2  In what may be described as the latest developments in the legal and political controversy which has brought into question its affairs in the Republic of Ireland, Ansbacher has been made the subject of an order of the Irish High Court appointing inspectors to investigate and report upon the business it allegedly conducted in that state. The order of the Irish High Court was made upon the application of the Irish Minister for Enterprise, Trade and Employment. It was made pursuant to powers vested in the Irish High Court by s.8 of the Companies Act 1990.

3  The prerequisite to such an order stipulated by s.8 of the Irish Companies Act is that the Irish court must be satisfied that there are circumstances suggesting that the company’s affairs are or were con­ducted with intent to defraud its creditors or the creditors of another person or otherwise for a fraudulent or unlawful purpose, in an unlawful manner.

    “It is ordered that the . . . inspectors investigate and report to the court on the affairs of the company in the title hereof and in particular—

(a)    to examine and define the nature and extent of the company’s Irish business from 1971 to date, i.e. the business carried out in the State [the Republic of Ireland] or any other business carried out on behalf of Irish residents whether in the State or elsewhere;

(b)    to identify as far as possible all of the parties who are either officials (including shadow directors) and agents of the company, clients of the company, or who otherwise assisted in the carrying out of the business at the relevant time;

(c)    to examine whether the Companies Acts 1963–1990 were breached by the company, its officers (including shadow directors), agents or third parties at the relevant time and if so to identify the provisions involved and the persons in default in each case;

(d)    to examine whether the affairs of the company were conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose and if so to identify the statutory provisions involved and the person in default in each case; and

(e)    to report on any related matters.”

6  Ansbacher does not accept that the Irish High Court had the jurisdiction to make this order in respect of it. Ansbacher asserts that it has never carried on business in Ireland and did not do so at the time the order was made. It certainly is not an Irish company. None the less, Ansbacher, having received notice of the order of the Irish High Court, deems it to be in its own interest to co-operate with the inspectors in their enquiries and intends to do so by disclosing certain confidential information held in respect of its Irish-resident clients.

7  Whatever the legalities of the inspectors’ inquiry may be, there are serious reputational and other business risks arising from an adverse report which Ansbacher wishes to avoid. These will need to be examined in more detail below.

8  As the confidential information intended to be disclosed is acknow­ledged to be governed by the Confidential Relationships (Preservation) Law (“the CR(P)L”), Ansbacher could lawfully disclose it in only three sets of circumstances. First, with the consent of its customers. Although Mr. Jones surmised that a considerable number of the clients would not object, Ansbacher does not have their expressed consent. The second circumstance would be pursuant to s.3(2)(b)(v) of the CR(P)L on the basis, as that sub-paragraph provides, that—

“this Law has no application to the seeking, divulging or obtaining of confidential information—

. . .

(b)    by or to—

. . .

(v)    a bank in any proceedings, cause or matter when and to the extent to which it is reasonably necessary for the protection of the bank’s interest, either as against its customers or as against third parties in respect of transactions of the bank for, or with, its customer. . .”

9  Mr. Jones, for Ansbacher, at one stage sought to rely on this provision in his application for a declaration that Ansbacher was entitled to disclose the information pursuant to it. That argument was, however, in my view properly withdrawn during the course of the proceedings before me.

10  In light of the requirements of s.3(2)(b)(v), Mr. Jones would have had to overcome the real difficulty of establishing that the inquiry for which the inspectors have been appointed comes within its provisions. Among other issues decided in Att. Gen. v. Bank of Nova Scotia (2), it was held that the only interest which a bank was entitled to protect under the provisions of s.3(2)(b)(v) was in respect of its transactions for or with its customers, and that those provisions did not apply to proceedings in a foreign court.

11  These are issues upon which there are conflicting decisions of this court such as Att. Gen. v. Bank of Nova Scotia (1984–85 CILR at 429–430) and In re Bank of Credit & Commerce Intl. (Overseas) Ltd. (3). In the latter it was held that s.3(2)(b)(v) included foreign proceedings and included proceedings in which a bank may be involved opposite third parties in respect of transactions it had for or with its customers. Although

12  As to what the confines of s.3(2)(b)(v) are, it is to be borne in mind that its provisions have their genesis in the Tournier case (16), which is discussed further below and, in my view, was also carefully and properly analyzed in the later of two cases. But whichever of the two constructions of s.3(2)(b)(v) one prefers, I do not see how the inspectors’ inquiry before the Irish High Court could come within it.

13  The third circumstance—the final ground of Ansbacher’s summons and that relied upon by Mr. Jones—is that the inspectors’ appointment, and the process before the Irish High Court within which it was ordered, constitute “proceedings” within the meaning of s.4(1) of the CR(P)L. Furthermore, it is within such proceedings that Ansbacher intends to give in evidence the particular confidential information that it holds about the affairs of its Irish-resident customers, and it has a legitimate interest to protect in so doing.

14  Before Ansbacher might lawfully do so, s.4(1) provides that it must first apply for directions from this court. Hence this application. The application was supported by counsel who appeared for the inspectors. Significantly, it also obtained qualified support from the Attorney General, who made submissions through Mr. Hall-Jones as amicus curiae. Ansbacher was, however, opposed by the other counsel who appeared on behalf of certain of Ansbacher’s clients who would be affected by the disclosure.

15  A primary legal ground for their objection is that this court has no jurisdiction to give directions, because the inspectors’ inquiry for the purposes of which Ansbacher proposes to disclose the confidential information does not constitute “proceedings” within the meaning of s.4(1) of the CR(P)L. I will come later on to express my conclusions on this fundamental issue of jurisdiction.

    1. Concerning the fundamental issue of this court’s jurisdiction to give the directions sought:

(a)    Does what Ansbacher proposes to do amount to “giving in evidence” within the meaning of s.4 of the CR(P)L?

(b)    Is Ansbacher required to justify its intention to disclose the information as being objectively and realistically necessary for the protection of its interests?

(c)    In considering what order to make under s.4 of the CR(P)L, must the court be satisfied that the nature of the proceedings in which disclosure is to be made is such as to fall within the context of s.4(6) and if so, which provision of that sub-section?

    2. It is an abuse of process for Ansbacher to bring the application in seeking to obtain a collateral advantage for itself vis-à-vis its clients without regard to the common law or the equitable duty of confidentiality owed to them, and to seek to do so in order to assist an investigation the legitimacy of which Ansbacher does not accept. Further, it is an abuse of process to do so to facilitate the oppressive and inappropriate procedure adopted by the inspectors.

    3. The ambit of the inquiry—“to identify as far as possible all of . . . the Irish resident clients of (ACL)” with whom Ansbacher conducted business whether within the Irish State or elsewhere—is tantamount to a “fishing expedition” and therefore disclosure in aid of it would be impermissible at common law.

    4. To the extent that the inspectors’ inquiry flowing from the order of the Irish High Court was intended to determine whether, and if so to what extent, Ansbacher assisted its Irish-resident clients to evade Irish taxes, the inquiry seeks to enforce foreign revenue laws, and so the rendering of assistance to the inspectors would be in breach of settled common law principles and public policy. (In this context it is important to note that apart from the Irish Revenue no other defrauded creditor (putative or other­wise) has been identified as a possible subject of the inspectors’ inquiry.)

