BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Boulbet v Sumup Ltd (Approved) [2025] IEHC 285 (20 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC285.html
Cite as: [2025] IEHC 285

[New search] [Printable PDF version] [Help]

APPROVED                                                               [2025] IEHC 285

 

 

 

 

THE HIGH COURT

 

2024 3176 P

BETWEEN

 

JEAN PIERRE BOULBET

PLAINTIFF

AND

SUMUP LIMITED

DEFENDANT

 

 

JUDGEMENT of Mr Justice Nolan delivered on the 20th day of May, 2025

1.                  In these proceedings, the Plaintiff who is a retired gentleman and a French citizen residing in France, seeks orders requiring the Defendant to provide certain categories of information, details and documents which he submits will identify unknown individuals who have allegedly perpetrated a fraud on him so as to allow him to pursue and/or recover against them. No other substantive relief is sought against the Defendant.

2.                  The Defendant carries out business in the State as a banking and financial institution, a financial intermediary, and a digital or online bank.

3.                  In 2021, the Plaintiff sold some investment property and decided to reinvest the proceeds. He responded to what he believed was an investment opportunity advertised on social media. He was then contacted by an individual who identified himself as Nicolas Becker. Mr. Becker purported to represent Skandia Bank in Berlin, Germany. Following engagement with this person, the Plaintiff decided to initially invest approximately €280,000 into what he believed to be investment vehicles to acquire care home facilities in Spain. To make the investment, he transferred from his personal and company bank accounts which he owned, to various bank accounts located in Spain with Caixa Bank, Santander Bank, and Bilbao Viscaya. These transfers all occurred between the 19th of March 2021 and the 23rd of June 2021. The investments were capable of being monitored and tracked through digital online "portals" and tracking tables, which identified the return on investment and profits made, which the Plaintiff duly used from time-to-time. All of this, no doubt reassured him as to the legitimacy of the transactions.

4.                  In June of 2021, the Plaintiff was contacted by email by an individual who identified himself as Stefan Lemercier, who purported to represent Santander Bank in Paris. He was advised by M. Lemercier that the investments he had made with the three banks were, in fact, fraudulent and that he should withdraw his investments. At approximately the same time, he discovered he was unable to access the previously accessible digital online 'portals' to track his investments. On foot of the representations and advice of the said M. Lemercier, the Plaintiff withdrew his funds. He was then convinced by the same man to purchase various investment products from Santander Bank, which were advertised in portfolio documents provided to him and which were branded with the logo of the bank.

5.                  To make the investments, the Plaintiff was instructed to transfer funds to a number of Irish bank accounts opened with the Defendant. Additional transfers on the same basis were made to a range of other accounts across the European Union, totalling approximately €1,500,000. The transfers relevant to this application occurred between the 18th of December 2021 and the 22nd of February 2022 and totalled approximately €390,000.

6.                  In August of 2022, the Plaintiff attempted to contact M. Lemercier, by telephoning Santander Bank at its Paris branch. He was informed that no person by that name worked for the bank. This was subsequently confirmed in writing. It became apparent to him that he had been the victim of a fraud or a scam, not once but twice.

7.                  The Plaintiff received no further contact from M. Lemercier, if that is his real name. The Plaintiff made criminal complaints to the relevant authorities and retained legal counsel in various EU countries in which he had invested in this manner. This included Portugal, Lithuania, France, Spain, and Ireland. Investigations into these complaints are ongoing. The real identities of Mr. Becker and M. Lemercier remain unknown.

8.                  The Plaintiff makes the case that in order to further pursue the perpetrators of the fraud, it is necessary to obtain the information sought in the Notice of Motion.

The Notice of Motion

9.                  The Plaintiff seeks certain reliefs in order to attempt to recover his money. These include the following:

 "(i) The name, address, date of birth, email address(es), and telephone number(s) of the person or persons who opened the Bank Accounts set out in the Schedule to the Notice of Motion and any beneficiary or beneficiaries of the said accounts, and

 (ii) Details of all transactions and payments that have been made into or out of the Bank Accounts set out in the Schedule to the Notice of Motion, including the details of any person or persons mandating such payments and the details of such person or persons to whom funds were transferred."

