AB Bank Ltd, Off-Shore Banking Unit (OBU) v Abu Dhabi Commercial Bank PJSC

A Norwich Pharmacal order is final relief as between the applicant and the information-holder, even if initially made ex parte or subject to a return date. It is therefore not an “interim remedy” for the purpose of paragraph 3.1(5) of Practice Direction 6B. The injunction gateway requires the order to compel an act within England and Wales. The necessary and proper party gateway does not apply where the foreign information-holder is not alleged to be liable for the underlying wrong. Service out may also be refused where compliance risks breach of foreign law and an appropriate alternative route exists.

AB Bank alleged that it had lost US$20 million through a fraud involving Pinnacle Global Fund PTE Limited. It sought information from Abu Dhabi Commercial Bank PJSC’s Dubai unit, which was said to possess information identifying the recipients of the money. Cooke J had made a Norwich Pharmacal order without notice, and the Dubai bank applied to set it aside.

The court considered whether service out was permitted under three jurisdictional gateways, whether the bank had submitted to the jurisdiction, and whether it had a place of business in London at which it could be served.

1. The order was set aside. The application for Norwich Pharmacal relief could not pass any of the three relied-on gateways in Practice Direction 6B.
2. Paragraph 3.1(5), concerning an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982, applies to relief interim as between the applicant and respondent. A Norwich Pharmacal order is final relief against the respondent. Its ex parte origin and return date do not alter that character.
3. The injunction gateway in paragraph 3.1(2) was not satisfied. The order could be complied with in the UAE or Bangladesh and did not require an act within England and Wales.
4. The necessary and proper party gateway in paragraph 3.1(3) was unavailable. The Dubai bank was not alleged to be liable for the fraud, and the Norwich Pharmacal claim was a separate cause of action.
5. Even if a gateway or valid service had been established, service out would not have been proper. There was a real risk that disclosure could breach article 379 of the UAE Penal Code, while the information could instead be sought through the UAE Central Bank. The court should exercise restraint before asserting an exorbitant jurisdiction over a foreign bank.
6. The Dubai bank had not submitted to the jurisdiction, and valid service within the jurisdiction had not been established under rule 6.9 of the Civil Procedure Rules 1998.