    5. As Ansbacher is motivated by fear of possible reprisals inimical to its interests arising from an adverse report from the inspectors, it would in effect be capitulating to threats and it is contrary to Cayman policy in such circumstances to allow disclosure of confidential information belonging to clients who have been shown to do nothing wrong.

    6. Finally, and as a matter of general principle: Does a direction for disclosure under s.4 of the CR(P)L absolve a professional person from civil liability for a breach of confidence? If so, is that a fact which this court should consider in the exercise of its discretion?

17  I will also come to consider each of these grounds of objection in turn in the discussion which follows. Before so doing, it is, however, necessary to set out more of the background to Ansbacher’s application for the full context.

18  The series of events which give rise to Ansbacher’s application began in 1997, prompted by a shareholders’ dispute amongst members of

19  When news of the alleged Dunne payments became public, the response of the Irish Parliament was to establish the McCracken Tribunal of Inquiry with the mandate to its sole member, Mr. Justice Brian McCracken, to inquire and to report to Parliament. In finding that the Dunne payments were in fact made, Mr. Justice McCracken reported that some IRL£1.1m. was ultimately paid for the benefit of Mr. Haughey through a Mr. Desmond Traynor, who was at the time chairman of Ansbacher and Chief Executive of Guinness & Mahon (Ireland) Ltd. The payments had been made into accounts which Ansbacher (then GMCT) held in Dublin with Guinness & Mahon (its parent) and with Irish Intercontinental Bank.

20  The McCracken Report also found that Ansbacher, through its chairman Mr. Traynor, operated accounts on behalf of a number of Irish persons who wished to deposit moneys offshore. While the McCracken Report did not conclude that separate accounts were held on behalf of each Irish client, it did conclude that by some form of internal accounting or “memorandum accounting” which Mr. Traynor personally oversaw and maintained, Ansbacher was able to maintain accounts on behalf of Irish clients—archetypally the Dunne accounts—which it held with Guinness & Mahon (Ireland) Ltd. and with Irish Intercontinental Bank.

21  This conclusion Ansbacher regards as unfortunate, as it came about without the benefit of what Ansbacher would describe as a proper understanding of its entirely regular and normal business relationship with its Irish clients and with its parent bank in Dublin. This is what Mr. Jones described as “laying off” deposits in the ordinary course of business with a parent bank, and properly so, irrespective of whether the funds might have originated in Ireland.

22  When Desmond Traynor died in 1994, and well before the Dunne payments became public knowledge, the documents relating to certain of the Ansbacher accounts were either destroyed or brought to the Cayman Islands by Mr. John Furze. Mr. Furze had been co-chairman, along with Mr. Traynor, of Ansbacher and, it appears, had been responsible at the Cayman end for the Ansbacher accounts. John Furze subsequently retired from the board of Ansbacher and became involved in the administration of two trust management companies in the Cayman Islands called

23  Ansbacher retained its records of the Hamilton Ross and Poinciana accounts and they are among those which it would seek to disclose now. Hamilton Ross and Poinciana object to Ansbacher’s application. The circumstances under which they were allegedly created, the controversial subject-matter of political corruption involved in the McCracken Inquiry, the concern that they were vehicles used by the wealthy for the evasion of Irish income tax and the cloak of secrecy surrounding them are all factors which have served to make the so-called “Ansbacher accounts” the subject of wide-spread public interest and debate in Ireland. The findings of the McCracken Tribunal generated a vast amount of publicity in Ireland and the identification of the people who had “Ansbacher accounts” has become a national issue.

24  In so far as the Ansbacher accounts related to the specific subject-matter of its inquiries, the McCracken Tribunal sought the assistance of this court by letter of request for the production of information. For the reasons that the McCracken Tribunal was only investigatory and not adjudicatory, fully explained in In re Dunne’s Payments (9), this court (Patterson, Ag. J.), did not accede to the request. Ansbacher did not, therefore, give any evidence pursuant to that request.

25  By way of its response to the McCracken Report on the “Ansbacher accounts,” the Irish Parliament commissioned the Moriarty Tribunal, having similar terms of reference to McCracken, but specifically also to investigate whether the “Ansbacher accounts” were used for making corrupt payments to Irish officials. The Moriarty Tribunal has not yet reported. That tribunal asked Ansbacher to provide information but Ansbacher has declined to respond without an order of this court per­mitting it to disclose. The Moriarty Tribunal has not sent a request for assistance to this court, presumably having regard to the outcome of the McCracken Tribunal’s request.

26  A further development in Ireland was the appointment in January 1998 of an officer authorized by the Minister for Enterprise, Trade and Employment pursuant to s.19 of the Irish Companies Act 1990 to investi­gate the affairs of Ansbacher. In his report, the Authorized Officer accused Ansbacher of carrying on business in Ireland without a licence and of having conspired with certain of its clients to defraud the Irish Revenue.

27  In response, on May 13th, 1998 Ansbacher applied to this court for directions under s.4 of the CR(P)L that it might disclose confidential information to the Authorized Officer. However, in doing so Ansbacher asserted that the Irish Minister had no jurisdiction over it and that the mandate of the Authorized Officer had not been effectively served upon it. This court therefore found that Ansbacher had not been “required” to give confidential information in evidence within the meaning of s.4, and refused to give the directions sought (see 1998 CILR 169).

28  The subsequent appointment of the inspectors by the Irish High Court has been supported by a letter of request from that court to this which is the subject of extant proceedings in Cause No. 755 of 2000. That letter of request seeks disclosure of information in terms consistent with the very wide mandate of the inspectors’ appointment. With the leave of this court and by the consent of the inspectors, that cause has been adjourned in deference to the present application made by Ansbacher.

29  Ansbacher has taken the view that Cause No. 755 of 2000 would not succeed in any event, as the request of the Irish High Court would not meet the strict requirements either of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters or of the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. In his affidavit filed on behalf of Ansbacher in Cause No. 755 of 2000, Mr. Bryan Bothwell, its current managing director, explained why Ansbacher would have been obliged to oppose the letter of request. Three main grounds are explained:

    “1. The letter of request is not in furtherance of proceedings within the meaning of the Hague Convention on the Taking of Evidence Abroad.

    2. The letter of request is framed in exceptionally broad terms, seeking as it does all information about all of Ansbacher’s ‘Irish clients’ or clients having ‘Irish connections.’ Compliance would be enormously time-consuming and expensive for Ansbacher and would therefore be oppressive.

    3. Even if gathering information as part of the inspectors’ investigations is a legitimate purpose of a letter of request, the nature and breadth of the request is such that it must be regarded as a ‘fishing expedition’ and must therefore be impermissible.”

30  It must follow from the view that Ansbacher takes of the letter of request that to the extent that it seeks directions permitting disclosure in its present application, it could only properly do so if it considered that its application under s.4 of the CR(P)L avoided similar grounds for objection. By reference to a specific number of files it has selected and would seek to disclose, and the particularized information from them, Mr.

32  Mr. Jones acknowledged that before Ansbacher may obtain the directions it seeks pursuant to s.4 of the CR(P)L, it must show that it has a legitimate interest to protect in its intention to give the confidential information of its clients in evidence. This must be correct. There must be shown to be some interest which the Law would regard as important and defensible before this court may, in the exercise of its discretion, allow the duties of the confidence owed to clients to be set aside.

