In a judgment delivered on 10 October 2023, the Judicial Committee of the Privy Council held that the duty of confidentiality of a banking institution does not arise under the Banking Act but existed at common law/equity. Accordingly, the restrictions to disclosure under the Banking Act do not preclude the issuance by the Mauritian courts of a Norwich Pharmacal order or a Banker's Trust v Shapira order, subject to the conditions for either type of relief being satisfied.
Once the disclosure order is granted by the Court, the bank may validly depute an officer to swear an affidavit disclosing the required information and the officer who does so does not expose themself to liability for breach of their oath of confidentiality under the Banking Act, as they are protected by the exception under section 64(3)(d) of the Banking Act which allows disclosures in case of civil proceedings involving a financial institution and its customer or their account.
This decision strikes a balance between the rights and interests of the bank's customer and the right of victims of frauds who are limited in their recourses to trace funds defrauded from them through the banking system.
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