10.              The Defendant neither consents nor objects to these reliefs on the basis of undertakings which it requires in line with the jurisprudence. It is, however, the third relief which gives rise to the dispute between the parties. It reads as follows:

 "(iii) A copy of the documentation provided to open the Bank Accounts set out in the Schedule including identity verification documentation."

The Legal Principles

11.              There are two major legal principles at play in this application. The first relates to what is known as a Norwich Pharmacal Order ("NPO"), whilst the second is known as a Banker's Trust Order. As the case law shows, there is a subtle but distinct difference between the two types of orders.

12.              A NPO is a form of order which derives from the case of Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133, approved in Ireland in Megaleasing UK Ltd. v Barrett [1993] ILRM 497 ("Megaleasing").

13.              A NPO compels a Defendant to provide specified information that would assist to identify a third party who has committed an actionable wrong against the Plaintiff. The purpose of a NPO is to place a Plaintiff in a position to identify and seek redress against a previously unknown wrongdoer.

14.              The most recent authoritative case in this jurisdiction on the availability of NPOs is Blythe v Commissioner of An Garda Síochána [2023] IECA 255 ("Blythe"). In Blythe, the court was required to consider an application by the Plaintiff for disclosure of material held by the Defendant in respect of its investigation into allegedly defamatory publications by third parties.

15.              In delivering the judgment of the Court of Appeal, Collins J. identified certain principles deriving from the case law on NPOs to date:

(i)     Firstly, the Plaintiff seeking a NPO should demonstrate that he or she has a strong case against the alleged wrongdoer,

(ii)  The Plaintiff should establish that the Defendant had some involvement in the allegedly wrongful transaction such that, absent such involvement, the transaction(s) would not have taken place in the manner it/they did,

(iii)   The NPO should not be made unless the court is satisfied that:

a.                  the information is likely to be in the possession of the Defendant,

b.                  the information is necessary for the purposes of bringing court proceedings (or, it may be, for the purpose of pursuing some other legitimate remedy arising from the alleged wrongdoing) and

c.                   the Plaintiff has no other practicable or more appropriate means of obtaining that information,

(iv)    The interests favouring disclosure must be balanced against those weighing the other way. Relevant factors in this respect (and weight attaching to each) will vary in each case and the court will need to exercise its discretion,

(v)   A duty of candour applies to the Plaintiff having regard, in particular, to the absence of the alleged wrongdoer,

(vi)    The Plaintiff will be subject to an implied undertaking in respect of the use of the information and the court may make the order conditional on an express undertaking being given by the Plaintiff,

(vii)  The Defendant will ordinarily be entitled to its costs, but this remains a matter for the court subject to legislative requirements.

16.              Importantly, in Blythe, the Court of Appeal also reiterated that the jurisdiction to make a NPO is equitable in nature and origin. The scope and exercise of that jurisdiction are informed by considerations of ensuring access to the court and the right to an effective remedy.

17.              A Bankers Trust Order, on the other hand, derives from the UK case of Bankers Trust Co. v Shapira [1980] 1 WLR 1274 ("Bankers Trust") which involved an application for discovery of a range of documents which go beyond information which simply identified alleged wrongdoers.

18.              In that case, two Defendants were alleged to have induced the Plaintiff bank to pay monies into accounts held with a separate third-party bank by presenting forged cheques. Upon discovering the forgery, the Plaintiff bank sought to trace the proceeds of the cheques by way of the proceedings and sought an order for discovery against the third-party recipient bank, which included discovery of all correspondence between that bank and those Defendants, internal memoranda and any relevant banking documents. Lord Denning M.R. in giving judgment in the Court of Appeal stated:

"This new jurisdiction must, of course, be carefully exercised. It is a strong thing to order a bank to disclose the state of its customer's account and the documents and correspondence relating to it. It should only be done when there is a good ground for thinking the money in the bank is the plaintiff's money — as, for instance, when the customer has got the money by fraud — or other wrongdoing — and paid it into his account at the bank. The plaintiff who has been defrauded has a right in equity to follow the money."

19.              Five broad principles deriving from the case law were noted in the judgment of Kyriakou v Christie Manson & Woods Ltd [2017] EWHC 487 (QB) ("Kyriakou"), namely:

(i)                 that there must be good grounds for supposing that the money or assets about which information is sought belong to the claimant,

(ii)              there must be a real prospect that the information or documents sought will lead to the location or preservation of assets,

(iii)            the order should, so far as possible, be directed at uncovering the particular assets which are to be traced - or at any rate the order should not be any wider than is necessary in the circumstances,

(iv)             The interests of the claimant in obtaining the order must be balanced against the possible detriment to the respondent in complying with it, which may include an infringement or potential infringement of rights to privacy or confidentiality,

(v)               the applicant must provide appropriate undertakings.