33  Notwithstanding the consistent theme of the different enquiries alleging or suggesting that Ansbacher, through its former Chief Executive Desmond Traynor, assisted clients to defraud the Irish Revenue, Ansbacher denies this. Its position is that its business was always conducted properly through its parent or correspondent banks in Ireland and that it did not itself carry on banking business in Ireland. Ansbacher asserts that if it thought it needed to carry on banking in Ireland, it would no doubt readily have been granted a licence to do so, since it was, at the material times, a wholly-owned subsidiary of a reputable and well-established Irish bank. The Irish clients, with whom it conducted only legitimate business, were its clients and it was a Cayman bank carrying on business as such. This was notwithstanding that it may have main­tained deposit accounts, involving their moneys, with its parent bank in Ireland. The arrangements with its parent bank in Ireland were a matter of record with the Irish regulators and so there was nothing “covert” about them.

34  Mr. Jones said that Ansbacher regards and has always regarded it as a matter for its individual clients to make their appropriate tax returns. Whilst it appears that a number of individual clients may have been friends or business associates of Desmond Traynor, if it were to be proved that he actively assisted any of them to evade Irish income tax, he was not acting on behalf of Ansbacher, but on a frolic of his own.

35  Mr. Jones none the less acknowledged that the purposes for which the inspectors were appointed, and not only Ansbacher’s interests, are important for the purposes of the public policy issues which arise for consideration by this court upon an application under s.4 of the CR(P)L.

36  The fact that the inspectors are required to identify all of Ans­bacher’s Irish-resident clients without regard to whether any specific allegations exist against any of them is therefore an important matter for consideration, despite the selective basis upon which Ansbacher would seek to disclose their information. And while the inspectors are appointed to investigate the unlawful business that Ansbacher allegedly carried on in Ireland for Irish-resident clients from the date of Ansbacher’s inception in 1971 until the present, that activity would have ceased at the latest upon Mr. Traynor’s death in 1994. This, then, also brings into question the appropriateness of disclosing the identity of clients who became clients after 1994. Indeed, as the attorneys for the objectors submitted, if the remit of the inspectors’ investigations is to be confined to the nature of Ansbacher’s business activity, there is no apparent need to identify individual clients at all. Ansbacher should be able “in its own interest,” as it puts it, to demon­strate from its records the true nature of the business it conducted on behalf of its Irish clients without having to reveal their identities.

37  That, however, from the wide terms of the order of the Irish High Court as it stands, is not what the inspectors will be able to accept. Nor was it how Mr. Jones finally put his case. He argued that the identities should be revealed subject to conditions and that Ansbacher has an interest in revealing them, as it believes many of the clients’ accounts to be revealed will confirm Ansbacher’s general assertion that it conducted its business with clients in an entirely lawful and appropriate manner. He finally argued for a form of directions permitting this but leaving it to the Irish High Court to decide whether it would accept such conditions as I might properly impose to prevent abuse of the information for collateral purposes.

38  While Mr. Bueno, Q.C., for his part, on behalf of the inspectors, steadfastly asserted that the inspectors’ inquiry was indeed only about Ansbacher’s business in Ireland—not about prosecuting anyone for tax fraud—he equally earnestly argued that the inspectors must have the identities of the clients in order to interview them about the nature of the business Ansbacher conducted on their behalf. He emphasized that without the information about the identities of the clients, the inspectors would not be able to fulfil their remit.

39  I must also, therefore, bear in mind that under the Irish Companies Act, a copy of the inspectors’ report to be submitted to the Irish High Court following their investigations must be provided also to the Irish Minister who applied for their appointment. Without in any way imputing impropriety, this court would then have no means of vouchsafing the subsequent confidentiality or use of the information to be disclosed in the inspectors’ report, unless the Irish High Court agrees to order restrictions against collateral abuse. As matters stand, I have no basis for thinking that the Irish High Court would make such an order. The Irish Minister and others who may obtain copies would therefore be under no obligation as to the extent to which they might legally deploy the information obtained.

40  The clients to whom the information belongs, and in particular those who appeared before me to object, invited me to consider their concerns about one consequence in particular, namely, the probable widespread publication of their identities as Ansbacher account-holders. Even if their tax affairs in Ireland all proved to be in order, the very fact of publication of their names in association with the Ansbacher accounts could have severe implications for their privacy and for their personal reputations. The fear is of the presumption of guilt by association and of having to endure expensive inquisitorial or legal proceedings in order to clear their names. Already, from the media reports in Ireland about the findings of the McCracken Tribunal and about these very proceedings before this court, such concerns might not be regarded as being unfounded. The following excerpts speak for themselves:

    “Finance Minister Charlie McCraevy yesterday warned the Ansbacher account-holders that they faced jail for tax evasion. He said the names of the 120 account-holders of the Ansbacher accounts will probably be made public when the High Court inspectors make their report. . . . ‘It is quite likely that during the course of the inspectorate the names of all these will be released to the public,’ the Minister said.”

That was taken from The Irish Independent of Saturday, September 25th, 1999. In The Irish Times of October 2nd, 1999, the Irish Prime Minister is reported as saying “In the final report of the Irish court [the identity] of those people will have to be made clear to the Irish people.” In The Irish Times of Thursday, September 23rd, 1999, this commentary appeared upon the hearing before the Irish High Court for the appointment of the inspectors:

    “There has been much speculation over the past year or two about how the Ansbacher deposits operated and the identity of the beneficiaries. The information set before the court yesterday fills in many of the gaps and suggests a tax evasion operation larger than previously uncovered and operated in a very sophisticated way. At

    The Ansbacher accounts might never have come to light but for a name on a cheque written by Ben Dunne. Des Traynor arranged for Mr. Dunne to route payments to Charles Haughey through John Furze. Mr. Furze, who died in 1997, worked for Guinness & Mahon and Ansbacher in the Cayman Islands. This provided the crucial link for the investigators of the McCracken Tribunal, who discovered that the money was routed back into an account held by the Cayman Islands bank in Guinness & Mahon, Dublin, the bank where Des Traynor was deputy chairman for many years. And, by the way, the McCracken team mentioned in passing, these accounts totalled as much as £38m. and appeared also to have been used by many Irish individuals to evade tax.

    Now we know that at least £50m. was involved and possibly much much more, and three High Court inspectors are to investigate the affairs of Ansbacher (Cayman) in Ireland.

    The business of the bank was operated in a very sophisticated way by Mr. Traynor but the essence of the schemes it used was simple enough. Depositors—keen to hide money from the Revenue Commissioners—routed their funds offshore to Ansbacher (Cayman). . .”

And, from The Irish Times of August 27th, 1997:

    “The response of the Revenue Commissioners to the report of the McCracken Tribunal will have far-reaching implications for the credibility of the tax system. The report concluded that the offshore routes through which both Mr. Haughey and Mr. Lowry [another Minister of Government at the time] received money from Mr. Ben Dunne were designed to hide money from the Revenue Com­mis­sioners. . . . Finally, some way must be found to discover—if at all possible—what other Irish residents had money hidden in the so-called Ansbacher deposits, the offshore accounts which held as much as £38m. at one stage. . .”

