First posted on Commercial Law International on May 12, 2009.
The House of Lords, with its Judicial Committee of the Privy Council hat on, as Jamaica’s court of final appeal, handed down a judgment that is set to have repercussions well beyond the interests of the parties involved. In fact the consequences of this judgment go beyond just banking or investing but engages commercial dispute resolution, specifically commercial litigation.
The injunction is a very important – that should read indispensable – tool in the commercial lawyer’s arsenal. It is a power that is highly discretionary and exercised with sensitivity to the peculiarities of the case which by the way includes the idiosyncrasies judge. It is a power jealously guarded by the judiciary and as a matter of judicial comity and judicial politics the power to exercise this discretion is largely left unquestioned, with limited exception, to a judge at first instance. Therefore, whenever a court, much less the highest one in the land, is critical of the way in which this discretion is or has been exercised by other courts all involved in the legal process have right to take pause.
However before I get into what I believe to be the more important aspect of the ruling I should deal with the ratio of the case – for the non lawyers/ non Latin speakers the ratio or ratio decidendi are the reasons or rational for a decision. It will provide not only context for the more important dissuasion on injunctions but will also bring to the fore the importance of this ruling to the banking sector n Jamaica.
National Commercial Bank Jamaica Limited vs. Olint Corporation Limited, is a case that exemplifies why commercial awareness is global.
The question that their Lordships had to focus their minds on was whether a bank, by giving reasonable notice, could lawfully close an account that was not n debit, where there was no evidence of the account being used for unlawful purposes? In the judgment delivered by Lord Hoffmann, ¨their Lordships have no doubt that in the absence of express contrary agreement or statutory impediment, a contract by a bank to provide banking services to a customer is terminable upon reasonable notice.¨
The facts of the case, in brief are: Olint provided administrative and other services to an investment club. The club allegedly derived its profits from foreign exchange trading which was proffered as an explanation for its high rate of returns to its member. It opened two accounts with National Commercial Bank (NCB) in 2005 and a third in 2007. Near the end of 2006 Olint, along with other investment clubs, began to attract very unfavorable coverage in the press . They faced allegations that they were operating a Ponzi scheme where returns to older investors were being paid out of money from newer investors.
It is interesting to note that Olint and other investment clubs sprouted up as a specific market response to the lack of investment alternatives, especially for the lower and middle strata of Jamaican society. In this respect they were in direct competition with the financial establishment – the commercial banks and other financial institutions.
In August of 2007 NCB as per its anti-money laundering and terrorist financing legal obligations – but no doubt also motivated by its concerns over the fraud allegations – asked to see the audited accounts of Olint. None was forthcoming. NCB being apprehensive that the allegations could turn out to be true, opening it up for reputational damage and or claims for negligent or dishonest assistance, decided to end is relationship with Olint. It wrote to Olint in November informing them of the decision to close their accounts on December 17 – a notice period of 32 days.
This action by NCB only added to the atmosphere at the time that NCB and the financial establishment were using at best the strictures of the law or at worst under handed tactics in order to remove the competition that Olint and the other investment clubs offered. To put it in the Jamaican vernacular: dem a fight gainst man (translated: they are opposed to us) . Unfortunately, even if this is a commercial reality and I offer no opinion pro or con, it finds no basis in law.
In response on November 21st Olint asked NCB for an extension to March 14 2008, NCB believing that this period was too long agreed to extend until January 14 2008. On January 1, days before the extension period was going to expire Olint without any notice successfully applied ex parte (from (by or for) one party) injunction preventing NCB from closing its accounts until January 15th. An application inter parties (between the parties) came before Mr. Justice Jones on the 17th and 18th of March. He dismissed the application because he did not find that it gave rise to a serious issue. Olint appealed and on July 18th 2008 the Court of Appeal grated the injunction until trail.
Based on the allegations in the particulars of claim served by Olint, it did not claim that the extended period was too short, ¨instead , it is alleged that the bank was acting maliciously, contrary to its statutory obligations under the banking Act and Fair Competition Act and with the intent of inducing breaches of contract between the company and members of the investment club.¨ their Lordship review each of these agreements and had no problem dismissed each in turn as being baseless.
Stay tuned for Part II.