Side view of corridor and docks.

If at first you don't succeed, give up

05 December 2011

Not deterred by the Court of Appeal's recent ruling that the names of junior AML staff are not disclosable under standard disclosure, Messrs Shah and Mahabeer continued their appeal against the following decisions.

They had been refused permission to amend their claim to allege bad faith on the part of an HSBC employee when making a SAR to SOCA. Then, when HSBC disclosed transcripts of telephone conversations relating to the disclosure which rebutted this allegation, the claimants abandoned that allegation and sought instead to amend their case to allege that HSBC employees had conspired to make a SAR without any basis for doing so.

Perhaps not surprisingly, in the absence of anything in the new material to support the allegations of bad faith or dishonesty and in light of the proximity of the trial, the judge ruled against the inclusion of the amendments.

Yesterday, the Court of Appeal backed this decision, observing that it was very much a matter for the Judge's discretion and of case management.

It was right to refuse permission to amend the Reply as the proposed amendments were in effect replicating those in respect of which permission to amend the Claim had already been refused.

Whilst one cannot blame the claimants for being persistent, their damages claim against HSBC being in excess of $300million, nevertheless where employees of a reputable bank think that there is a possibility that monies to be transferred are criminal property and comply with their obligations to make disclosure, then it must be right that the Courts should protect both the employees and the bank itself.

Otherwise, complying would provide the employees with a defence against potential money laundering charges under POCA but would not provide the bank with protection from civil liability to the relevant customer.

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