And, most recently, from The Irish Times of April 11th, 2001:

    “The case currently before the Cayman courts could see a fresh wave of information flood into the Irish jurisdiction and any party having dealings with the Revenue in a less than frank way could find him or herself in a very awkward position, to say the least.

    It seems that some parties who also stand to be affected should the disclosure of information from Ansbacher (Cayman) go ahead

41  Against that backdrop, counsel for the objectors pointed to the likelihood that the very disclosure in the public domain that an Irish resident holds or has held an Ansbacher account would be sufficient to create the prejudicial presumption of tax fraud. While they insist on their innocence of any such wrongdoing, the clients—some of them being prominent and recognizable public personas—believe that they would suffer harm to their reputations and perhaps even loss of business opportunities.

42  Ansbacher recognizes their concerns and accepts that the directions it seeks are a matter for the exercise of judicial discretion under s.4 of the CR(P)L. None the less, Ansbacher invites me to regard the risks which it must confront if it fails to co-operate with the inspectors as outweighing the risks described by the clients if, indeed, as they insist, they are not guilty of any wrongdoing under Irish law. Ansbacher argues that the risks it faces include a possible order for its winding up by the Irish High Court or other remedial orders pursuant to s.12 of the Irish Companies Act, as that court may deem fit. Such orders could arguably include an order for the costs incurred by the inspectors or even, taken at the extreme, for the payment of any amount of tax assessed to have been defrauded from the Irish Revenue by clients.

43  Mr. Jones thus found himself in the unenviable position of having to assert the possibility of such risks, as the basis for showing Ansbacher’s interest to be reasonably protected by its disclosure of confidential information, whilst at the same time asserting that Ansbacher is not and never has been itself amenable to the jurisdiction of the Irish High Court. Ansbacher maintains it never did—and, by any view of the matter, certainly does not now—have a presence in Ireland such as to render it subject to the orders of the courts of that jurisdiction.

44  With this latter assertion to support them, the objectors argue that the risks perceived by Ansbacher are therefore illusory. As it is not subject to the jurisdiction of the Irish High Court, Ansbacher cannot be the subject of any order, let alone a penal order of that court. The objectors cite and rely upon the affidavit filed in these proceedings by Mr. Brian O’Moore, Irish counsel to one of Ansbacher’s clients who objects. His opinion is to

    “Where a company incorporated outside the State which has been carrying on business in the State ceases to carry on business in the State, it may be wound up as an unregistered company under this Part, notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.”

If, contrary to Ansbacher’s own assertions, the inspectors were to con­clude that it did carry on business in Ireland through the activities of the late Mr. Traynor (and his former colleague, one Mr. Padraig Collery), Ansbacher’s concern would be that the Irish High Court might be moved to exercise this statutory power and purport to wind it up by order. Even though such an order would have no legal effect upon Ansbacher as a Cayman bank having no physical presence in Ireland, the fact of its existence could carry serious consequences for Ansbacher’s reputation worldwide and its ability to do business as a subsidiary, which it now is, of a reputable global bank. Mr. O’Moore’s opinion is that in the absence of any Irish judicial authority on the meaning and effect of s.345(7) of the Irish Act, the Irish courts would probably accept as persuasive the approach taken by the English courts in respect of the equivalent English legislation.

46  That approach is comprehensively stated in a judgment of the English Court of Appeal in Banque des Marchands de Moscou (Koupetschesky) v. Kindersley (5). There, Evershed, M.R., in defining the prerequisites for an order of the English court seeking to wind up a foreign company, stated ([1951] Ch. at 125–126) that—

“as a matter of general principle, our courts would not assume, and Parliament should not be taken to have intended to confer, juris­diction over matters which naturally and properly lie within the competence of the courts of other countries. There must be assets [in the English jurisdiction] to administer and persons subject, or at least submitting, to the jurisdiction who are concerned or interested in the proper distributions of the assets. . .

    The existence of assets here, the presence here of persons claiming as creditors of the bank or said to be indebted to it, seem to constitute at least the indicia of a business in some sense formerly conducted here.”

47  While I need not be satisfied, for present purposes, as to the manner in which the Irish courts would determine the issue of Ansbacher’s

48  I do not regard it as appropriate for me to approach the exercise of my discretion in this matter on the basis of any hypothesis other than that the Irish High Court will exercise its powers properly within the bounds of the statutes which confer them. I none the less accept that there are real and serious reputational risks to Ansbacher from any finding of wrong­doing—especially of complicity in tax fraud—which might emanate from the inspectors’ report or from the conclusions of the Irish High Court.

49  The jurisdiction of the Irish High Court to appoint the inspectors to inquire into Ansbacher’s affairs has not been challenged, and the order of that court stands. So, notwithstanding Mr. Alberga, Q.C.’s trenchant observa­tion that Ansbacher’s reputation in Ireland is “irretrievably in tatters,” I accept that Ansbacher’s objective of co-operating in the hope of avoiding an adverse report is a reasonable and legitimate interest which Ansbacher might assert to justify the bringing of this application for its protection. That, however, is far from concluding that Ansbacher has satisfied this court that its application should be allowed.

50  As for the likely consequences to the clients, I have already remarked on the stated inability of the inspectors—although they par­ticipated in these proceedings and are thus amenable to this court’s juris­diction—to give any undertaking to this court, without leave of the Irish High Court, that the confidential information, once disclosed, might not be used against any Ansbacher client for a collateral purpose not relied upon here, such as prosecution for criminal tax evasion. Concerns are also mentioned about possible exchange control violations. The industry of counsel brought to light other statutory provisions in Ireland under which other courts and authorities—such as the District Courts and the Irish Revenue—may be able to compel production of the confidential information once it is made available to the inspectors.

51  These are important matters to be factored into the exercise of the discretion. Such collateral purposes form no part of the basis upon which Ansbacher makes this application and would therefore be an abuse of any

52  All the parties before me sought to advance views as to the current Cayman public policy approach to disclosure of confidential information in circumstances such as those presented upon this application. Mr. Jones and Mr. Bueno both submitted that there was no public policy reason for preventing Ansbacher’s co-operation with the inspectors, who had been appointed by a competent court of a friendly foreign state to which the obligations of comity are owed. Clients of Ansbacher who had done nothing wrong in Ireland had nothing to fear. Mr. Jones pointed out that a number of Ansbacher’s Irish clients were already known to the inspectors and were already co-operating with them. Some others had no objection to disclosure and still others, if asked to express a view, might not object. It was therefore instructive, he submitted, that while most, if not all, of the clients must know about this application from the extensive coverage in the Irish media, only those who actually appear in these proceedings are sufficiently concerned to object.

53  As for that rather hypothetical view, the approach I take is rather that if the clients do not object, one would expect them to come forward and expressly say so. This is the only approach which is consistent with the penal sanctions which the CR(P)L imposes where there is unauthorized disclosure. The clients are entitled to assume that their interests would be fully considered by this court before disclosure could be directed. To that end, I have had the benefit of the very able arguments of counsel for and against disclosure.

54  Mr. Jones and Mr. Bueno also laid emphasis upon the advice given by the Attorney General, in his role as amicus, upon the matter of Cayman public policy. Because the Attorney General is non-partisan and has a peculiar perspective and role as Law Officer to the Government, his views on these matters are, of course, to be taken into consideration. This is none the less so—but perhaps even more so—for the purpose of considering the views of the objectors expressed to the contrary.

