Stanford Asset Holdings Ltd and another v AfrAsia Bank Ltd (Mauritius)

Banking confidentiality legislation that places duties on individuals with access to bank records does not, without more, impose the statutory duty on the bank or exclude the bank's common-law duty of confidence. A court may therefore grant Norwich Pharmacal disclosure against a bank, subject to compliance being possible without an individual breaching statutory confidentiality. The relevant statutory exception covers court-ordered disclosure in civil proceedings involving the bank, customer or account.

The jurisdiction is exceptional but flexible. It requires an arguable wrong, a respondent mixed up in the wrongdoing, possession of necessary information, and an appropriate and proportionate response. It is not confined to cases where disclosure is a last resort, and customer confidentiality creates no specially heightened hurdle.

Stanford Asset Holdings Ltd sought disclosure from AfrAsia Bank Ltd of information identifying recipients of US$11,145,000 fraudulently transferred from its account. The Supreme Court of Mauritius dismissed the application on 29 September 2022, rejecting statutory and Norwich Pharmacal bases for jurisdiction. The appeal concerned whether the Banking Act 2004 excluded the equitable disclosure jurisdiction and whether existing proceedings or public investigations made relief inappropriate. The Board allowed the appeal and ordered disclosure.

The Board allowed the appeal and ordered AfrAsia Bank Ltd to disclose by affidavit the names, addresses, account numbers and other particulars of recipients of the stolen money. The appellants were to pay the Bank's reasonable costs of complying with the order, with no order as to the costs of the appeal.

1. Sections 64(1) and (2) of the Banking Act 2004 impose confidentiality obligations on natural persons with access to banking records. They do not impose the statutory duty on the bank itself. The bank nevertheless owes an independent common-law duty of confidentiality.
2. The common-law duty is subject to an equitable exception of the kind recognised in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. The Banking Act does not exclude that jurisdiction. A Norwich Pharmacal application constitutes civil proceedings involving the financial institution and the customer or account, so section 64(3)(d) enables employees or agents to comply with a disclosure order.
3. Mauritian courts have the same equitable jurisdiction as the English High Court and apply the same principles. The jurisdiction includes interim disclosure orders, whether free-standing or ancillary to freezing relief.
4. The applicable fourfold inquiry is whether there is an arguable wrong, whether the respondent was mixed up in it, whether the respondent possesses necessary information, and whether disclosure is appropriate and proportionate overall. The first three conditions were satisfied.
5. The fourth condition is not a last-resort test. Existing proceedings against known wrongdoers did not enable tracing of money paid to onward recipients. Investigations by public authorities did not prevent proportionate assistance to the victims' civil recovery, since their interests and powers were different. Disclosure was therefore appropriate, proportionate and necessary to do justice.
6. Section 64(3)(h) applies only where a natural person referred to in subsection (1) is summoned, not where relief is sought against the bank. Sections 64(9) and (10) form a pair, with subsection (10) applying only to applications by persons or authorities identified in subsection (9). These statutory conclusions were not necessary to the disposition but were accepted by the Board.

• Privy Council — The appeal from the Supreme Court of Mauritius was allowed. The Board announced its decision on 6 July 2023 and gave reasons on 10 October 2023: [2023] UKPC 35.
• Supreme Court of Mauritius — The application for disclosure was dismissed by judgment dated 29 September 2022. Permission to appeal was given on 19 October 2022, with final leave recorded on 6 December 2022.