Re Crpl

• Jurisdiction: Cayman Islands
• Judge: (Foster, J.)
• Judgment Date: 26 April 2013
• Court: Grand Court (Cayman Islands)
• Date: 26 April 2013

Grand Court, Financial Services Division

(Foster, J.)

IN THE MATTER OF THE CONFIDENTIAL RELATIONSHIPS (PRESERVATION) LAW (2009 REVISION)

Ms. L. Diggle for the applicant Bank.

The Attorney General did not appear and was not represented.

Cases cited:

(1) Ansbacher (Cayman) Ltd., In re, 2001 CILR 214, considered.

(2) Bank of Credit & Commerce Intl. (Overseas) Ltd., In re, 1994–95 CILR 56, dicta of Harre, C.J. applied.

(3) H, In re, 1996 CILR 237, referred to.

Legislation construed:

Confidential Relationships (Preservation) Law (2009 Revision), s.3(1)(b)(v): The relevant terms of this sub-paragraph are set out at para.13.

s.4(1)–(3): The relevant terms of these sub-sections are set out at para. 3.

s.4(6): The relevant terms of this sub-section are set out at para. 3.

s.4(7): The relevant terms of this sub-section are set out at para. 9.

s.5: ‘(1) Subject to section 3(2), whoever-

(a) being in possession of confidential information however obtained-

(i) divulges it; or

(ii) attempts, offers or threatens to divulge it; or

(b) wilfully obtains or attempts to obtain confidential information,

is guilty of an offence . . .

(4) Whoever being a professional person, entrusted as such with confidential information, the subject of the offence, commits an offence under subsection (1), (2) or (3) is liable to double the penalty therein prescribed.’

Confidential Relationships-application to court for directions-locus standi-English police obtaining production order under Proceeds of Crime Act 2002 for disclosure of confidential information not engaged in adjudicative activity as ‘court, tribunal or other authority’ within Confidential Relationships (Preservation) Law (2009 Revision), s.4(1)-obtaining information not ‘preliminary matter leading to proceeding’ (s.4(7)) if obtained merely to assist police investigation and no other proceeding started or envisaged

Confidential Relationships-confidential information-use of information obtained-Confidential Relationships (Preservation) Law, s.4(1) requirement that court”s directions be obtained applies only if information for use as evidence in ‘proceeding’-not applicable if no specific ‘proceeding’ started or envisaged-production order obtained in English drug trafficking investigation seeking disclosure of confidential information not ‘proceeding’ or ‘preliminary matter leading to proceeding’ if seeks disclosure merely to assist police investigation

Confidential Relationships-protection of bank”s interest-meaning of ‘interest’-protection of bank”s interest by Confidential Relationships (Preservation) Law, s.3(2)(b)(v) restricted to protection in proceedings to which bank a party-not genuine party if merely has statutory right to apply for variation or discharge of English production order for

confidential information made at instance of police conducting drug trafficking investigation

A bank with its head office in London (‘the Bank’) sought the directions of the court as to how it should respond to a production order obtained by the Metropolitan Police requiring it to disclose to a named police officer confidential information of a professional nature in respect of an account maintained at a branch of the Bank in the Islands.

In the course of carrying out a confiscation or money laundering investigation, an officer of the Metropolitan Police obtained a production order under the Proceeds of Crime Act 2002, s.345 from an English court requiring the Bank to produce to that officer ‘or other appropriate officer’ extensive and confidential documentation relating to a named account at the Bank”s branch in the Islands and any other account to which the named individual was a signatory or in which he had held an interest in the preceding six years. The information concerned professional matters arising in the Islands but the Bank also held it on its computer system in London.

The production order stated that it was an offence to prejudice a confiscation or money laundering investigation by making any disclosure about it, and the order itself directed the recipient not to disclose to anyone information which was likely to be prejudicial to the investigation. Penalties were provided for any offence or breach of the production order. It also gave the Bank the right to apply to the English court concerned at any time to vary or discharge the production order.

Since the Bank would prima facie be liable to criminal penalties if it disclosed the information without the consent of a Cayman court, it sought the court”s directions as to whether the circumstances fell within the ambit of the Confidential Relationships (Preservation) Law (2009 Revision) (‘CRPL’). Its application was made under s.4 which applied, inter alia, whenever a person was required to give confidential information in evidence in any proceeding being determined by a court, tribunal or other authority. It submitted that (a) the information was required for use in evidence in the confiscation or money laundering proceedings to be brought in England; (b) the application to the English court for the production order was itself a ‘proceeding’ within the meaning of the CPRL, s.4(7) since it was a...