55  In the written advice of the Attorney General tendered on his behalf by Senior Crown Counsel, he sets out the parameters for his advice:

    “1. The Attorney General notes the order made by the High Court in Ireland dated September 22nd, 1999 and in particular the [aspects of] that order as to the purpose of the appointment of the inspectors and the terms of that appointment. . .

    2. The Attorney General advises the court that it is in the public interest for the Grand Court to assist the inspectors to discharge their functions under Irish law. Such assistance is in keeping with the Cayman Islands’ commitments to the principles of judicial comity and mutual legal assistance.”

56  With those principles in mind, the Attorney General goes on to express the view that the circumstances of the Minister’s application to the Irish High Court and giving rise to the inspectors’ appointment are to be considered to be “proceedings” for the purposes of Ansbacher’s application under s.4 of the CR(P)L. This goes to the fundamental question of this court’s jurisdiction to hear and grant Ansbacher’s application and will be dealt with in detail later on. The Attorney General goes on to advise that Ansbacher should be directed to disclose the in­formation to the inspectors in keeping with their mandate given by the order of the Irish High Court but subject to conditions to be imposed. This, the Attorney General advises, “may involve the inspectors seeking an assurance from the Irish High Court that the confidentiality of legitimate depositors will be respected.”

57  As I understand it, this advice recognizes two important principles. The first is the established principle that requires the protection of the confidentiality of a client’s legitimate financial affairs in his dealings with a financial institution. The second is the requirement that this court should not lend its assistance to enable unparticularized requests designed to enable “fishing expeditions” for possible collateral purposes. In the context of this case, improper collateral purposes to be avoided by the conditions suggested by the Attorney General would include, for example, information disclosed only to aid in the inspectors’ inquiry being used instead to mount investigations or prosecutions for tax evasion or to institute tax claims.

58  Despite these concerns raised by the objectors and reiterated by the Attorney General, it soon became plain from a written submission handed up on behalf of the inspectors that the practicability of the Attorney General’s advice was not to be achieved. The inspectors’ final position, stated in writing, was that they would be unable to provide any assurance that the confidentiality of the information could be protected in the manner proposed. As they were mandated in terms of the order of

59  A further obstacle to the practical implementation of the Attorney General’s advice would be the basis for identifying the “legitimate depositors” who are to benefit from the conditions which he proposed for their protection. The difficulty would be that, as a matter of Cayman law, there is no basis for supposing other than that all of the putative Irish clients would be “legitimate depositors.” There is no requirement under Cayman law which would allow this court to have regard to breaches, let alone mere suspicions of breaches, of foreign revenue laws, so as to arrive at a contrary view of anyone’s status as a depositor.

60  It is not to be forgotten that there has been no allegation of tax evasion or even tax avoidance against any particular client brought to my attention as the basis for this application. There is no allegation of any creditor having been defrauded and there are the reasonable suppositions of counsel for the objectors that the only possible creditor contemplated by the order of the Irish High Court would be the Irish Revenue. There is therefore no basis for placing Ansbacher’s Irish resident clients into two categories of “legitimate” and “not legitimate” for the purpose of conditions in favour of the former but not the latter.

61  In seeking a further understanding of the Attorney General’s advice, I invited Mr. Hall-Jones to explain why it was that in the circumstances of this case the Grand Court, as he had submitted, “should regard it as being in the public interest to assist the inspectors to discharge their functions under Irish law.” He then explained that the view the Attorney General takes is that the procedure adopted by the Irish Minister and the subsequent appointment of the inspectors by the Irish High Court exercising powers under the Companies Act is similar to functions discharged in relation to banks in this jurisdiction by the Cayman Islands Monetary Authority under the Monetary Authority Law. That would therefore bring the Irish Minister and the procedure adopted there within the broad meaning of an “overseas regulatory authority” in the meaning of the Monetary Authority Law, for the purposes of international mutual legal assistance. It is now Cayman Government policy that mutual legal assist­ance in regulatory matters should be afforded where appropriate, and moreover, this policy is consistent with public pronouncements which the Cayman Government has made in relation to the global initiatives of the Organization for Economic Co-operation and Development (“OECD”) and the Financial Action Task Force of the G7 Nations (“FATF”).

62  In further written submissions, Mr. Hall-Jones later explained that the Attorney General’s views were not to be taken as arguing for a true

63  An analogy between the Cayman Islands Monetary Authority as a regulatory authority and the inspectors appointed by the Irish High Court would be strained and inappropriate. The latter do not perform regulatory functions; they have been appointed to conduct an investigation and to report to the Irish High Court. Neither the Minister who sought their appointment nor the Irish High Court itself can be described as a regulator analogous to the Cayman Islands Monetary Authority. The Monetary Authority Law, in its recognition of an overseas regulatory authority, must be taken as contemplating a body which is a standing authority carrying out similar regulatory functions, not an ad hoc appointment by a Minister of Government or by a court for a specific purpose the completion of which will mark the end of the appointment and the expiry of the body. I think this is plain from s.2 of the Monetary Authority Law. I must also note that the present matter is not before this court by way of a request to the Cayman Islands Monetary Authority from the Irish Minister or High Court. The provisions of the Monetary Authority Law do not apply.

64  My approach to the public policy concerns arising from this matter must be based on the applicable law of the Cayman Islands as it stands. And within the confines of the law, I am obliged to consider the material put before the court. With those considerations in mind, I have no difficulty in concluding that the public policy interests remain as they have always been and as embodied in the clear and useful codification of the CR(P)L. While the confidential information about the affairs of persons doing business in and from the Islands is required to be protected, the protection afforded by the Law is not absolute. Disclosure will be allowed where it is appropriate to ensure that justice is done in disputes between persons and where the enforcement of the criminal law and the administration of justice—whether here or overseas—requires that disclosure be allowed.

65  The law and policy of the Cayman Islands recognize that the ends of justice and the requirements of law enforcement towards those ends can assume many different forms and the requirements will vary from state to state. Cayman public policy nevertheless requires, and the local laws are designed and construed so as to afford, assistance in all appropriate cases. The disclosure of confidential information has been allowed and directed by this court in numerous cases, involving many different countries and many different legal issues and circumstances. Extra-judicial assistance

66  One principle has, however, always remained constant here, as it has in all countries which share our common law heritage: The law is not premised upon any presumption of wrongdoing. There must at least be specific and provable allegations of civil liability or criminal wrongdoing against a person before confidential information about his affairs may be divulged without his consent by someone owing him a duty of confidentiality. This is the minimum standard that applies even when matters are at the investigatory stages. It follows that this court must stand ready the more so to reject any request for disclosure which may proceed upon a presumption that the mere fact of doing business with a Cayman financial institution points to some reproachable objective such as tax evasion.

67  Some of Mr. Bueno’s submissions on behalf of the inspectors were not entirely devoid of such connotations. In advocating a view of public policy which would permit of Ansbacher’s application for disclosure, he had this to say:

    “What is offensive from the standpoint of the Irish state is that an overseas bank has operated to evade Irish revenue laws—that is the allegation against Ansbacher. What we are saying is that if Cayman public policy is construed in a way which prevents the company being properly investigated by examination of its customers, that could be construed as turning a blind eye to the fact that the revenue frauds have been carried out.”

