22 September 2010 Presentation by Chandra Mohan Rethnam and Mohammed Reza Commercial Litigation Practice

Transcription

1 Recent Developments in Banking Litigation in Singapore 22 September 2010 Presentation by Chandra Mohan Rethnam and Mohammed Reza Commercial Litigation Practice

2 Recent Developments in Banking Litigation in Singapore Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 Go sued the bank for losses suffered on his investment portfolio maintained with the bank arising from the Asian Financial Crisis. He claimed :- that the transactions were unauthorised; and that the bank owed him a duty in contract and / or tort to advise him in respect of his investments. 2

3 Recent Developments in Banking Litigation in Singapore Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 Andrew Ang J re-affirmed the principles set out by the English High Court in JP Morgan Chase Bank v Springwell Navigation Corporation [2008] EWHC 1186, and adopted the factors formulated by Gloster J in Springwell: (i) the extent of the plaintiff s financial experience and sophistication (ii) the contractual context (iii) the actual role played by Ms Ching [the then vice president of the defendant who handled the plaintiff s accounts] (Including the purpose for which she was giving the plaintiff recommendations); and (iv) the extent of the plaintiff s reliance on Ms Ching 3

4 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 Problems with Bank Noted by Ang J 1. Bank acknowledged that a client s risk appetite was an important piece of information that had to be clearly documented in client s file. Bank could only refer to handwritten minutes of meeting. Ang J noted that assessment of a client s risk appetite was an essential component in the client s investment profile and any prudent bank would have ensured that such information was properly documented to protect its own position. 2. Bank would receive instructions either through phone or personally at the monthly meetings. Ang J noted that the handwritten minutes were very brief and never indicated the exact date of the meetings. 4

5 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 Bank also failed to keep a complete record of all the meetings which had taken place with Plaintiff. For a period of about one year, Bank only had five handwritten minutes. Others thrown away. 3. Telephone recordings not produced. Different versions. 4. Worrying lack of compliance with procedural requirements and even on occasions when procedures were complied with, it took the form of bare compliance for the sake of formality with no real regard for the purpose of having such safeguards in place. Bank s internal documents show Plaintiff purportedly gave instructions at the exact time or 9 am on every single occasion. No order forms for trades filled up by private banking officer for the trading desk to execute an order. 5

6 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC The significance of the contractual relationship in determining the scope of any duty of care owed in tort was emphasised by the editors of Jackson & Powell on Professional Liability (Sweet & Maxwell, 6 th Ed, 2007) ( Jackson * Powell ) at paras and 2-111: (v) Can the Concurrent Duty in Tort be More Extensive than the Contractual Obligations? As a matter of principle, if the contract of retainer governs the whole of the parties relationship, the answer should be no. If, however, the contract governs only part of the parties dealings, in other aspects of the parties mutual activities there may be a tortious duty of care but no parallel contractual obligation In any particular case, it will be important to establish whether the professional in effect undertook some further task or gave some advice beyond that which he had contracted to give. 6

7 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 (vi) Further Significance of the Contract Absent some act or advice beyond the scope of his contract, it is in the contract between the professional and his client that the extent of his tortious duty will be found. His tortious duty of care will be no greater in scope than the implied contractual promise to exercise reasonable skill and care. Moreover, the contract can have greater significance: by defining what the professional is to do, it may explain the scope of his responsibility and the extent to which responsibility or risk is to rest with his client or is to be borne by others. [emphasis added in bold] 7

8 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC To summarise, if there was an assumption of legal responsibility whereby one party undertakes to perform a task or service for another, the contract may modify or exclude the scope of any existing tortious duties arising out of that assumption of responsibility. However, if there was no assumption of responsibility by either party, the contract will generally be completely determinative of the scope of the parties duties. This position appear to be borne out from the authorities that follow. 8

9 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC It is thus clear from the authorities that the court will not lightly find the existence of an additional duty within a banking relationship that is already governed by contract unless there is conduct amounting to an assumption of responsibility coupled with reliance under the Hedley Byrne principle ([82] supra). 9

10 Effect of No Representation or No Reliance Clauses 10

11 Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC (a) the bank was not making any recommendation or giving any advice to the client or acting as an adviser (CIC ([79] supra) at [19]; Titan Steel ([87] supra) at [30]; IFE Fund ([86] supra) at [13]; Springwell ([79] supra) at [210]); and (b) the client would seek his own independent advice (CIC at [19]; Titan Steel at [30]). 11

12 Peekay Intermark v Australia and New Zealand Banking Group [2006] EWCA Civ 386; [2006] 2 Lloyd s Rep 511 You should also ensure that you fully understand the nature of the transaction and contractual relationship into which you are entering The issuer assumes that the customer is aware of the risks and practices described herein, and that prior to each transaction the customer has determined that such transaction is suitable for him. 12

