UK: High Court Grants Norwich Pharmacal Relief Against Foreign Banks

Credit Suisse Trust v Intesa Sanpaolo & Anor. High Court (Ch D), 6 March 2014:

The applicant, Credit Suisse Trust, applied for Norwich Pharmacal relief in two separate but connected actions against two Italian Banks; Banca Monte Dei Pasche Di Siena SPA (BMP) and Intesa San Paulo SPA (Intesa). Relief was sought in order to expose the assets of Mr Nemni, a former fiduciary agent of Credit Suisse. After a full trial in Guernsey, Mr Nemni was held to be in breach of his fiduciary duty by reason of dishonestly taking money from the trust. Nemni was ordered by the court to pay substantial sums and costs in respect of this breach.

In order to assist in the enforcement of the order, a worldwide freezing order was issued against Mr Nemni's assets and steps were taken to discover the identification and location of any bank accounts. An earlier application for Norwich Pharmacal Relief against Amex revealed two Italian banks that had been used by Mr Nemni. Credit Suisse initiated applications for Norwich Pharmacal relief against these banks in order to obtain information held by the bank regarding Mr Nemni's assets. While neither bank sought to contest the proceedings, both questioned whether information could be released by an Italian Bank, whose activities are governed by Italian law, under an order from an English court.

The position of BMP and Intesa with regards to the applications for relief was slightly different. In relation to BMP at least some of the information that Credit Suisse sought could be obtained by the London branch of the Bank from its Italian branches. However, Intesa raised the issue as to whether information could be obtained in England since the activities of the Bank were governed by Italian law, and thus any order would have to be recognised by an Italian court.

The court highlighted two main concerns. Firstly, whether it was appropriate to give relief against a Bank whose activities take place abroad. The court concluded that in analogous circumstances the remedy was exceptional and granted with care, but that it had been granted in relation to fraud cases. Secondly, they questioned whether there was any point in granting relief since the Banks may be unable to provide the required information. It was clear that in relation to BMP at least some of the required information could be obtained, although a court order would likely be needed to ensure its release. While the situation was less clear with regards to Intesa, the court found that it was not unrealistic that the London branch would attempt to receive the required information from its Italian branches in order to comply with the order. Should either of these orders not bear fruit, it was the intention of Credit Suisse to have the order recognised by the Italian courts under the Brussels Convention 1968 art.26. Any arguments against recognition of the order could then take place in the Italian courts.

Accordingly, the court granted an order for relief against both banks.

The full text of the Judgment can be found here: http://www.lawtel.com/UK/AC9301386

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nicola Vinovrski
Anna Myrvang
 
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