68  I do not know whether there are provable cases of tax evasion against any of Ansbacher’s clients whose identities have already been revealed to the authorities. Nevertheless, in the absence of a single specific allegation or showing of wrongdoing against any of the Ansbacher clients who would be affected by my directions, Mr. Bueno’s submissions did carry the very connotation of presumption of wrongdoing which I am obliged to reject. Furthermore, as Mr. McCahill submitted, notwithstanding the publication of statements of policy commitment to external agencies such as the OECD on tax enforcement, no change of policy of which this court is at this point in time aware could be prayed in aid to any different conclusion in this case.

69  Having expressed those findings as to the nature of Cayman public policy as it relates to these and proceedings of this kind, I must now turn to consider the matters of jurisdiction and discretion. This will involve a consideration of the nature and purpose of the inspectors’ appointment, the use to which the information which they might receive is to be put and the reason why Ansbacher seeks to comply.

70  Mr. Todd, Q.C. brought my attention to the recent House of Lords decision in Prince Jefri Bolkiah v. KPMG (7). There the principle was reaffirmed that confidential information about the affairs of a client coming into the hands of a fiduciary remains the property of the client even after the determination of the fiduciary relationship. With that principle in mind, the intention of Ansbacher to disclose their information without the consent of the clients, present and former, must be a very strong factor to be borne in mind.

71  I have already described the jurisdictional issue: Is the inspectors’ inquiry to be regarded as coming within the meaning of “proceedings” for the purposes of s.4 of the CR(P)L? This is a question that must be firmly and clearly answered in the affirmative before I might in any way accede to Ansbacher’s application. The CR(P)L is penal in nature and so its technical mandatory requirements must be strictly construed. As this court observed in the earlier proceedings (1998 CILR at 177), in ana­lyzing the circumstances of any particular case for the purpose of ascertaining its jurisdiction under this statute, the court must be fully satisfied before it will assume jurisdiction. It will not “grasp at jurisdiction.”

72  Just about all of the provisions of s.4 of the CR(P)L are implicated in this matter. The full terms of the section are therefore reproduced here:

    “(1) Whenever a person intends or is required to give in evidence in, or in connection with, any proceeding being tried, inquired into or determined by any court, tribunal or other authority (whether within or without the Islands) any confidential information within the meaning of this Law, he shall before so doing apply for directions and any adjournment necessary for that purpose may be granted.

    (2) Application for directions under subsection (1) shall be made to, and be heard and determined by, a Judge of the Grand Court sitting alone and in camera. At least seven days’ notice of any such application shall be given to the Attorney-General and, if the Judge so orders, to any person in the Islands who is a party to the proceedings in question. The Attorney-General may appear as amicus curiae at the hearing of any such application and any party on whom notice has been served as aforesaid shall be entitled to be heard thereon, either personally or by counsel.

    (3) Upon hearing an application under subsection (2), a Judge shall direct—

(a)    that the evidence be given;

(b)    that the evidence shall not be given; or

(c)    that the evidence be given subject to conditions which he may specify whereby the confidentiality of the information is safeguarded.

    (4) In order to safeguard the confidentiality of a statement, answer or testimony ordered to be given under subsection (3)(c), a Judge may order—

(a)    divulgence of the statement, answer or testimony to be restricted to certain named persons;

(b)    evidence to be taken in camera; and

(c)    reference to the names, addresses and descriptions of any particular persons to be by alphabetical letters, numbers or symbols representing such persons the key to which shall be restricted to persons named by him.

    (5) Every person receiving confidential information by operation of subsection (2) is as fully bound by this Law as if such information had been entrusted to him in confidence by a principal.

    (6) In considering what order to make under this section, a Judge shall have regard to—

(a)    whether such order would operate as a denial of the rights of any person in the enforcement of a just claim;

(b)    any offer of compensation or indemnity made to any person desiring to enforce a claim by any person having an interest in the preservation of secrecy under this Law; and

(c)    in any criminal case, the requirements of the interests of justice.

    (7) In this section, unless the context otherwise requires—

‘court’ bears the meaning ascribed to it in section 2 of the Evidence Law;

‘given in evidence’ and its cognates means make a statement, answer an interrogatory or testify during or for the purposes of any proceeding; and

‘proceeding’ means any court proceeding, civil or criminal and includes a preliminary or interlocutory matter leading to or arising out of a proceeding.”

73  The argument raised by counsel for the objectors that the inspectors’ inquiry does not come within that definition of “proceeding” is premised

74  That the power to adjudicate is a necessary appurtenance of a body before it might qualify as a court or tribunal for the purposes of mutual legal assistance is a well-established principle of international law and comity. It is a principle which has been applied in the construction of the statutory provisions which give force in these Islands to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: see, e.g. the earlier related judgment in In re Dunne’s Payments (9) where the McCracken Tribunal was found to be exercising only an investigatory, not an adjudicatory, role.

75  Section 4 of the CR(P)L is, however, intended to regulate the circumstances under which confidential information may be given in evidence without the consent of the principal or without other authoriza­tion by law, in proceedings either within or outside the Cayman Islands. While being in pari materia with the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (“the Evidence Order 1978”), which enforces the Hague Convention in these Islands and which also enables assistance where criminal proceedings have been instituted before a foreign court, s.4 of the CR(P)L, on its face, contemplates a wider category of circumstances under which evidence may be intended or required to be given. The Evidence Order 1978 speaks of evidence to be given before a court or tribunal; the CR(P)L speaks of evidence to be given in or in connection with any proceeding before a “court, tribunal or other authority.” The words “or other authority” in s.4 are nonetheless to be construed ejusdem generis with the words “court or tribunal.” While the categories and circumstances contemplated may be wider, the bodies must be of the same kind or genus. This means that any “other authority” before which confidential information is to be given in evidence must be one authorized to adjudicate in the sense of being able to decide upon or determine rights or issues.

76  This court so held in In re Frankfurt Police (11), in refusing directions under s.4 for the disclosure of confidential information to the Frankfurt police, as that institution was not clothed with the necessary

77  By contrast, permissive directions were given in In re Codelco (8), because the agency involved—the Commodities and Futures Trading Commission of the United States (“the CFTC”)—having both investigatory and adjudicatory powers, was investigating serious allegations of fraud and had taken the further step of moving a US court to enforce its subpoena. This court held that disclosure could be made in response to the requirement or order of the US court made within the proceedings before it for the enforcement of the subpoena.

78  In In re H (12), directions for disclosure were refused having regard to the particular circumstances of that case. This court accepted that it had jurisdiction to grant directions, notwithstanding that the overseas authority before which the evidence was to be given was a grand jury of the United States, which is not a court. It is to be regarded as performing a limited type of adjudicatory function upon its inquiry, in deciding whether or not to return an indictment against a person. It may therefore be regarded as coming within the meaning of “other authority” contemplated by s.4 of the CR(P)L. On another view of its functions, the grand jury’s deliberations are also at least preliminary to court proceedings in which the indictments it returns are tried. On that basis also, a grand jury appears to come within s.4 of the CR(P)L.

