Privy Council grants disclosure order against Mauritian bank

07/07/23

On 6 July 2023, the Privy Council announced its decision in Stanford Asset Holding v Afrasia Bank, an important appeal from the Supreme Court of Mauritius regarding the availability of disclosure orders against banks to parties in intended civil litigation.

The Appellants, Stanford Asset Holding and Greenway PCC, claim that they were victims of a US$11m fraud by which funds had been paid away from its bank account with the Respondent (“Afrasia”). It was common ground between the parties before the Board that such a fraud had occurred. The Appellants knew the first account into which their money had been paid, but had limited information about what had become of it after that. They therefore sought a disclosure order from Afrasia as to the destination of its funds, under ss.64(3)(h) and 64(10) of the Mauritian Banking Act 2004 and/or under Norwich Pharmacal principles.

The Supreme Court of Mauritius had refused the Appellants that relief, holding that (i) there was no power to order disclosure in favour of a private party to intended civil litigation under the Banking Act, and (ii) Norwich Pharmacal relief should be refused because the Appellants had alternative remedies available to them, and there were ongoing law enforcement investigations into the alleged fraud.

Following a hearing last month, the Privy Council today announced its decision to allow the appeal and make the disclosure order the Appellants had sought. In view of the need for the Appellants to make progress in tracing their funds and commencing substantive proceedings to recover them, the Board announced its decision in advance of the substantive judgment being prepared. In doing so, it indicated its conclusion that the Supreme Court of Mauritius had erred in its construction of the relevant legislation.

The judgment will be available here when released.