 

The Plaintiff's Submissions

20.              Mr. Buckley SC on behalf of the Plaintiff argues that he is entitled to the documents under category (iii) either pursuant to an NPO order or alternatively, by way of a Bankers Trust Order. The difference being an NPO is primarily aimed at obtaining information to identify alleged wrongdoers, while a Banker's Trust Order is an application for discovery of documents in need of tracing funds over which the Plaintiff asserts an equitable or proprietary claim or otherwise, to assist the victims of fraud and preserving or recovering assets.

21.              He says that the NPO order has been approved in this jurisdiction in Megaleasing. In particular, he relies upon Blythe.

22.              In regard to a Bankers Trust Order, he says that the UK jurisprudence has been consistent in emphasizing the equitable and flexible nature of the remedy. He relies upon the decision of Dignam J. in ESB v Richmond Homes [2023] IEHC 571, where he said that the ability of the court to make an order for discovery/disclosure which is broader than just the names or identities of the wrongdoers, is consistent with the purpose and rationale of the equitable nature of the jurisdiction, which is to aid in the attainment of justice.

23.              Further, he submits that the obiter dicta of Collins J. in Blythe supports this view. Finally, he submits that the information and relief sought in category (iii) is relevant because the granting of a limited Bankers Trust Order in respect of the information in categories (ii) and (iii) will not assist the Plaintiff in obtaining the 'full picture' of this complex transboundary fraud and determine where and to whom his assets have been dissipated but the documents verifying identity are likely to assist in establishing the one-time geographical whereabouts of the persons who established the accounts and may assist in identifying and tracing the dissipation of proceeds from a particular EU region rather than the provision of a mere summary of such details. Identifying the individuals behind the fraud perpetrated is the objective, accordingly, piecing together as much information as possible with the assistance of EU member state law enforcement agencies, is necessary and proportionate.

24.              Further, the stated biographical details of the perpetrators of the fraud (i.e. category (i) information) may be insufficient to trace and/or recover the monies which were misappropriated.  This is because it is reasonable to assume stated biographical details may be inaccurate or misleading where the relevant perpetrators appear to have fabricated identities. The documents provided to the Defendant to open accounts will likely assist in identifying and tracing the dissipation of proceeds from a particular EU region, rather than the provision of a mere summary of such details.

The Defendants Submissions

25.              Ms. Shanley BL for the Defendant is in substantive agreement with the Plaintiff in relation to his submissions. One gets the sense that there is an element of empathy with the position in which the Plaintiff finds himself in. Therefore, the Defendant's objections are not based out of any personal or corporate bias against him, but simply to ensure that if any court order is made, that it is made in a lawful manner.   

26.              The bank has a duty to maintain the privacy and confidence of its account holders and has obligations in respect of the control and processing of personal data under the General Data Protection Regulations and the Data Protection Act 2018. In light of the duties that the Defendant owes to its customers, and given that the account holders are not parties to the action for disclosure, it is important that the jurisdiction of the court to order disclosure of any particular piece of information is carefully considered, and that any order made by the court for disclosure adequately balances the interests at stake and does not go beyond what is strictly necessary.

27.              In regard to category (iii), she says that this category is a duplicate of the relief sought in category (i), but further says that the disclosure obligations ought not be wider than what is necessary. The order of the production of documents to open the accounts goes beyond the jurisprudence.

28.              She emphasizes the views of Collins J. in Blythe. In particular where he said that any such jurisdiction to expand the category of information or documents should be strictly limited to disclosure sought for the purpose of bringing a claim and should not extend to the disclosure of material required to prove that claim, since that would be a matter for discovery in the ordinary way.

29.              This is not a case in which the Plaintiff needs the documentation sought to bring his case. He would be able to bring his action against the wrongdoers once he is provided with the names and addresses. Therefore, this is not a case of a "missing piece of the jigsaw" as referred to in the jurisprudence. She submits that the documents used to open the relevant accounts would not be a critical piece.