79  While not being themselves constituted as a “court, tribunal or other authority,” there is evidence before me that the inspectors are to be viewed as having been appointed in the context of and for the purposes of proceedings which are still ongoing before the Irish High Court. In my view, on a plain reading of s.12(1) of the Irish Companies Act 1990, this is so. And I found Mr. Bueno’s submissions in this regard to be persuasive by reference to the provisions of that Act. I accept, therefore, that the inspectors are acting in the course of proceedings which are before the Irish High Court. I find their relationship with the Irish High Court to be analogous, for present purposes, to a compulsory or court-supervised liquidation or the appointment of an inspector over the affairs of a company under our Companies Law.

80  Under our Companies Law, orders are frequently made requiring persons having information about the affairs of a company to disclose that information to liquidators in and for the purposes of the liquidation which, while it lasts, is an ongoing proceeding before this court. When the information is given, it is given in and for the purposes of the liquidation and is to be used for no other purpose without the leave of the court.

81  By reference to that useful, if not exact, analogy, and in accepting that construction of the Irish Companies Act, I find that the information which Ansbacher intends to divulge by way of affidavit to the inspectors may be regarded as evidence to be given in or, more precisely, in connection with, the proceedings being inquired into by the Irish High Court. Upon that analysis, I am satisfied therefore that this court has jurisdiction to give the directions which Ansbacher seeks.

82  As a further obstacle to this finding of jurisdiction, Mr. Alberga had also referred to the provisions of s.4(6) of the CR(P)L. He submitted that as a pre-requisite to a finding of jurisdiction, the court must be able to determine into which of the three categories of disputes or proceedings there described the inspectors’ inquiry comes.

83  I do not regard sub-s. (6) as to be read as being definitive or categorical of the types of proceedings for which the court may direct evidence to be given. In my view, sub-s. (6), in identifying as it does some of the primary interests of justice which may be affected by an order permitting or refusing the giving of evidence, seeks to give guidance to this court on what directions it might appropriately give. A further example of the kind of factors I might properly take into account would be the fact that Ansbacher seeks to disclose specific limited information, i.e. only that which it considers would suffice to satisfy the inspectors about the legitimate nature of the business it conducted for its Irish clients. The fact that the present Irish proceedings might arguably not fall within the first or third paragraph of sub-s. (6) as being strictly civil (involving a possible claim against Ansbacher by any creditor) or criminal in nature (involving Ansbacher’s allegedly illegal conduct) is not, therefore, a matter which I regard as going to the fundamental issue of jurisdiction.

84  In my view, as the present application can be described as brought to enable Ansbacher to give in evidence confidential information in protection of its own legitimate interests against possible civil, criminal or other sanction (such as injury to its reputation or standing) in proceed­ings being inquired into before the Irish High Court, or in proceedings which might arise therefrom, the considerations identified by s.4(6) are broadly satisfied.

85  In the foregoing treatment of the issues in this rather involved matter, I consider that I have addressed all but two of the substantive grounds of objection raised against Ansbacher’s application. Those remain­ing to be addressed are: First, that Ansbacher’s application is an abuse of the process of the court and, as it is motivated only by fear of reprisals inimical to Ansbacher’s own interests, such a motive is impermissible under Cayman law and policy. Secondly, that this application is tanta­mount, in its support for the inspectors’ mandate, to an impermissible fishing expedition. After briefly addressing each of these issues in turn, I

86  Mr. Todd urged me to reject Ansbacher’s application on the ground of abuse of the process of the court. He put his submission in two ways: First, as the application is not made in the public interest, in their clients’ interests, or in protection of a real or legally recognizable interest of Ansbacher’s, it should not be allowed. This he explained by reference to what he described as Ansbacher’s fear of reprisals being the rather insubstantial basis upon which it would seek to disclose its clients’ information which, in contract and in law it is obliged to protect. If directed to do so, Ansbacher would be obtaining through the process of the court a collateral advantage over its clients to which it is not entitled. Furthermore, to allow Ansbacher “to throw its clients to the wolves” for fear of damage to its own interests would be contrary to the policy of this court as stated in decided cases.

87  The leading case on this point is Att. Gen. v. Bank of Nova Scotia (2), in which the bank was restrained from disclosing information about a specific client’s accounts and the client was to be compelled under threat of sanction of US law to give a “consent directive” for those purposes to the bank. It did not arise for consideration in that case, as it does in this, whether a bank might properly be allowed to disclose confidential information in its own interest or out of fear of reprisals where, in being allowed to do so, appropriate conditions might be put in place to protect the interests or reputations of the clients. In fact, in that case the bank was told that its duty was to make an application under s.4 (s.3A as it then was) and to abide by the outcome.

88  In support of this argument, Mr. Todd also relied upon two English cases, decided within the corporate sphere, involving allegations of oppres­sion of minority shareholders by directors or majority share­holders: In re Bellador Silk Ltd. (6) and Re Astec (BSR) PLC (1). In the first, the petition to the court sought the winding up of the company, and in the second it sought an order that the petitioner’s shares be bought out by the company itself or by another shareholder. Both petitions were dismissed. In the first it was found that the true but impermissible collateral purpose was not to obtain the winding-up order, but to bring pressure to bear on the directors and other shareholders. In the second, the true but impermissible purpose was to bring pressure to bear to force a buyout of all the remaining shares in the company.

89  In the present case, where Ansbacher applies for directions for disclosure, I do not think such allegations of seeking to serve a collateral

90  The whole purpose of s.4 is to provide a framework in which the court can decide in the exercise of its discretion, and having regard to all the circumstances including the competing interests and rights, whether or not to direct disclosure by the giving of evidence. If directions are given for disclosure, the interests or rights of the principal who objects will inevitably be affected. This may be in deference to the conflicting interests or rights of the fiduciary who applies or it may be, as it often is, in deference to the wider interests of the administration of justice. Coming as it does within s.4 of the CR(P)L, Ansbacher’s application, if founded upon an insufficient interest when compared to those of others which conflict, should be dealt with by refusal of the directions sought. It would, in my view, be inappropriate to refuse them on grounds of abuse of process when the process engaged is provided by statute for precisely that purpose of the seeking of directions.

91  I think a similar response is required to the second limb of Mr. Todd’s abuse of process argument, which was that Ansbacher’s applica­tion should be rejected because of its failure to notify all of its clients who would be affected, oppressively denying them the chance to object and to be heard. He cited the case of Morris v. Director of Serious Fraud Office (14), where Nicholls, V.-C. deprecated the attempt of liquidators to secure disclosure from the Serious Fraud Office of documentation which the S.F.O. had obtained by use of its statutory compulsory powers and without giving notice to the persons to whom the documentation belonged so that they could object and be heard.

92  Unlike disclosure by the S.F.O., disclosure pursuant to s.4 can only properly happen after the determination in these proceedings by the exercise of judicial discretion that directions should be given. Except for the mandatory notice to the Attorney General as amicus curiae, s.4(2) contemplates that the proceedings will be ex parte unless the court orders that notice be served upon any party to be affected by disclosure. In short, the response to Mr. Todd’s concern here is that the CR(P)L makes it a matter of discretion whether Ansbacher should be required to give notice of its application to its clients. In the exercise of that discretion, a specific order in respect of service setting out Ansbacher’s obligations in that regard was earlier made in these proceedings on February 5th, 2001.

