I have warned many times on this blog (especially here, here, here, here, here, here, here, and here – with examples from Ireland, the UK, Australia, New Zealand, and the US) that the recipient of a mistaken payment not only has a duty to make restitution of that unjust enrichment but also faces potential criminal liability for theft if the payment is kept (and, worse, spent) rather than returned. A recent cause célèbre from South Africa provides another cautionary tale:

Sibongile Mani sentenced to 5 years’ imprisonment for theft of NSFAS funds

Walter Sisulu University (WSU) student Sibongile Mani [left] has been sentenced to five years’ imprisonment for theft relating to R14 million [€870,000] accidentally credited to her account by the National Student Financial Aid Scheme (NSFAS) in 2017.

East London Regional Court Magistrate Twanette Olivier found Mani guilty of stealing R818,000 [€51,000] of the funds.

She was only entitled to a R1,400 [€87] food allowance and was accused of failing to report when R14 million [€870,000] was credited to her account erroneously. She instead embarked on a spending spree. …

A little more background:

Key events that led up to the sentencing and appeal of NSFAS ‘millionaire’ Sibongile Mani

…
June 2017
A technical glitch led to funding administrative company Intellimali erroneously transferring R14m into Mani’s account.

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Banks are more often cast in the role of Scrooge than Santa; and, even when they start out in the latter role, they end up in the former.

For example, where over-active ATMs played Santa and permitted withdrawals of amounts greater than available funds or credit, the bank quickly became Scrooge, insisting that all money withdrawn by customers in excess of their balances will have to be repaid. Unlike in monopoly, you cannot retain the proceeds of a bank error in your favour. It’s not a gift either from God or from the bank. As I have explained many times on this blog, this is a mistaken payment, and the recipient must return it, unless there is a defence. And, if it is not returned, it could constitute theft.

Just before Christmas, Santander bank found itself first as Santa and then as Scrooge:

Bank accidentally deposits $176 million into people’s accounts on Christmas Day

Thousands of people received a surprise gift on Christmas Day this year when European bank Santander accidentally deposited £130 million ($176 million) across 75,000 transactions.

The mistake happened when payments from 2,000 business accounts in the U.K. were processed twice, meaning some employees saw their wages double, while suppliers also got more than they were expecting.

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This is the fourth post (in a series of seven; see also parts I, II, III, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs.

In my previous post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, concluding that it could not in the former but that it could in the latter; and I considered whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. With some difficulty, Thornton J held that Surrey could indeed rely upon it. In this post, I want to consider another – simpler, more straightforward – cause of action that may have been available on the facts of both cases, and that could, in particular, have alleviated the difficulties encountered by Thornton J in Surrey.…

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In the classic comedy television series Father Ted (Channel 4 | IMDB), the title character, Fr Ted Crilly (pictured left, as portrayed by actor Dermot Morgan) often claimed “That money was just resting in my account!”. We learn early in the first series that Ted was exiled to Craggy Island for stealing money intended to send a child to Lourdes and using it for a trip to Las Vegas (S1E3). In various subsequent episodes (S1E6; S2E4; S2E6; S3E8) he claims that the money was just resting in his account. I was reminded of this by an article (sub req’d) by Fiona Ferguson currently on the front page of Courts News Ireland:

Man claimed he ‘found’ €17k of fraud cash in his bank account

A Malawian man charged with money laundering who told gardai that he found €17,000 in his bank account when checking to see if his wages had been paid has avoided a jail term.

John Carlos (32) used some of the money to pay his college fees before transferring €12,000 to a savings account. He then contacted the bank to alert them to the €17,000 and the transfer he had made.

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In 2016, Fife was said to be the happiest place to live in Scotland, at least according to the Bank of Scotland Happiness Index. But it may not be quite so happy for a man who was recently overpaid nearly £300,000 by Fife Council and now has to pay it back (that’s Fife House, North Street, Glenrothes, Fife, Scotland, the seat of Fife Council, in the picture). According to Irish Legal News yesterday (also here and here):

Fife Council, in Scotland, was supposed to pay the man £59.95 a week, but accidentally paid £59,395 per week instead – and didn’t notice until around £297,000 was paid out. … Most of the cash has been recovered and a repayment plan has been put in place to recover the remaining sum, around £12,000.

It was a monumental banking blunder from an administrative worker at the council who made a “keying error“. This resulted in five massive weekly overpayments during July and August, before council officials discovered the error. This is a spectacular example of a butterfly-effect typo; and Irish Legal News has another example today: a judge calculating a half-billion dollar damages award typed $107 million rather than $107 thousand into his calculator.…

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Last month, English golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Thomas Fleetwood had the St£120,000 (US$154,480, €133,000) winnings deposited in his bank account. There doesn’t seem anything exceptional in that story, so let’s try again. Last month, British golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Florida golfer Thomas Fleetwood had the St£120,000 winnings deposited in his bank account. That’s right – golf’s authorities lodged the winnings to the bank account of the wrong golfer. One of Thomas’s golf friends posted a picture of the lodgement record on twitter. And Thomas duly repaid the wayward deposit. But he would not have been able to keep it anyway, had he been minded to. As I have said before on this site, you can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free (see also here, here, here, here, and here). So, Thomas would have had to give back the winnings to golf’s authorities; and they in turn will no doubt pay them on to Tommy, if they have not already done so.…

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In the board-game Monopoly, one of the cards that you can get by landing on ‘Chance’ is ‘Get out of jail free‘. If you are sent to jail during the game, you can use the card to ‘escape’ immediately, without having to cool your heels for the three turns otherwise mandated by the rules. It is as about a useful guide for life as the its fellow Monopoly ‘Community Chest’ card, which tells you that you can keep the proceeds of a bank error in your favour. Unfortunately, you can’t; and spending it is straightforward theft, as is well illustrated by a story in today’s Irish Independent:

Jail for ‘flabbergasted’ teen who succumbed to temptation after €20k was mistakenly lodged in his account

Karl Smith was due €200

A teenager who had “an incredible temptation presented to him” two days after his 19th birthday when his former employer mistakenly lodged almost €20,000 into account has been jailed for theft. …

Judge Melanie Greally sentenced Smith to four years in prison with the final two years suspended.

There is more on this case here, here, here and here. This is not the only time this kind of thing has happened, though it certainly seems to be the most unlucky defendant.…

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