The JCPC Overrules Stanford Asset Holding Ltd V Afrasia Bank Ltd (Supreme Court Of Mauritius) And Grants Disclosure Order

On 6 July 2023, the Judicial Committee of the Privy Council (JCPC) delivered its oral judgment overruling the judgment of the Supreme Court of Mauritius in the matter of Stanford Asset Holding Limited v Afrasia Bank Limited (2022 SCJ 333). A case in which the applicant had made an application to the Supreme Court for an order requiring Afrasia Bank Limited to disclose to them information about the identity and bank details of a recipient of a bank transfer of over USD 11million so that they could take action to trace and try to recover the money.

The background of the case is that the applicant, Stanford Asset Holding Limited had lodged an application for the purpose of:

1. enabling them to retrace a sum of USD 11.145 Million which had allegedly been fraudulently transferred from their bank account held at Afrasia Bank Limited to that of a third party, Key Stone Properties Limited;
2. initiate proceedings in Mauritius or abroad against the subsequent, as yet unidentified recipient(s), of all or part of the funds.

In its application, the applicant adopted a two-pronged approach, relying on the provisions of the Banking Act to obtain disclosure and in the alternative, on an application of the Norwich Pharmacal principles for the issue of a disclosure order.

After an analysis of the laws in Mauritius, the Supreme Court, in a judgment delivered on the 20 May 2022, refused to grant the order whilst considering a banker's duty of confidentiality under the laws in Mauritius and the exceptions stated thereunder. The Supreme Court also analysed the application of the Norwich Pharmacal principles and found that "the particular circumstances of the present case do not justify the granting of a Norwich Pharmacal order".

The applicant appealed to the Judicial Committee of the Privy Council.

In their oral statement made on 6 July 2023, the JCPC stated the following:

1. The Board has decided that the Supreme Court's interpretation of the legislation was mistaken;
2. There is no barrier to the making of such an order in the circumstances of the present case;
3. The decision has been announced in advance of handing down the full judgment in view of the need for the appellant of making progress as quickly as possible in tracing the funds.

An order was also made for the disclosure of the necessary information. The full judgment of the JCPC will be delivered at a later stage in which their reasons for reaching that decision will be stated.

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