Credit Suisse Trust v Intesa San Paulo Spa

Norwich Pharmacal relief may be granted against a bank’s English branch to obtain information held or accessible through an overseas branch. The remedy is exceptional and must be exercised with care, but fraud is a particularly strong context for its use. The fact that the relevant banking activity occurred abroad does not itself prevent relief.

The court should also consider whether the order has practical utility. A realistic prospect that the English branch can obtain at least some information is sufficient. Questions concerning foreign banking confidentiality, public policy or recognition and enforcement are ordinarily matters for the foreign court.

Credit Suisse Trust, trustee of a trust, sought Norwich Pharmacal orders against two Italian banks with London branches. The applications arose from efforts to enforce a Guernsey judgment against the trust’s former fiduciary agent, Mr Nemni, who had dishonestly misappropriated trust funds.

Information obtained from another institution indicated that payments connected with Mr Nemni had been made through accounts at the defendant banks. Neither bank contested the applications, but both raised issues concerning information held in Italy, Italian banking confidentiality and the need for recognition by the Italian courts.

The court considered whether it had jurisdiction and whether relief was appropriate and useful where the relevant information was connected with foreign branches.

1. The applications were granted. The court was satisfied that the applications fell within the definition of interim relief in Civil Jurisdiction and Judgments Act 1982, section 25, in aid of the Guernsey proceedings and judgment.

2. Norwich Pharmacal relief concerning information held by an overseas branch is exceptional and must be granted with care. Nevertheless, fraud is a particularly appropriate context for the remedy. Nothing in the authorities prevented an order merely because the information was held by or connected with a foreign branch.

3. The court considered that the order against BMP had clear utility because its London branch could obtain at least some information from Italy and the bank appeared willing to provide information if protected by a court order.

4. Although the position concerning Intesa was less clear, there was a realistic prospect that its London branch could obtain at least some information. The possibility that the order might require recognition in Italy did not make it pointless. If recognition or enforcement raised public-interest or confidentiality objections, those matters could be considered by the Italian courts.

5. The orders included permission for either Credit Suisse or the relevant bank to apply for variation or discharge. No time limit was imposed. The banks were not alleged to be wrongdoers, but were involved in the wrongdoing in the Norwich Pharmacal sense.