations into the cash payments. The evidence it had gathered in relation to those payments is set out above. (iii). An additional factual dispute[37]On 30th April 2025, the defendant’s solicitors also asked the claimant’s solicitors to explain a cash deposit of £11,921.84 on 7th December 2017, described as “Dep from Mr Moussa El-Bitar as per Mail from his work in the Transportation sector”.[38]The explanation provided in the 23rd May 2025 letter was that the purpose of the deposit was to pay the claimant back for a transfer the claimant had made to an acquaintance’s daughter who was studying abroad in England. It was said that the acquaintance lives in Damascus. The claimant said that Mr Moussa El-Bitar is a taxi driver working between Beirut and Damascus. The acquaintance gave the money to Mr Moussa El-Bitar to take to Beirut to deposit into the bank account, minus the taxi costs.[39]This explanation was slightly expanded upon in the 30th May 2025 letter. That letter gave the name of the acquaintance and his daughter. It said that “The acquaintance handed the money to the claimant’s brother in Damascus. Mr Moussa El Bitar was then instructed to deposit these in Lebanon due to difficulties faced at the time with bank transfers in and from Syria.”.[40]On 23rd January 2026, the defendant’s solicitors wrote to the claimant’s solicitors attaching an email from Mr Fadel to the defendant regarding this deposit. The email said that the claimant had approved the deposit and that “Mr Al-Bitar” was a relative of the claimant. (iv). Mr Lewis’ oral submissions[41]In his oral submissions, Mr Lewis argued that it was not necessary to decide whether the claimant’s explanations set out above are correct. He said that he could succeed in his argument on the face of the banking material itself.[42]Mr Lewis argued that the essential issue to be decided is whether the monies in the account are revenue, in which case the defendant succeeds, or profits, in which case the claimant succeeds.[43]He asked me to approach the question as to the purpose of the banking contract at two stages. First at the stage at which the account was opened in 2000 and then at the stage that the relevant transfers began to be made into it in 2007.[44]As to the first stage, Mr Lewis said that the account opening documents do not show that the bank account was opened as a business account. He said, nowhere do they say that. Mr Lewis argued that the facts that the claimant may have given his business address for convenience or answered the common banking question as to his profession do not bear the weight that Mr Hinks KC sought to place on them. Mr Lewis argued that the account appeared to be used simply as a sort of savings account for the single initial deposit between 2000 and 2007. There was, he said, nothing to say that this was anything other than a consumer account up until 2007.[45]Mr Lewis then argued that if I was with him on his submissions as to stage one, the question at the second stage was whether the purpose of the account became predominantly professional, see Schrems, above.[46]He said that I could not be satisfied that the account had become predominantly professional. He said that the account was only ever used to receive money. This showed that what was in the account were clear profits. There were no payments out for business purposes as one would expect if this was a business account. Mr Lewis pointed to the fact that the account was in Lebanon but the claimant’s business was in London. This, Mr Lewis said, was more consistent with the account being held offshore for a rainy day rather than for business purposes in this country. Finally, Mr Lewis relied on the fact that the payments into the account were not regular, as undermining the assertion that they were payments relating to a rental business.

