The applicant was detained by the Canadian authorities pursuant to a request for her extradition to the United States of America to be prosecuted for fraud as a co-defendant with the respondents, which were all United Kingdom-based subsidiaries of a multinational financial institution. She applied for an order under section 7 of the Bankers’ Books Evidence Act 1879 to grant her access to documents which she said were held by the US authorities, emanated from within the respondents’ group and were needed to support her arguments in the Canadian extradition proceedings, and which were not amenable to court ordered disclosure in the US extradition or criminal proceedings. The issues for the court on that application included: (i) whether section 7, which provided for a court or judge on the application of any party to a “legal proceeding” to order that such party be at liberty to inspect and take copies of any entries in a “banker's book” for any of the purposes of such proceedings, was confined to legal proceedings in the UK or could apply to proceedings anywhere in the world, given the definition of a “legal proceeding” in section 10 as “any civil or criminal proceeding or inquiry in which evidence is or may be given”; and (ii) whether “bankers’ books”, defined in section 9 to include “ledgers, day books, cash books, account books and other records used in the ordinary business of the bank”, referred only to transactional records or also included non-transactional records maintained for regulatory compliance.
On the application—
Held, application refused. Despite the use of the words “any” in the definition of “legal proceeding“ in section 10 of the Bankers’ Books Evidence Act 1879, Parliament was clearly not making provision about banker's book entries being used in proceedings outside the United Kingdom. The phrase “legal proceeding” was used throughout the Act including in sections 3 to 6 dealing with the receipt of bankers’ books in evidence, proof, verification of copies and compellability and, while Parliament had not expressly qualified the words “all” in section 3 or “any” in section 6, it was necessarily implicit that every relevant “legal proceeding” for that purpose would necessarily be in the United Kingdom. A “legal proceeding” for the purpose of section 7, which fit alongside those other sections by providing the means of access to entries which could then be received as evidence in the legal proceeding, did not have a different scope than its necessarily-implied, UK-limited scope seen elsewhere in the Act, especially bearing in mind the single definitional provision. As a section 7 order could be made by “a court or judge”, the legislation made a clear link between “legal proceeding” and “court”, and Parliament was clearly not making provision in section 7 about the Canadian court making a section 7 order. That was consistent with the position where an order was made by “a judge”, the definition of which was confined under section 10 to specified categories of UK judge. The irresistible conclusion was that the “court” “before whom a legal proceeding is held or taken”, in section 7 read with section 10, meant a court in the United Kingdom and it followed that the legal proceeding had to be in the United Kingdom. Accordingly, there was no jurisdiction to make the order sought by the applicant (paras 13–18, 20).
Per curiam. The 1879 Act is, and has always been, concerned with facilitating the proof, by evidence in proceedings, of concrete banking actions which can be recorded by making an “entry” in a number of ways. Although those ways can change, and have changed, overtime, the 1879 Act has never been concerned to cover everything that a bank has or does or writes down in the course of its ordinary business as a bank. There is no support in the authorities for an extended meaning of section 9(2) of the 1879 Act, beyond transactional records, to mean records maintained for regulatory compliance (unless those records were themselves transactional records) (paras 23–28).
James Lewis QC and Rachel Scott (instructed by Mishcon de Reya LLP) for the applicant.
Rupert Allen (instructed by Latham & Watkins (London) LLP) for the respondents.