Jerome Gippetti v Cayman National Bank - Judgment

¶ ```html IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO：341 of 2006 BETWEEN： JEROME GIPPETTI Plaintiff CAYMAN NATIONAL BANK Defendant Before：The Honourable Madam Justice Levers Appearance： Mr. J. Chapman for the plaintiff Mr. P. Boni for the defendant Heard：21st November 2006 JUDGMENT Levers，J. By way of Summons the applicant/plaintiff in this matter asks for the following orders： 1. To arise Plaintiff such pe close to in torunwin Court may think fit whether or not the records requested in the

¶ [1] schedules attached to the Statement of Claim herein remain in the custody or control of the Defendant;

¶ [2] Insofar as any record(s) are identified as still existing, that the Defendant do inform the Plaintiff’s attorneys within 5 business days or within such period as the Court may think fit of the Defendant’s charge(s) for producing such records to the Plaintiff; and that the Defendant;

¶ [3] Do deliver up to the attorneys for the Plaintiff any of the requested records identified by the Defendant as still existing under paragraph 1 above for which the Plaintiff has paid the charge(s) specified under paragraph 2 above within 7 days or within such period as the Court may think fit of such payment being made by the Plaintiff to the Defendant;

¶ [4] And for an Order for damages for their wrongful detention and interest thereon to be assessed and the costs of this application to be taxed and paid by the Defendant to the Plaintiff. Background Bac

¶ [1] A Writ of Summons and Statement of Claim were filed in this matter in

¶ [2] August of 2006. The Plaintiff was to provide certain information to the IRS

¶ [3] and having contested the application he now wishes to cooperate with the

¶ [4] request and has asked the Cayman National Bank to provide him with

¶ [5] certain account information for the years 1999 and 2000. The contract with

¶ [6] the bank has terminated and the accounts have been closed. The bank’s

¶ [7] position is set out in a letter dated 14th August 2006 and paragraphs 1, 2 and

¶ [8] 3 of the letter succinctly set out the reasons why the Bank does not feel that

¶ [9] the applicant is entitled to the documents.

¶ [10] (1) There is no duty, whether in contract or otherwise, which would

¶ [11] require the Bank to produce the vast number of documents set out in

¶ [12] the three schedules to your earlier letter even if Mr. Gippetti were still

¶ [13] a customer of the Bank. We are sure you will appreciate that the

¶ [14] categories and extent of documentation sought go far beyond those,

¶ [15] which a customer might reasonably expect its bank to produce. If you

¶ [16] have authority to support the proposition that the Bank must produce

¶ [17] such documents we would be happy to consider it.