30.              While she concedes that a Banker's Trust Order would permit discovery of a wider range of information, she believes that the relief would not be available, even if the Irish courts were to follow the English courts and invoke the wider equitable jurisdiction. The Irish Courts have not, in any written judgment to date, made a Banker's Trust-type Order against a third party in an action for sole discovery. She accepts that this could be a proprietary claim in that the Plaintiff seeks to trace his assets and that the Bankers Trust jurisdiction is, in essence, an equitable jurisdiction directed towards tracing.

31.              However, the Plaintiff falls short in some of the Kyriakou criteria for a Banker's Trust Order. There has been a very significant delay in seeking this information. The transfers happened three years ago and under some of the jurisprudence in the UK, that would debar granting any relief at all. If there is no prospect that the information sought is going to lead to the preservation of the assets, then the order should not be made. She referred the court to a number of cases including Scenna v Persons Unknown [2023] EWHC 799, where there was delay, and Osbourne v Persons Unknown & Ors [2023] EWHC 340 where the court questioned whether the orders would have any beneficial effect.

 

Discussion on the Legal Principles

32.              As noted above, this application is based upon two equitable type orders for the purposes of seeking information which the Plaintiff says would assist him in tracing his money, which he alleges he has been defrauded of.

33.              These are NPOs and Banker's Trust Orders. There is a difference between them, as Collins J. has pointed out in Blythe.

34.              The Plaintiff submits that the emphasis throughout the UK jurisprudence is that this equitable jurisdiction to grant discovery with a much wider scope requires application with considerable flexibility. McGonigal J. in Aoot Kalmeft v Denton Wilde Sapte [2002] 1 Lloyd's Rep 417 held that in determining whether the Claimant had demonstrated a real prospect that the information sought might lead to the location or preservation of assets to which he was making a proprietary claim, the court should take a realistic view of how frauds are conducted and be satisfied that there was a real prospect that the information sought might assist in locating and preserving the assets. The court noted, in this regard, that fraudsters do not normally disclosure the whole picture to their bankers or advisers. Accordingly, the gathering of information from various sources and piecing it together, is necessary in the real world.

35.              In Larkins v National Union of Mineworkers [1985] IR 671 Barrington J. granted inspection of the banker's books, including correspondence or computer printouts from electronic records relating to the account of the union. Ms. Shanley says that this should be seen in the context of a sequestration order, and not in the context of the two applications before the court. However, in the recent decision of Dignam J. in Richmond Homes, he discussed the expansion of the jurisdiction and concluded that the case law was not restrictive and that in certain circumstances its expansion may well be required to meet the justice of any given case.

36.              He went on to say as follows:

"The ability of the Court to make an order for discovery/disclosure which is broader than just the names or identities of the wrongdoers also seems to me to be consistent with the purpose and rationale of the jurisdiction itself and with the equitable nature of the jurisdiction. The jurisdiction is to aid in the attainment of justice. O'Flaherty J in Megaleasing described it as "of ancient origin and, there is no doubt, that it may prove to be a valuable instrument in the search for justice." That the relief is a tool which is available to the court to seek to achieve justice is also implicit in the statement of McCarthy J that the "...procedure requires a balancing of the requirements of justice and the requirements of privacy....

Thus, there seems to me to be ample basis for concluding that it is open to the Court to make a broader disclosure order in an appropriate case even though the jurisdiction recognised at that time by the Supreme Court was more limited. Of course, it would not be open to this Court to do so if the Supreme Court had not acknowledged the possibility of development in the law. Nor would it be open to this Court to do so if previous High Court decisions had had to consider and determine the issue. While previous judgments undoubtedly state that Megaleasing confined the remedy to the names of alleged wrongdoers they did not in fact have to determine the issue of the scope of the remedy. I also accept that any such extension must be incremental."

37.              This view very much echoes the concept of the expansion of reliefs in the context of the appointment of a receiver by way of equitable execution, again, an equitable remedy, as annunciated by McMenamin J. in ACC Loan Management v Rickard & anor [2019] IESC 29, where he said:

"Inescapably, therefore, the next question is, if this Court was prepared to countenance incremental development of the terms "just or convenient", in the context of Mareva injunctions, does it not logically equally follow that, by analogy, there may be an incremental development in the law regarding the appointment of receivers?... It is reasonable to have regard to the fact that incremental developments in the law in England and Wales have taken place from 1975 onwards by interpretation of similar words to the s.28(8) of the 1877 Act. Such an interpretation recognises the reality that our courts have actually implicitly or expressly proceeded on this interpretation in a number of areas critical to commercial life in the 21st Century. But, more fundamentally, a more flexible interpretation does not require the law be more demanding on judgment debtors; rather it simply requires that a judgment debtor lay his or her cards on the table, in order that a court can do "justice", a value that takes priority over "convenience"."

