Robertson v Canadian Imperial Bank of Commerce, Judicial Committee of the Privy Council, 6th October, 1994.

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Ref.: Bank's duty to customer when acting on subpoena^†

^† A subpoena is a legal document telling someone they must attend a court of law and give evidence as a witness.

A bank is not guilty of a breach of contract or negligence when it is unable to contact a customer to inform him that the bank has complied with a subpoena to produce bank statements relating to the customer's affairs.

The appellant failed to prove that the failure of the bank to tell the court that the statement was being produced without his consent had caused him any loss or damage.

A subpoena ordered the bank to produce statements concerning the appellant in connection with the trial of an action in Saint Vincent and the Grenadines against the appellant's brother. The bank was advised to obey the subpoena.

The appellant brought proceedings against the bank on the grounds that it was an implied term of the contract that the bank would not divulge to third persons any of the appellant's transactions with the bank without the appellant's consent. The appellant also claimed that the bank was negligent because the bank had acted in disregard and in defiance of its duty of confidentiality and had destroyed the privacy of the appellant's accounts.

The Privy Council said that the bank was compelled by law to produce the bank statement to the court but it was under no compulsion to withhold knowledge of the subpoena from the appellant.

A customer of good standing could expect, as a matter of existing and good business sense, to be told that his bank was supplying information under a subpoena. Here the appellant had difficulty in formulating the precise terms of the implied duty by which the bank was said to have been bound. There could be no absolute duty to inform the customer of the subpoena when, as in the present case, the bank was unable to make contact with the customer in the time available.

Generally it might be difficult to specify the circumstances in which, by an implied agreement, the bank was to be regarded as entitled in its own protection or compelled by public duty, to refrain from informing the customer.

In the circumstances of the present case the use by the bank of its best endeavours to inform the appellant of the receipt of the subpoena was all that was called for. The bank had attempted unsuccessfully to contact the appellant and thus there was no breach of that obligation. The appellant could not succeed on the grounds that he was not informed.

Also, there was no head of legal privilege which the appellant, or the bank on his behalf, could claim in respect of the bank statement.

The judicial committee did not exclude the possibility that in a particular banker/customer relationship there could be some such implied term or duty of care as that for which the appellant contended but this was not such a case.