Up Front
Ansbacher Clients Win Rightto Secrecy
Following what could be considered to bethe most significant Court Hearing of one of the most extensivechallenges to the Cayman Islands' bank secrecy laws, in connectionwith the High Court of Ireland's attempt to review the accountsof some of Ansbacher (Cayman) Limited's clients, Chief JusticeAnthony Smellie issued his ruling on the morning of Thursday,24 May.
Appearing before the Chief Justice, as whatcould be considered one of the largest group lawyers to appearin any case in modern Cayman.
They were:
Mr. Andrew Jones of Maples & Calder for Ansbacher (Cayman)Limited ("Ansbacher")
Mr. Ramon Alberga Q.C. and Mr. Bryan Ashenheim instructed by Myers& Alberga for
Poinciana Fund Ltd. and Worldwide Services Ltd. (a former clientof Ansbacher).
Mr. Michael Todd Q.C. and Mr. Philip Boni instructed by Mr. ChristopherNarborough of Truman Bodden & Co. for Hamilton Ross Limited(a former client of Ansbacher).
Mr. Antonio Bueno Q.C. and Mr. Hector Robinson instructed by Quin& Hampson for the Inspectors appointed by the Irish High Court.
Mr. Dominic McCahill of Walkers for another client of Ansbacher.
Mr. Stephen Hall-Jones, Senior Crown Counsel for the AttorneyGeneral as amicus curiae.
The following is the Conclusion of the ChiefJustice's ruling:
"The objectors argued that such a conclusionwould not diminish, but instead increase, the burden on Ansbacherto justify its application as it seeks to be released not onlyfrom the duty of confidence itself, but also from any liabilitythat would otherwise arise from a breach of that duty. I thinkthis must be correct and most be reflected in any conclusion atwhich I arrive.
"This as Ansbacher's application madeto protect its interests as they have been explained. Althoughsupported by the Inspectors, this is not their application onbehalf of the Irish High Court in the Irish public interest.
"Although I have felt obliged to haveregard to them, I am therefore not strictly called upon to considermatters of international law and comity. I am, however, obligedto take into account the interests of the clients who are as yetto be presumed innocent and whose duties owed are to be abrogatedand information disclosed.
"I conclude that Ansbacher has showna sufficient interest to protect so as to be allowed to co-operatewith the Inspectors in their important inquiry mandated withinthe proceedings before the Irish High Court.
"However, I agree with the objectorsthat for those purposes, it is not shown to be essential thatAnsbacher should disclose the actual identities of its clients.Disclosure of information sufficient to establish the nature ofthe business Ansbachor did with the clients and how it was conductedshould effectively serve to show that Ansbacher did not conductillegal banking business or business designed to assist in defraudingthe Irish revenue or other creditors of its clients; or to evadeexchanging controls.
"Ansbacher's further wish to have theInspectors identify and independently seek and obtain confirmationof Ansbacher's bona fides from its clients is, as matters arepresently poised, an accommodation which would be unjustifiedin light of the hardship that might result to its clients whohave not been shown to have done anything wrong.
"Ansbacher could only properly hopeto have order if provisions were to be put in place in Irelandto ensure that the confidential information about the identityof clients and their affairs would not be improperly abused, inthe sense of not having been authorized by the directions of theCourt.
"As already indicated, there is nobasis upon which I might conclude that such provisions would beput in place or, if put in place, that measures could be takento enforce them. The clients would be left under the cloud ofpossible unauthorized disclosure, not just while the Inspectors'inquiry continues, but for an indeterminate time into the future.
"The directions I give then are asfollows:
"Ansbacher shall divulge to the Inspectorsfor the purpose only of their inquiry and their report to theIrish High Court, the confidential information disclosed duringthese proceedings to this Court and any further information whichit intends to divulge and to be described in a formal order; providethat before doing so, in keeping with section 4 (4) (iii) of theCR(P)L; references to the names, addresses and any descriptionsor other references which may disclose the identities of the clientsare deleted and substituted by alphabetical letters, numbers orsymbols representing such persons; the key to which shall be restrictedto Ansbacher, its legal advisor and this Court.
"Should the Inspectors wish to putspecific questions to any of those clients who were also partiesto this application and arising from the information to be provided;they might do so in writing through Ansbacher. This is of course,to the extent that Ansbacher is still aware of the client's whereaboutsas I am told that Ansbacher might not be able to contact formerclients. The response to be provided may be provided in writingwithout revealing the identities of the respective clients; unlessthey wish to identify themselves.
I will be available to settle the formalterms of the order and any other ancillary matter."