38.              Bearing in mind that both type of orders are equitable in nature, it seems to me that the court must recognize the digital world in which we now live in. Cybercrime is a growing threat to the worldwide economy, but particularly, the economies of the western world. There is little doubt that the Plaintiff has been the victim of a concerted cybercrime involving multiple subterfuges.

39.              I am satisfied that it is appropriate to make the orders in paragraph (i) and (ii), as recalibrated by the parties. The real issue relates to category (iii). This category, in essence, is restricted to one type of document, namely, identification documents with a photo of the person who opened the account. That could either be a passport, an EU national identification card or a driver's license or some other identification document so used. Indeed, it may be none of these things, but the key and common ingredient is that it should contain a photo. To quote the old adage, "a picture paints a thousand words".

40.              In this case, a picture or photo of the individual who opened the account, will be of far greater assistance in leading to the location or preservation of the Plaintiff's money than simply, a name, address or e-mail with contact details.

41.              In particular, the court should take a realistic view as to how frauds are conducted and be satisfied there is a real prospect that the information sought might assist in locating and preserving the assets.

42.              In making such an order, and limiting it to such documentation, I very much take on board the views of Collins J. in Blythe where he noted that if there is any jurisdiction to furnish information, it should be strictly limited to disclosures sought for the purposes of bringing a claim and would not extend to the disclosure of material required to prove that claim which would be a matter for discovery in the ordinary way.

43.              The furnishing of a photograph does not assist in proving a claim, it assists in bringing a claim because the photograph may well identify the person against whom the claim should be brought. I do not agree with the Defendant's assertion that the documentation is not necessary to bring a claim, I think it is.

44.              While I appreciate there is no Irish authority to support the proposition, it seems to me to be an extension of the equitable jurisdiction and to coin a phrase often used in equitable cases, it seems to be "just and convenient".

45.              In my view, the interests of favoring disclosure far outweigh the interests of the perpetrators. Therefore, exercising my discretion, it seems to me that it would be doing a significant disfavor to the Plaintiff to refuse the application. Further, the interest of the Plaintiff in obtaining the order is far greater than any detriment which may arise to the Defendant. Indeed, it is hard to see what detriment would arise in circumstances where the Plaintiff is obliged to give appropriate undertakings.

46.              I acknowledge that the court must consider issues of confidentiality and the European Convention of Human Rights, but in the context of cybercrime and internet fraud, the court must balance those interests against that of the Plaintiff, who has been a victim of such crime. The whole point of bringing the application is to identify wrongdoers so that proceedings could be instituted in this or other jurisdictions.

47.              I accept that there has been some delay in this case, but I do not think it is fatal to the application. The factors that I take into account in this regard include the ongoing correspondence between the Plaintiff and the Defendant on the issue, going back over many months, the fact that the Plaintiff is a French national, and has been attempting to engage with the civil and criminal procedures in a number of EU countries. All of that takes time and therefore, I do not believe that the delay should be fatal to the application.

48.              Therefore, applying the principles set out in Kyiakou, it seems to me that the provision of photographic type documentation will give real prospect to leading to the location and preservation of the Plaintiff's assets. By so restricting the order to just a photo identification document, I am making it no wider than is necessary. As noted above, I have already balanced the Plaintiff's interest against those who perpetrated the crime.

49.              As Ms. Shanley has pointed out, the Plaintiff must give the appropriate undertakings. This information can only be used by the Plaintiff and in the restrictive circumstances of seeking to return his assets.

50.              In summary, I am satisfied to make the order sought in regard to category (iii) under both headings. It seems to me that the courts have jurisdiction to make the order for an NPO to include photograph identification documentation and also has jurisdiction to make the order in the form of a Bankers Trust Order. Accordingly, I shall make the order sought in relation to categories (i), (ii) and (iii) under both headings.

51.              Therefore, I shall hear the parties in relation to the nature of the order which I should make.

 

 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010