¶ [18] (2) Mr. Gippetti terminated his relationship with the Bank some time

¶ [19] ago. Quite apart from the objection set out at (1) above, please note
```markdown that there is now no contractual relationship between Mr. Gippetti and the Bank. A bank may choose to maintain records for a certain period in order to protect its own position but it owes its customer no duty to do so. Further, we note that many if not all of the documents sought are more than six years old. (3) The Bank has advised you of its duty of confidentiality and you say you are confused by the reference to the Confidential Relationships (Preservation) Law. Let us try to clear up any confusion. You refer to the fact that it is the Principal who seeks disclosure here so that confidentiality rules do not apply. We disagree. The Bank is aware that the Internal Revenue Service of the United States has demanded that Mr. Gippetti produce certain documents. Perhaps you are not aware of the fact that the documents sought now by Mr. Gippetti match those requested by him in a letter dated August 16th 2004. In that letter Mr. Gippetti advised the Bank that the request was made 'pursuant to an Internal Revenue Service Summons. It is impossible to draw any other inference from the renewed request but that Mr. Gippetti is asking to produce evidence in connection with the IRS. If consent is freely given, and the Bank being under a duty to disclose that documents (which, as a result ```
```html 1 of both (1) and (2) above, it is not) there might be a duty to disclose 2 but consent is not freely given where the request is made under 3 foreign court sanction (see Re ABC Limited [1984] CILR 130). The 4 Bank is aware that this information is sought to satisfy the Internal 5 Revenue Service. The fact that Mr. Gippetti has chosen to renew his 6 request through you does not alter the fact that, as far as the Bank is 7 aware, Mr. Gippetti’s request that the Bank produce information in 8 connection with foreign proceedings is not voluntarily and freely 9 given. 10 11 As will be seen from that letter the Bank feels that it is unreasonable to 12 ask for all these documents but more than that they rely mainly on the 13 Confidential Relations (Preservation) Law. There is in fact no other 14 defence raised in that letter and for purposes of this application, this 15 Court must be governed by the contents of that letter, as no defence has 16 yet been filed. 17 18 It is the Cy to look 19 having been 20 provide the applicant with details of these documents. This application is ```
tantamount to an application for summary judgment. It is really a question of asking for the factual situation at the Bank. Whether they have the documents or not and if they have the documents, can they be produced, if the Court orders them to be produced. Do they then come within the meaning of confidential information? Mr. Boni for the Bank relies on *In the Matter of ABC Limited*, Chief Justice Summerfield's judgment, (1984) CILR at page 130. In that case the bank applied to the court for a direction (a) as to whether or not the applicant can disclose confidential information to a foreign governmental agency and (b) also for a further declaration that a consent directive signed by anyone, pursuant to an order, or directive of a foreign court, or tribunal, which can impose a penal sanction for disobedience of the compelling order or directive is not a consent sufficient to negative the application of the Confidential Relationship (Preservation) Law, as amended. In other words, that the consent was not free and voluntary. As I have that case to ..., the consened as a rent function has the words penal sang in other principal's head). In this case what is being asked for is information to

¶ [1] be released to the principal in question and it just so happens that the

¶ [2] principal has informed the bank as to what he intends to do with it. There

¶ [3] is no question of a consent directive being signed under a court order.

¶ [4] The applicant in this case contested the requirement to disclose to the IRS

¶ [5] but having litigated he went no further but he took a conscious decision

¶ [6] to cooperate with the request. Further more he has instructed his own

¶ [7] attorneys to commence litigation in order to enable him to provide this

¶ [8] information to the relevant authority and he has advised the bank that he

¶ [9] wants to do so. Does this therefore come under the definition of

¶ [10] confidential information, as envisaged in the Confidential Relationship

¶ [11] (Preservation) Law? The definition of confidential information under

¶ [12] that Law is that it, 'includes information concerning any property which

¶ [13] the recipient thereof is not, otherwise than in the normal course of

¶ [14] business, authorized by the principal to divulge'. 15.

¶ [16] This request is made between 2 contracting parties and the Bank will not

¶ [17] be open to any liability if it hands over this information (of course the

¶ [18] Bank can only hand over what it has).
Mr. Chapman submits that this does not come within the definition of confidential information because, here is the principal himself requesting the bank to divulge the information to himself. He is the source of the information. It is on his instructions that the bank works and the information is his so that there are no third parties involved in this application. I agree with Mr. Chapman therefore that this is not confidential information as envisaged by the Confidential Relationship (Preservation) Law (1995 Revision) and in those circumstances I make the orders and grant relief sought in paragraphs 1, 2 and 3 of the Summons. As to paragraph 4, I adjourn that sine die. Costs to the plaintiff to be taxed if not agreed. Dated this 6 th day of December 2006 Judge of the Grand Court ```html 1 Mr. Chapman submits that this does not come within the definition of confidential information because, here is the principal himself requesting the bank to divulge the information to himself. He is the source of the information. It is on his instructions that the bank works and the information is his so that there are no third parties involved in this application. I agree with Mr. Chapman therefore that this is not confidential information as envisaged by the Confidential Relationship (Preservation) Law (1995 Revision) and in those circumstances I make the orders and grant relief sought in paragraphs 1, 2 and 3 of the Summons. As to paragraph 4, I adjourn that sine die. Costs to the plaintiff to be taxed if not agreed. 12 13 Dated this 6 th day of December 2006 14 15 16 Judge of the Grand Court