" I thought it had gone through, but my online banking screen crashed (not my browser) just as the confirmation was supposed to come up. In the past this had happened and the payment had still gone through."
Continuing his response he went on to say that he phoned the bank on the 5 th but was told that it might not show up immediately on their system and that he should try again on the 6th. On the 6 th it did not appear to have done so and he phoned the bank again to ask if they could confirm whether it had gone through but was told that they could not confirm but did not think it had. The quotation in the letter continues: " I then waited until the following morning,7th, when I was sure it hadn't gone through and instigated a same day CHAPS payment....However, the CHAPS request missed the lunchtime deadline on 7 th and was not processed by the bank until 8 th , resulting in payment one day late".[5]There is no correspondence before us from the bank. In the response in the letter of 22 January 2009 Mr. Lemon stated that he had been in touch with the bank and "... they confirmed that they do not keep the information that would be able to prove that the problem had occurred as described". There is an indistinct copy bank sheet which shows that the Appellant's Business Directplus account was overdrawn with the CHAPS payment out though it was in credit on 5 February. In a letter dated 12 August 2008 Mr. Lemon stated that there was an agreed overdraft facility and accordingly that an insufficiency of funds was not a factor.[6]We are satisfied and find that Mr. Lemon on 5 February 2008 attempted to make a BACS payment which would normally have arrived with the Commissioners on time. Mr. Lemon pressed the confirmation button but the system then crashed. Although there is no evidence from the bank we see no reason to disbelieve Mr. Lemon's explanation. We accept that the system crashed and that the fault was not with his browser. We also accept that when this had happened on previous occasions the payment had in fact gone through.[7]We are satisfied that on both the 5 th and 6 th February he made attempts to check with the bank whether in fact the payment had gone through but the bank was unable to give a definite answer.[8]We are satisfied that there was a reasonable excuse for the failure of the BACS payment which was due to a computer failure for which the Appellant was not responsible.[9]It is clear that Mr. Lemon was too late in giving instructions on 7 February to the bank for a same-day CHAPS payment. The issue is whether this failure to make the CHAPS payment on 7 February negates the reasonable excuse. This was however merely an attempt to remedy a situation which we have already indicated was not Mr. Lemon's fault. It was not unreasonable in our view for him to wait until he had confirmation that the payment had not gone through before initiating payment of a substantial sum for a second time. In all the circumstances we consider that Mr. Lemon acted reasonably and that the Appellant has a reasonable excuse.[10]Accordingly the appeal is allowed.[11]We make no direction on costs. MAN/08/2006 ELSIE GILLILAND CHAIRMAN Release Date: 27 March 2009