Discussion

[47]I do not accept that I can avoid forming a view as to the credibility of the claimant’s account of the circumstances in which the payments came to be made into the bank account. The claimant is asserting that the courts of England and Wales have jurisdiction to hear his claim on the basis that he concluded the banking contract for a purpose outside his business or profession. To support that assertion, he has provided a factual account of how the bank account operated in practice which seeks to explain what appears on the face of the banking records. Whether or not the claimant’s factual account is credible is therefore an important question in seeking to resolve the issue I have to decide. It follows that it is necessary as a first step, to decide whether the claimant’s factual account is sufficiently cogent that he has “the better argument” as to what happened.[48]I do not think that on the material filed for the hearing, the claimant’s account is sufficiently credible for me to find that he has the “better argument” on this issue. I say that for the following reasons: i) as Mr Lewis accepted in his skeleton argument, the claimant’s explanation appears unusual. It is not how banks in this jurisdiction or their customers would usually be expected to behave. The claimant has not suggested a reason why Byblos Europe in London would have contacted him to provide cash to the bank for it to pass on to its customers, rather than the bank itself providing cash to those customers. The claimant has not said why he was willing to pay such comparatively large amounts of cash to the bank to be passed onto a wide range of people he did not know and had never met on a simple promise that the bank would ask those unknown individuals to deposit the same amount into his Lebanese bank account. The claimant has not explained why he was willing to enter into such risky arrangements without himself receiving any benefit from the transactions; ii) the claimant has not provided any documentary or other independent evidence to support his explanation. He has not provided any contemporaneous correspondence or any evidence from any other witness. He has not provided any business records to support the assertion that his business was producing the relevant amounts of cash. He has not provided any record of the amounts of cash he says he paid to Byblos Europe in London. If the claimant had in fact entered into a series of arrangements that involved handing specific amounts of cash over in return for a promise of repayment of the same sum, one would expect him to have kept some contemporaneous record of the sums he had provided; iii) as set out, above, the claimant’s explanations during the course of these proceedings have evolved in a manner which undermines their credibility. Of particular note in this regard have been his explanations for the cash deposits. The claimant attributed these to Byblos Europe in London until he was shown the designation letter and the reference to Mr Salim and his employees. Even at that stage the claimant’s explanation for the payments in by Mr Salim only account for £30,000 of a total amount of £57,070.80 that appears to have been paid into the bank account by those persons named on the letter of designation. The claimant has not sought to explain the further evidence about these payments set out in the defendant’s reply witness statement; iv) the reasons for the payments into the bank account that appear on the available banking records appear to tell a relatively clear story. Those reasons appear on their face to be inconsistent with the claimant’s account of how the bank account operated. The claimant’s explanation requires me to accept that the consistency of the reasons given and their similarity to the kinds of reasons one would expect to see if the bank account was being used for his business purposes, are mere coincidences. At least for the purposes of the present application, I am not prepared to do so; v) I do not think that, as Mr Lewis submitted, the regularity of the payments assists in resolving this question. There is no evidence before me as to the underlying rental arrangements that are referred to in the explanations given to the bank. It is therefore not possible for me to form any view as to whether any business remittances would have been expected to have been made with any particular regularity.[49]It follows that this application falls to be decided on the basis that what is set out on the face of the banking records represents the true reason for the receipts.[50]I do not accept Mr Lewis’ submission that the analysis of the claimant’s consumer status should be carried out in two stages. It seems to me that the banking relationship between the claimant and the defendant can properly be analysed as a consistent whole.[51]In so far as there are any indications as to whether the contract was being concluded for a purpose outside the claimant’s trade or profession in the account opening form, those indications point away rather than towards that conclusion. The account opening form provided an option as to whether to complete the section for a work address or a home address (or maybe both). Only the section for a work address was completed. That address was one of the claimant’s guesthouses. I accept that the fact that a bank asks for the nature of a new client’s work does not assist. Such a question would be a normal part of a bank’s due diligence enquiries.[52]From the time that the bank account began to be used to receive transfers and cash deposits it was operated in a manner which was consistent with the indication given by the account opening form. Looking at the bank account records they show, as I have said, the receipt of monies with descriptions of the reasons for the receipts that one would expect if a person was carrying on a business of the type in fact carried on by the claimant.[53]On the evidence in this case, to accept Mr Lewis’ invitation to conduct a two stage analysis would be inconsistent with the extract from the judgment in Benincasa set out above. That extract makes clear that the fact that the trade or professional activity is only planned for the future does not deprive the contract of its professional character.[54]I also do not accept Mr Lewis’ submissions that the fact that there are virtually no withdrawals from the bank account or the fact that no business expenses were paid from it should influence my conclusion as to the purpose for which it was concluded. The bank analysis demonstrates to the standard that falls to be applied at this stage, that the claimant has given his clients or customers the bank details for the bank account as the place to pay him for the services that his business provides. On the analysis conducted by the defendant and set out above, a substantial proportion of the payments into the account were by clients and customers doing just that. That activity cannot be said to fall outside the claimant’s trade or profession. It is an essential part of it. The fact that the claimant has chosen to structure his banking arrangements in such a way that he pays business expenses from another account and lets the balance in the bank account accumulate does not change that essential feature of the purpose for which the claimant used the account.[55]Even if I were to infer that the claimant was also using the bank account to accumulate his earnings for subsequent personal use and to that extent the account had a dual purpose, that would not assist him on the question of jurisdiction. It cannot be said on the evidence that the business purpose was only negligible (Milivojevic, above).

Conclusion

[56]It follows from the above that the defendant’s jurisdiction challenge succeeds. I invite the parties to submit a draft order reflecting the relief set out in the application notice. END