Meng v HSBC Bank Plc & Ors

A section 7 order under the Bankers’ Books Evidence Act 1879 is available for a legal proceeding in the United Kingdom, not directly for foreign proceedings. The expression “legal proceeding” has a consistent UK-limited scope throughout the Act.

“Entries in” bankers’ books or records means transactional records. It does not include non-transactional records maintained for regulatory compliance, such as evaluative compliance material, meeting notes or correspondence. The application was therefore refused, and the claim and application were dismissed.

The applicant, a defendant in Canadian extradition proceedings, sought an order requiring HSBC entities to provide access to thirteen categories of documents under section 7 of the Bankers’ Books Evidence Act 1879. The documents were said to be held by US prosecuting authorities and to be relevant to challenges concerning the reliability of the extradition case and alleged abuse of process.

The court considered whether section 7 applied to foreign proceedings, whether the statutory reference to bankers’ books covered non-transactional regulatory-compliance records, and whether the discretion should in any event be exercised.

1. Foreign proceedings. The application was outside the jurisdiction conferred by section 7. The Act’s references to “legal proceeding”, “court” and “judge” form a coherent scheme concerned with proceedings before a court or judge in the United Kingdom. Sections 3 to 7 concern access to records so that entries may be proved in those proceedings. Section 8 also contemplates enforcement of costs as if the bank were a party to the proceeding. The statutory context therefore excludes a direct application for documents to be used in Canadian extradition proceedings.
2. The mutual-assistance regimes in the Evidence (Proceedings in Other Jurisdictions) Act 1975, the Crime (International Co-operation) Act 2003 and related legislation reinforced that conclusion. The Bonalumi v Secretary of State for the Home Department application had been made in the context of United Kingdom proceedings for taking evidence. XY, LLC v Jessie Zhu concerned Hong Kong proceedings and did not establish a direct route based solely on foreign proceedings.
3. Bankers’ books. Section 9(2), read with section 7, is directed to transactional records: records which provide prima facie evidence of concrete banking actions, such as the time, amount, account and parties to a transaction. The statutory language adapts to modern recording methods, but it does not extend to everything held or written by a bank in its ordinary business.
4. The court followed the transactional approach in Barker v Wilson, Williams v Williams and Re Howglen Ltd, and preferred the approach in Wee Soon Kim Anthony v UBS AG. It declined to adopt the extended non-transactional category suggested in Protasco Bhd v PT Anglo Slavic Utama.
5. Discretion. Even if the first two issues had been decided for the applicant, the discretion would not have been exercised. The Canadian court was the appropriate forum to address fairness, disclosure, abuse of process and the evidential burden in the extradition proceedings. The requested categories were also excessively broad and were not linked to specific regulatory duties.
6. The application was refused. The applicant’s CPR Part 8 claim and section 7 application were dismissed. The respondents’ costs were summarily assessed at £80,000.