13 Peekay Intermark v Australia and New Zealand Banking Group [2006] EWCA Civ 386; [2006] 2 Lloyd s Rep 511 There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis of the transaction, whether it be the case or not. For example, it may be desirable to settle a disagreement as to an existing state of affairs in order to establish a clear basis for the contract itself and its subsequent performance. Where parties express an agreement of that kind in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel: It is common to include in certain kinds of contacts an express acknowledgment by each of the parties that they have not been induced to enter the contract by an representations other than those contained in the contract itself. The effectiveness 13

14 Peekay Intermark v Australia and New Zealand Banking Group [2006] EWCA Civ 386; [2006] 2 Lloyd s Rep 511 of a clause of that kind may be challenged on the grounds that the contract as a whole, including the clause in question, can be avoided if in fact one or other party was induced to enter into it by misrepresentation. However, I can see no reason in principle why it should not be possible for parties to an agreement to give up any right to assert that they were induced to enter into it by misrepresentation, provided that they made their intention clear, or why a clause of that kind, if properly drafted, should not give rise to a contractual estoppel A clause of that kind may (depending on its terms) also be capable of giving rise to an estoppel by representation if the necessary elements can be established: see EA Grimstead & Son Ltd v McGarrigan (CA) [1999] EWCA Civ

15 JP Morgan v Springwell [2008] EWHC (Comm) 1186 per Gloster J I see nothing inappropriate or commercially offensive about Chase being permitted to rely on the statements contained in the Relevant Provisions, even if it could be said that in some respects they did not accurately reflect every aspect of the dealing relationship. All of the relevant terms of the contractual documentation fall squarely within the Peekay analysis, as contractual representations (and in some cases, warranties) or agreements as to the basis upon which the business was to be conducted. Thus, for example, where the contract provided that, by placing an order, Springwell represented that it was a sophisticated investor and that it had independently and without reliance on Chase made a decision to acquire the instrument, that was not a mere statement of historical fact, but a contractual representation forming the agreed and binding basis upon which the parties would transact every future purchase. The same analysis applies in respect of every clause in every document to which Springwell takes this objection. The fact that some statements are expressed in the language of representation or acknowledgement cannot, in my view, make any difference to the analysis that the statements give rise to a contractual estoppel. 15

16 RZB v RBS [2010] EWHC (Comm) 1392, per Christopher Clarke J I do not regard myself as bound by Lowe v Lombank to conclude that an agreement that no representations have been made or relied on (or as to any other past fact) can never amount to a contractual estoppel. There is no intrinsic reason why that should be so. There is good reason for allowing businessmen to agree with each other the basis of fact (including past fact) upon which they are to do business If, contrary to my view, Lowe v Lombank so holds, then I regard the decision as (a) wrong and (b) reached per incuriam 16

17 Government of Zanzibar v British Aerospace (Lancaster) House Ltd [2000] 1 WLR 2333: A term which negates a reliance which in fact existed is a term which excludes a liability which the represent or would otherwise be subject to by reason of the misrepresentation. If that were wrong, it would mean that section 3 could always be defeated by including an appropriate non-reliance clause in the contract, however unreasonable that might be. 17

18 IFE v Goldman Sachs [2006] EWHC 2887 (Comm), per Toulson J As to the claim under the Misrepresentation Act or for negligent misstatement, the question is whether the relevant paragraphs of the SIM are properly to be understood as excluding a liability for misrepresentation or as going to the question whether the alleged representation was made at all. If the later, neither Act has any relevance to them. (See William Sindall PLC v Cambridgeshire County Council [1994] WLR 1016, 1034, per Hoffmann LJ.) The question is one of substance and not form. If a seller of a car said to a buyer I have serviced the car since it was new, it has had only one owner and the clock reading is accurate, those statements would be representations, and they would still have that character even if the seller added the words but those statements are not representations on which you can rely. Cremdean Property Ltd v Nash [1977] EGLR 80, which Mr Nash cited, is authority for the principle that a party cannot by carefully chosen form of wording circumvent the statutory controls on exclusion of liability for a representation which has on proper analysis been made. 18

19 IFE v Goldman Sachs [2006] EWHC 2887 (Comm), per Toulson J If, however, the seller of the car said, The clock reading is 20,000 miles, but I have no knowledge whether the reading is true or false, the position would be different, because the qualifying words could not fairly be regarded as an attempt to exclude liability for a false representation arising from the first half of the sentence. 19

20 JP Morgan v Springwell [2008] EWHC 1186, per Gloster J Terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of the UCTA. Otherwise, every contract which contains contractual terms defining the extent of each party s obligations would have to satisfy the requirement of reasonableness. 20

