Next morning It was my turn to step into the witness box. As was to be expected, witnesses of facts (and potential witnesses like Yuri) were no longer in attendance or in the ante-room. Further, Vollar’s expert-witness had withdrawn in the last minute. My duty of objectivity imposed on me as an expert of banking practice was, accordingly, undisputable.
Jack Wilson started his examination-in-chief by presenting my report and by asking if I felt the need to change it in any regards. I responded that I felt no reason to do so. Jack concluded that I was aware that my principal duty was to assist the court. Stepping in, the Judge emphasised the special duty of objectivity imposed on me as the single expert called as a witness.
Vollar’s Counsel then rose to cross-examine. He was not surprised when I affirmed that the practice of banks in Australia, the United kingdom, in New Zealand and in Singapore was to disclaim liability when they gave a reference.
“Who would communicated the disclaimer to the enquirer?”
“The employee charged with the reading out of the reference.”
“You agree that such a person might, occasionally, forget to read out the disclaimer.”
“Such an event can happen,” I agreed.
“Is this a common slip?” asked the Judge.
“Not in my experience, Your Honour.”
“Do Belgian banks disclaim liability?”
“I cannot answer the question. You Honour, I am unfamiliar with Belgian banking practice.”
Counsel turned to the issue concerning the composition of the reference. I had anticipated that line of enquiry and was prepared.
“You Honour,” I turned to the Judge, “the persons who rights the reference is usually the branch manager or the relationship-manager in charge of the account, the enquiry’s subject. He is not expected to investigate extra issues and is entitled to compose his reference on the basis of his general knowledge of the account. He must, of course be careful not to disclose details subject to the bank’s duty of secrecy.”
“Such as?” asked the Judge.
“For instance, that each months they have to make a deduction of maintenance to be remitted to a separated wife or even deduction related to payment of rentals made by the customer. Actually, Your Honour, in some countries a reference is communicated only after it has been approved by the customer. The practice does not apply in Australia.”
“So, the composer of a reference respecting me would not disclose that, every month, I remit a fees to my piano teacher,” jested the Judge.
Leaving this line of questions, Counsel raised an unexpected point. He wanted to know if the object of the enquiry would be disclosed to the composer of the reference. Noting my discomfort Jack Smith raised an objection. This issue had not been raised in the pleadings and was accordingly irrelevant. During the heated exchanges between him and Vollar’s Counsel I had the time to formulate my reply. As soon as my expression regained its earlier aura of confidence, Jack withdrew his objection subject to a right to recall witnesses depending on my reply. The Judge nodded approvingly. He was keen to get to the bottom of things.
“Your Honour, as far as I know there is no uniformity of practice. The request for a reference is usually communicated by the enquirer to his own bankers. These transmit it to the bank which provides the information. The latter will be told about the object of the enquiry only if it is revealed by the enquirer to his own bankers. In the case of potential take-over bids, for instance, the enquirer may not wish to disclose the object of his enquiry. He may describe it as a ‘general enquiry’.”
“But for what reason? Would he not be reassured by the doctrine of bank secrecy?” asked the Judge.
“The doctrine is, of course, applicable, Your Honour. But it is unlikely to prevent bank employees from gossiping, for instance, about X’s intention of taking over Y, or of his interest of entering into a joint venture with him.”
The Judge was about to raise another point, when Vollar’s Counsel advised that he had just received a note from his client. It confirmed that Vollar had described his request for a reference as a ‘general enquiry’ about the Katz’s business.
“Then the issue just raised in respect of banking practice is irrelevant here,” concluded the Judge. Jack Wilson nodded.
“No further questions,” advised Vollar’s Counsel.
After a short reflection, the Judge suggested written submissions. When both Counsel nodded their approval, he rose.