Jurisdiction to grant Norwich Pharmacal order against a party outside the jurisdiction if they have a branch within it

Katharine Alexander

Credit Suisse Trust v Banca Monte Dei Pasche Di Siena involved two separate but linked applications for Norwich Pharmacal orders against Italian banks. Norwich Pharmacal orders allow the applicant to obtain information from a third party mixed up in the proceedings to identify, and therefore allow for a claim against, the wrongdoer.

A trust, of which Credit Suisse is a permanent trustee, employed a fiduciary agent who clearly breached his fiduciary duties by siphoning-off large sums of money for his own benefit. As a result, a worldwide freezing order was obtained from the Guernsey court over his assets in the sum of 4.5 million euros. The trust applied for Norwich Pharmacal orders against two Italian banks with whom the agent held accounts: Banca Monte Dei Pasche Di Sienna (“Banca Monte”) and Intesa San Paulo Spa (“Intesa”).

The agent’s banking activity occurred in Italy, which meant that Banca Monte and Intesa were subject to an Italian law regarding banking confidentiality which prevented them from releasing the information sought by the trust. Both banks had London branches, so the question arose whether, if Norwich Pharmacal orders were made against the banks, the London branches could provide the information sought. The banks took different positions on this: Banca Monte said its London branch could obtain some information from its Italian branches; however, Intesa indicated that a Norwich Pharmacal order would need to be recognised by the Italian court before it could be enforced.

His Honour Judge Waksman granted the orders against both banks. He considered two issues: firstly whether it was appropriate to grant the relief in England for activity occurring in Italy; and secondly whether there was “any point” in granting the relief here. On the first issue, the judge drew an analogy with the situation where information was sought from the foreign branch of an English bank. There, although the grant of a Norwich Pharmacal order was regarded as “exceptional”, such orders had been made, particularly in cases of fraud. As this case clearly concerned fraud, the judge held there was nothing preventing him from granting the orders simply because the information sought was held by a branch of a bank which was abroad.

On the second issue, the judge concluded there was a value in granting the Norwich Pharmacal orders. Banca Monte had shown it was willing to provide at least some information on the condition a court order was obtained. Although Intesa had a different standpoint, the judge concluded it was not impossible for it obtain information from Italy through its London branch. If Intesa failed to do so, it was open to Credit Suisse to have the order recognised in the Italian courts under the Brussels Regulation.

This case confirms the use of Norwich Pharmacal orders in fraud cases and clarifies the “point” in granting them when activity occurs outside the English jurisdiction: either the order will have the intended effect, or it can be later recognised by another court.

Credit Suisse Trust v Banca Monte Dei Pasche Di Siena and another [2014] EWHC 1447 (Ch)

Post By Katharine Alexander (2 Posts)

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