In fraud cases, often the perpetrators of the fraud may not be known. If they are known, they may not engage in the proceedings, comply with freezing or money judgment orders imposed against them and their assets, or provide full disclosure of their assets. In order for victims of fraud to be able to police freezing orders or recover losses in a fraud case, the assistance of third parties is often required to trace and find assets held by or on behalf of the perpetrators of the fraud. In particular, the availability of financial disclosure from third party financial institutions can be crucial in chasing assets often across multiple jurisdictions. Bank statements can provide valuable information as to where funds have been transferred, which can include evidence of other accounts or the names of other individuals involved in the fraud. They can also provide a chain for any tracing claim. There can be difficulties in obtaining disclosure from banks even where court orders have been made, as banks can have concerns regarding the privacy of customers and GDPR. Furthermore, if you are dealing with banks outside the EU, they may not recognise an Irish Court order without an order of recognition of the court in the jurisdiction in which the bank or financial institution is based.

In a fraud case in which we act with Sharon Barrett of Kroll Advisory as receiver, the High Court this week gave an ex-tempore judgment confirming that financial institutions that hold bank accounts over which the receiver has been appointed are required to furnish bank statements and details of financial transactions for those accounts to the receiver. It is not sufficient to provide balance statements. What the court said in confirming the position and making further orders was “clearly for you to be able to police and to understand the assets in terms of the bank accounts …[that the receivers are appointed over]… you would have to see bank statements going back some reasonable period of time”. This decision makes clear that, once the court has appointed a receiver, the receiver’s powers trump GDPR considerations in respect of documents required to be produced.

This was understood by many practitioners to be the case and most banks operated on this basis. However, as far as we are aware, there was no specific precedent on this as a matter of Irish law, so it is a helpful clarification for practitioners. It also highlights the benefit in fraud cases of a receiver being appointed by the court post judgment, which often requires asset tracing, as they have access to information and documents that would not be available to judgment creditors alone.