21 RZB v RBS [2010] EWHC (Comm) 1392, per Christopher Clarke J Although contractual estoppel clauses are increasingly common, particularly in the case of complex financial instruments or investments, their use is not restricted to that field. They may also be used in everyday contracts made with consumers or between businesses great and small. Any interpretation of section 3 must accommodate the car dealer as well as the bond dealer As has already been said, the essential question is whether the clause in question goes to whether the alleged representation was made (or, I would add, was intended to be understood and acted on as a representation), or whether it excludes or restricts liability in respect of representations made, intended to be acted on and in fact acted on; and that question is one of substance not form. 21

22 Recent Developments in Banking Litigation in Singapore Titan Steel Wheels Ltd v Royal Bank of Scotland plc [2010] EWHC 211 Did the bank owe Titan a duty of care? Were the bank s standard terms sufficient to exclude the duty? 22

23 Recent Developments in Banking Litigation in Singapore Titan Steel Wheels Ltd v Royal Bank of Scotland plc [2010] EWHC 211 Banks services were execution only no advice: In particular, we do not act as your adviser or in a fiduciary capacity. For the avoidance of doubt, we are providing you with an execution-only service, with no advisory services. Customer agreed to take independent advice: Note 4: that Titan was acting for its own account and had made an independent evaluation of the transactions entered into and their associated risks and had had the opportunity to seek independent financial advice if unclear about any aspect of the transaction or risks associated with it, and it placed, or had placed, no reliance on the Bank for advice or recommendations of any sort. Customer Titan placed no reliance on the Bank for advice or recommendations of any sort (see above) 23

24 Recent Developments in Banking Litigation in Singapore Titan Steel Wheels Ltd v Royal Bank of Scotland plc [2010] EWHC 211 David Steel J was of the opinion that the scope of the obligations owed by the bank to its client were fully defined in the contractual terms (at [81], [82] and [85]): 81. These terms expressly provided that the Bank would not provide advisory services and that any opinions expressed by the Bank did not constitute investment advice. Titan was to take independent advice as might be necessary. In that sense the Bank was making it clear that it was only providing an execution service. 82. The specific terms of each transaction, both as contained in the post transaction acknowledgements and the confirmations were to the same effect. In particular: i) Titan was to seek independent advice if required. ii) Titan placed no reliance on the Bank for advice or recommendations of any sort 85. I turn to the impact of these terms. In this regard there was some confusion in Titan s case as to whether it was alleging a pre-existing duty of care at the time the products were purchased or that the Bank assumed a duty of care in respect of Ms Plested s advice. But on either basis, I conclude that the terms outlined, taken as whole, are only consistent with the conclusion that Titan and the Bank were agreeing to conduct their dealings on the basis that the Bank was not acting as an advisor nor undertaking any duty of care regardless of what recommendations, suggestions or advice were tendered. 24

25 Recent Developments in Banking Litigation in Singapore Credit Industrial et Commercial v Teo Wai Cheong [2010] SGHC 155 The outcome in each civil litigation case, however, remains to be determined by the applicable common law or statutory causes of action and the evidence adduced. The implications of the common law and statutory causes of actions available and the hurdles to be overcome have been extensively canvassed in the recent English case J.P. Morgan bank (formerly Chase Manhattan Bank) & Others v Springwell Navigation Corporation [2008] EWHC 1186 The present case raises a core question of law about private banking and sophisticated clients. When is a private bank acting as a trusted advisor of its client and when is it not? The answer to this question of law falls to be determined by the particular contractual documentation and conduct adduced in evidence in each case. Per Philip Pillai JC (paras 1 and 2) 25

26 Recent Developments in Banking Litigation in Singapore Credit Industrial et Commercial v Teo Wai Cheong [2010] SGHC 155 The overarching contractual documents between the plaintiff private bank and the defendant client The contractual relationship between the plaintiff and the defendant is set out in a number of standard printed forms. These are standard form contracts, which private banking clients do not normally read, and if read, are not fully understood and rarely negotiated. Nevertheless, in the absence of fraud or misrepresentation, a person is bound by the express contractual terms of the documents which he has signed even though he has not read their content not understood their language. Per Philip Pillai JC (para 8) 26

27 Credit Industrial et Commercial v Teo Wai Cheong [2010] SGHC 155 When is a private bank acting as a trusted advisor of its client and when is it not? 84 A private bank is not acting as a trusted advisor of its client when (a) its account opening form and Risk Disclosure Statement highlight to the client that he is responsible for the risks in his transactions and recommends that he takes advice from other professional advisers, including his accountants, lawyers and tax advisors, and further that the bank does not make recommendations or give advice and (b) this is borne out by the evidence of conduct. 27

