Disclosure of confidential banking data based on suspicion of fraud will have a detrimental effect on the finance industry, says Sam Nafissi
In a competitive international banking environment where clients value confidentiality and there are jurisdictions vying to give it to them, an incursion into the privacy offered by Jersey banks ought to be of concern to the island’s business and legal community.
There has always been scope for the courts to infringe on a bank’s duty of confidentiality to its client—the power to order pre-action disclosure against a third party necessarily means that a bank can be required to produce confidential information relating to the affairs of a client engaged in litigation at the order of the court.
In Macdoel Investments Ltd & Others v Federal Republic of Brazil & Others [2007] JCA069, however, the Jersey Court of Appeal appears to have dramatically lowered the standard of proof to be met before a court will make a pre-action order for disclosure against a third party.
Mere suspicion that the proceeds of fraud
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