Jersey Unreported Judgments

Banking - application brought by the First Respondent to adjourn a summons brought by the Applicants under the Bankers' Book Evidence (Jersey) Law 1986

[2018]JRC037

Royal Court

(Samedi)

14 February 2018

The First Applicant appeared on her own behalf.

Advocate M. L. Preston for the First Respondent.

judgment

the deputy bailiff:

1.        This is a case management application brought by Nedbank Private Wealth Limited, Jersey Branch ("the first respondent") to adjourn a summons brought by the applicants under the Bankers' Book Evidence (Jersey) Law 1986 ("the Bankers' Book Law") to a date to be fixed. 

2.        The applicants have commenced proceedings against Nedbank Trust (Jersey) Limited ("the second respondent") by means of an amended Order of Justice dated 20^th November, 2017.  It is not necessary to set out the detail of the Order of Justice.  Suffice to say it makes a number of serious allegations including those of dishonest breach of trust, breach of fiduciary duties and a conspiracy to injure.  The second respondent is the trustee of the Westley Trust and the first and second applicants are beneficiaries of that trust. 

3.        On 10^th January, 2018, the second respondent filed an Answer to the Order of Justice.  In the Answer it says it is doing so as a "precautionary measure" and refers to the fact that it has issued a summons to strike out the Order of Justice in its entirety.  That summons to strike out was issued on 29^th January, 2018, and is set to be dealt with on 23^rd and 24^th April, 2018. 

4.        On 23^rd October, 2017, the applicants issued a summons against the first respondent, as stated above, pursuant to Articles 6(1) and 6(3) of the Bankers' Book Law.  The return date for that summons is 19^th February, 2018. 

5.        Articles 6(1) and 6(3) of the Bankers Book Law provide as follows:- 

"(1) On the application of any party to a legal proceeding the court may order that such party be at liberty to inspect and take copies of any entries in an banker's book for any purposes of such proceedings.

...      

(3) In a civil legal proceeding an application for an order under this Article shall be made by summons, which will be served on the bank and the other party and shall be supported by an affidavit showing the materiality of the inspection and that the application is made in good faith."      

6.        The position of the first respondent is straightforward.  It argues that it should not be required to comply with any order made under the Bankers' Book Law until after the strike out has been heard and determined.  Were it otherwise it may be that, if the application to strike out is successful, the applicants will no longer be party to any proceedings before the Court as those proceedings would have come to an end and have been struck out.  The Bankers Book Law applications would fail.   

7.        The first respondent also argues that any information provided by it under a successful application under the Bankers' Book Law would not assist in a strike out application.  This, so it is argued, is because the strike out application is largely if not exclusively based on the question of whether or not the applicants' Order of Justice should not be struck out by reason of res judicata.  It would be alleged that the issues raised in the proceedings commenced by way of Order of Justice have already been dealt with by a court of competent jurisdiction in South Africa.  The issue for the Court on the strike out is therefore one of law primarily and no information obtained under the Bankers' Book Law application will be relevant. 

8.        The second respondent (the defendant in the Order of Justice proceedings) was not represented and took no part in the argument before me.  Its position is, so I understand from the advocate for the first respondent, aligned with the first respondent.  This is hardly surprising given the connection between the respondents. 

9.        The applicants, however, argue that the Bankers' Book Law application should continue.  Firstly it is prior in time.  They are beneficiaries of the Westley Trust and they have not received information that they should be entitled to.  More importantly for these purposes it is argued that the information provided, if the Court makes an order under the Bankers' Book Law, is or may well be relevant to the strike out application as it may show that the South African court was misled. 

10.      From a procedural and practical point of view I can well understand the sense in having the Bankers' Book Law application dealt with after the strike-out for the reasons set out by Advocate Preston. 

11.      However I do not propose to adjourn the Bankers' Book Law application.  As matters currently stand the applicants are parties to proceedings and their application will succeed or fail on its merits.  It is of course open to both of the respondents to resist any disclosure under the Bankers' Book Law application and it will be for the court at the time to determine the outcome of that application. 

12.      I cannot say for certain that information that may be disclosed could not be relevant to the strike out application and that is a matter that will, presumably, be argued before the Court considering the Bankers' Book Law application. 

13.      Accordingly I decline to make the orders set out in the first respondent's summons.  I leave the costs of this summons to be determined by the court dealing with the strike out application. 

Authorities

Bankers' Book Evidence (Jersey) Law 1986.