28 Recent Developments in Banking Litigation in Singapore Hwang Cheng Tsu Hsu v Oversea- Chinese Banking Corp [2010] SGHC 160, paragraph 66 The legal principles underpinning the relationship between a bank s duty to follow its customer s instructions and its duty to take reasonable care. The relationship between the bank and the deposit account holder is premised on the debtor-creditor relationship. It carries with it the obligation on the part of the bank to honour the customer s mandate as regards the payment of money from that account. The bank s duty to pay on the demand of an account holder however co-exists with a duty to take reasonable care in all the circumstances as agent of the account holder. The duty to take reasonable care in the discharge of its obligations under the contract between banker and customer includes withholding payment where there has been fraudulent conduct resulting in wrongful loss by a party. In Bank of New South Wales v Goulburn Valley Butter Company Proprietary [1902] AC 543, Lord Davey at 550 said: "The law is well-settled that in the absence of notice of fraud or irregularity a banker is bound to honour his customer's cheque." Of course, where somebody cries "Fraud!", it is not always the case that the bank must withhold payment. The question in every case, including the present, is whether the bank behaved reasonably in view of all the circumstances and discharged its duty of care. 28

29 Recent Developments in Banking Litigation in Singapore Hwang Cheng Tsu Hsu v Oversea- Chinese Banking Corp [2010] SGHC 160 It is clear from the above authorities that the Bank s contractual duty to honour payment instructions in accordance with the customer s mandate is not an absolute one. There is no duty on the Bank to follow the customer s instructions to make payment under any circumstances because its obligation to honour payment instructions is qualified by its contractual duty to take reasonable care in carrying out its operations within its contract with its customer. The question is whether a reasonable and prudent banker with knowledge of the relevant circumstances would have withheld payment because of a serious or real possibility of an irregularity. Per Lai Siu Chiu J (para 74) 29

30 Recent Developments in Banking Litigation in Singapore Hwang Cheng Tsu Hsu v Oversea- Chinese Banking Corp [2010] SGHC 160 On the facts and evidence presented before this court, I hold that the Bank was not in breach of its contractual duties to the plaintiff. It was under no absolute duty to make payment out of the plaintiff s bank accounts in the circumstances that prevailed in May Banks cannot turn a blind eye to facts which would have shown a serious possibility of irregularities in the apparent mandate it received from its customer. Per Lai Siu Chiu J (para 138) 30

31 Recent Developments in Banking Litigation in Singapore Conclusive Evidence Clauses RBS Coutts Bank Ltd v Shishir Tarachand Kothari [2009] SGHC 273 A certificate or statement issued pursuant to a conclusive evidence clause is, in the absence of fraud or manifest error on the face of the certificate, determinative of the amount due. However, a party can still challenge the underlying basis of the claim and ask the court to review the propriety of the demand itself 31

32 Recent Developments in Banking Litigation in Singapore Conclusive Evidence Clauses RBS Coutts Bank Ltd v Shishir Tarachand Kothari [2009] SGHC 273 The bank relied on its statements of account rendered to the defendant which contained inter alia the following provisions: At the end of the period of 90 days, the Account as kept by RBS Coutts and the details set out in the Statement shall be conclusive evidence without any further proof that the Statement, the entries and details therein are correct (subject to the right of RBS Coutts, which may be exercised by it at any time, to adjust any entries in the Account or details in the Statement where they have been wrongly or mistakenly made by it) except for: any alleged errors notified by you to RBS Coutts in accordance with the notice provisions in these Terms; 17.4 Except as provided above, RBS Coutts shall not be liable for any errors in the Statement. The court decided that the defendant was bound by the bank statements rendered; The time period provided for dispute was a generous one and gave the Defendant more than adequate time to examine all transactions in detail. The Statements, not having been disputed during the relevant periods, were conclusive evidence that the Forex Transactions were authorised. Per Prakash J (paras 17 and 18) 32

33 Recent Developments in Banking Litigation in Singapore Banking Confidentiality Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737 A banker s contractual duty of confidentiality in Singapore is governed exclusively by section 47 of the Banking Act. Section 47(1) of the Banking Act states categorically that: Customer information shall not, in any way be disclosed by a bank in Singapore or any of its officers to any other person except as expressly provided in this Act. If you do not fall under a statutory exception, no disclosure is permitted. 33

34 Recent Developments in Banking Litigation in Singapore Exceptions to the Non-Disclosure Rule The Third Schedule Most important exception the customer has consented in writing to such disclosure. Certain types of legal proceedings e.g. legal proceedings between the bank and the customer, garnishee order served on the bank. 34

35 Recent Developments in Banking Litigation in Singapore Consequences of a breach of banking secrecy Criminal (Section 47(6)) (a) in the case of an individual, a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both; or (b) in any other case, a fine not exceeding $250,

36 Recent Developments in Banking Litigation in Singapore THANK YOU Website: Mr Chandra Mohan Rethnam Mr Mohammed Reza Tel: Tel: