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Discovering Information and Requiring Disclosures from Third Parties in The Bahamas

Posted by M. Margaret Gonsalves-Sabola | Sep 12, 2018 | 0 Comments

Discovering information and requiring disclosures from third parties in the bahamas 1 460x260 c

Often parties to lawsuits discover that third parties have information that the parties need to pursue or defend their legal claims. Third parties are people or entities that are not named in the lawsuit as plaintiffs or defendants. The third party could have documents needed to prove or disprove a claim, or he may have information about the claims or the parties.

Because these third parties have not made a claim in court and are not named as defendants in the action, getting documents and information from them can be complicated. Bahamian courts may issue two different kinds of orders that require third parties to disclose facts relevant to an ongoing lawsuit: Norwich Pharmacal orders and Bankers Trust orders. Both are named after notable legal decisions. (Norwich Pharmacal Co v. Commissioners of Customs and Excise [1974] AC 133; Bankers Trust Co v. Shapira [1980] 1 WLR 1274.)

  1. Norwich Pharmacal Orders

Norwich Pharmacal orders require innocent third parties involved in others' wrongdoing to disclose information about the wrongdoing. For example, the court could order an accountant who did bookkeeping and kept financial records for a person accused of fraud to disclose the accused person's identity and other information about his financial affairs. Courts require a party seeking a Norwich Pharmacal order to show the following:

  • A credible claim of wrongdoing committed by an accused person
  • The third party was somehow involved in the wrongdoing, even if totally innocently
  • The third party facilitated the wrongdoing
  • The party seeking the order has an interest in the case – such as the defendant stealing his money or committing a breach of trust
  • The information sought from the third party is necessary to obtain
  • The information is not otherwise protected by law.

(R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin).)

  1. Bankers Trust Orders

Similar to Norwich Pharmacal orders, Bankers Trust orders require banks to disclose information about a defendant's wrongdoing. For example, the court could order a bank at which someone held an account suspected to hold money obtained through fraud or other unlawful means to disclose the accountholder's name and other information about the account. Usually, banks are not permitted to disclose this information because they have a duty of confidentiality to their customers. (See, for example, Pindling v. Bahamas (Commissioners of Inquiry) 1994 BHS J No. 114.)

Courts require a party seeking a Bankers Trust order to show the following:

  • A credible claim of fraud by the party seeking the order
  • If fraud is proven, that the money involved in the fraud belonged to the party seeking the order
  • The third party (usually a bank) holds the money or did at one time
  • Urgency
  • A specific need for particular information, which could lead to locating or preserving the money.

(Bankers Trust Limited v Shapira [1980] 1 WLR 1274.) The applicant could show urgency by demonstrating a risk that money held in the account will be transferred or disposed of by the accountholder.

To find out more about third party disclosures in litigation, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

About the Author

M. Margaret Gonsalves-Sabola

M. Margaret Gonsalves-Sabola is a civil and commercial litigation attorney and an accredited civil and commercial mediator. Margaret has over 21 years' experience in legal practice in the United Kingdom, Jamaica and The Bahamas.

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