93  So often have the courts enunciated their concerns about unjustified attempts at “fishing” for information that the expression must now properly be taken as a term of art, and the principle which it embodies

94  Had the admitted purpose of the inspectors’ inquiry been the collateral objective of identifying Irish residents so that they might be investigated or prosecuted for criminal offences, one might expect that in Ireland, as here, some reasonable basis for believing that the offence had been committed by the particular clients would have to be shown. In this matter, I am asked to accept that because the inquiry is into Ansbacher’s conduct and affairs and not directed to the clients themselves, the wide-ranging disclosure of their affairs is not objectionable fishing. That scenario, to my mind, creates even less justification for disclosure, not more. Without intending to gainsay what the Irish High Court reasonably regards as the necessary range of enquiry and disclosure for giving effect to its order, one cannot reject the concern from the point of view of Ansbacher’s clients, that the roving inquiry which has been indirectly ordered into their affairs is tantamount to a fishing expedition.

95  Having reached that conclusion, had it not been for the conditions which s.4 of the CR(P)L allows me to impose upon the giving of directions to disclose, I would have been obliged to refuse Ansbacher’s application without more. Viewed simply as an inquiry to discover the identities of all Ansbacher Irish-resident clients without any allegations of wrongdoing against any of them, this application would have been no less objectionable than the unspecified, unparticularized “John Doe” summonses which met with this court’s disapproval in In re BankAmerica Trust & Banking Corp. (Cayman) Ltd. (4).

96  Before finally turning to set out my conclusions, I must briefly express my views on the question raised by the objectors whether directions under s.4 of the CR(P)L to Ansbacher to disclose would absolve Ansbacher of contractual or equitable liability to its clients.

97  Given the conclusions at which I have arrived, this issue may be regarded as academic, depending on the view one takes of the directions to be given. I am none the less firmly of the view that there can be no residual contractual or equitable liability for breach of confidence if an applicant discloses confidential information pursuant to and in keeping with directions given by order of the court under s.4 of the CR(P)L.

98  And, as I understand it, the position at common law is no different. It is classically stated in Tournier’s case (16) ([1924] 1 K.B. at 472–473, per Bankes, L.J.):

“. . . [I]t is necessary . . . [to decide] what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. . . . On principle I think the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.”

Scrutton, L.J. stated (ibid., at 481):

“I think it is clear that the bank may disclose the customer’s account and affairs to an extent reasonable and proper for its own protection, as in collecting or suing for an overdraft; or to an extent reasonable and proper for carrying on the business of the account, as in giving a reason for declining to honour cheques drawn or bills accepted by the customer, when there are insufficient assets; or when ordered to answer questions in the law Courts; or to prevent frauds or crimes.”

And finally, Atkin, L.J. said, in words which serve to clarify and explain the third of Bankes, L.J.’s qualifications (ibid., at 486):

“. . . I think it is safe to say that the obligation not to disclose information such as I have mentioned is subject to the qualification that the bank have the right to disclose [confidential] information when, and to the extent to which it is reasonably necessary for the protection of the bank’s interests, either as against their customer or as against third parties in respect of transactions of the bank for or with their customer, or for protecting the bank, or persons interested, or the public, against fraud or crime.”

99  These words of Atkin, L.J. bear such close resemblance to the words of s.3(2)(b)(v) of the CR(P)L that the irresistible conclusion is that they were incorporated into the legislation and must be taken, when read in the context of the judgments in the Tournier case, as giving legislative expression to the same meaning. When taken in that way, they give a narrower meaning to s.3(2)(b)(v) than that for which Mr. Jones had earlier contended on behalf of Ansbacher when declaratory relief under

100  Nevertheless, for the present purpose of determining what would be the legal effect on the duties owed by Ansbacher to its clients of directions to disclose, the legislative history is significant. There is every reason to conclude from it that where, in s.4(3), the CR(P)L provides that directions to be given for disclosure shall be in mandatory terms, the intention is to give statutory force and expression to the equivalent qualifications to the duty which were enunciated in the Tournier case. In the light of that legislative history, in my view, where directions are given for disclosure under s.4(3) of the CR(P)L, the effect is intended to be the same upon the banker/client relationship as an order under compulsion of law (per Bankes, L.J.) or an order to answer questions in the law courts (per Scrutton, L.J.).

101  Thus, Ansbacher could have no residual liability to its clients if it divulged information in keeping with directions from this court, where directions are given as to disclosure made by compulsion of the law and by order of the court.

102  The objectors argued that such a conclusion would not diminish but instead increase the burden on Ansbacher to justify its application, as it seeks to be released not only from the duty of confidence itself, but also from any liability that would otherwise arise from a breach of that duty. I think this must be correct and must be reflected in any conclusion at which I arrive.

103  This is Ansbacher’s application made to protect its interests as they have been explained. Although supported by the inspectors, this is not their application on behalf of the Irish High Court in the Irish public interest. Although I have felt obliged to have regard to them, I am therefore not strictly called upon to consider matters of international law and comity. I am, however, obliged to take into account the interests of the clients who are as yet to be presumed innocent and to whom duties owed are to be abrogated and information disclosed.

104  I conclude that Ansbacher has shown a sufficient interest to protect so as to be allowed to co-operate with the inspectors in their important inquiry mandated within the proceedings before the Irish High Court. However, I agree with the objectors that for those purposes, it is not shown to be essential that Ansbacher should disclose the actual identities of its clients. Disclosure of information sufficient to establish the nature of the business Ansbacher did with the clients and how it was conducted should effectively serve to show that Ansbacher did not conduct illegal

105  Ansbacher’s further wish to have the inspectors identify its clients and independently seek and obtain confirmation of Ansbacher’s bona fides from them is, as matters are presently poised, an accommodation which would be unjustified in the light of the hardship that might result to its clients who have not been shown to have done anything wrong. Ansbacher could only properly hope to have such an order if provisions were to be put in place in Ireland to ensure that the confidential information about the identity of clients and their affairs would not be abused, in the sense of not having been authorized by the directions of this court. As already indicated, there is no basis upon which I might conclude that such provisions would be put in place or, if put in place, that measures could be taken to enforce them. The clients would be left under the cloud of possible unauthorized disclosure, not just while the inspectors’ inquiry continues, but for an indeterminate time into the future.

    1. Ansbacher shall divulge to the inspectors for the purposes only of their inquiry and their report to the Irish High Court the confidential information disclosed during these proceedings to this court and any further information which it intends to divulge and to be described in a formal order, provided that before so doing, in keeping with s.4(4)(c) of the CR(P)L, references to the names, addresses and any descriptions or other references which may disclose the identities of the clients are deleted and substituted by alphabetical letters, numbers or symbols repre­senting such persons, the key to which shall be restricted to Ansbacher, its legal advisers and this court.

    2. Should the inspectors wish to put specific questions to any of those clients who were also parties to this application and arising from the information to be provided, they may do so in writing through Ansbacher. This is, of course, to the extent that Ansbacher is still aware of the clients’ whereabouts, as I am told that Ansbacher might not be able to contact former clients. The responses to be provided may be provided in writing without revealing the identities of the respective clients, unless they wish to identify themselves.