Moving money: Bitar v Bank of Beirut and Manoukian v SGBL

While in Khalifeh v Blom Bank SAL¹ (considered in this article), the High Court agreed with the bank, this judgment closely follows the reasoning in Manoukian v Societe Generale de Banque au Liban SAL & Another, another recent case in which the court also ordered specific performance of an international transfer by two Lebanese banks to their customer.

Both decisions will be of significant assistance to customers of Lebanese banks seeking to transfer their funds out of Lebanon following the country's economic crisis. While the cases were heard under Lebanese law, the judgments give an insight into the English court's approach to dealing with issues of foreign law in the banking sphere. In particular, the judgment in Bitar provides useful insights into the court’s approach to expert evidence on foreign law.

Background

The background to both Bitar and Manoukian is similar. Both claimants were resident in England and had deposited money with Lebanese banks domiciled in Lebanon. Although Lebanese law applied in both cases under the terms of the banking mandates, the English courts accepted jurisdiction to hear the claims because Mr Bitar and Mr Manoukian were deemed to be ‘consumers’ for the purposes of the recast Brussels Regulation (1215/2012) (now sections 15A-15E of the Civil Jurisdiction and Judgments Act 1982). This provides that, subject to certain conditions, a consumer may bring proceedings in their country of domicile.

The banks considered that they were entitled to refuse to comply with the transfer requests in light of the restrictions imposed by the Lebanese Government on payments of foreign currency out of Lebanon. Instead, they argued that it was sufficient to tender payment in the form of banker's cheques (drawn on the Lebanese central bank, the Banque du Liban), to be deposited with a notary public in Lebanon. This was unacceptable to the claimants, who argued that the financial crisis was not a legitimate reason for the banks to refuse to execute the transfers.

In the earlier case of Khalifeh v Blom Bank SAL, Foxton J held that Blom Bank had discharged its obligations by depositing cheques with a notary public in Lebanon. However, a key distinguishing feature of that case was that the claimant accepted that no international transfer right existed under Lebanese law.

In Bitar and Manoukian, the key issue to be determined was whether an international transfer right existed as a matter of contract and/or general Lebanese law.

Contractual transfer right

In Manoukian, Picken J analysed the terms and conditions applicable to the banking relationship between Mr Manoukian and the defendant banks and held that, as a matter of construction of those terms, the banks were obliged to execute the international transfers in accordance with Mr Manoukian's instructions.

In addition to specific terms within each contract, Mr Manoukian also placed reliance on Articles 366 and 367 of the Lebanese Code of Obligations and Contracts, which provided that the parties' joint intentions and expectations needed to be ascertained in light of the context and purpose of the contract, and that any ambiguities should be resolved on this basis. Picken J agreed with Mr Manoukian that, given he opened the account from London, it must have always been intended that he would have the right to make international transfers, otherwise he would not have been able to operate the account as a normal bank account.

In Bitar, the court concluded that unravelling the ‘far from direct’ terms of the contract required a ‘textual exegesis’. It held that, pursuant to Lebanese law, the court needed to have regard to the context in which the agreements were entered into and found that it had been the parties’ joint intention to contract on the basis of making use of international transfers. Against that background, the court construed the contract as providing a contractual obligation on the part of the bank to accede to a request for an international transfer.

Custom

While in both cases the court concluded that the express terms of the contracts provided for an international transfer right, it was also accepted that under Lebanese law, ‘custom’ is treated as a source of law within the realm of contractual interpretation.

In Manoukian, the parties' Lebanese law experts referred to various doctrinal writings and Lebanese court decisions to support the existence (or lack) of banking customs.

Picken J held that both the doctrinal writings and the Lebanese court decisions clearly supported the existence of a transfer right as a matter of Lebanese banking custom, and disagreed with the banks' contention that any such custom was qualified by a 'legitimate reason' exception, which would include the current financial difficulties Lebanese banks find themselves in.

In Bitar, the court concluded that for conduct to qualify as ‘custom’ from a Lebanese law perspective, it needed to be ‘subjectively regarded as a binding norm’. Banks adhering to international transfer requests fell squarely within that definition of ‘custom’.

It was clear in both cases that the banks were contractually obliged to effect the international transfers, both as a matter of construction of the express contractual terms, and by virtue of Lebanese banking custom. The current Lebanese financial crisis and/or a desire to avoid a rush on banks was not a legitimate or acceptable reason (if such an exception to the banks’ obligation existed) for the banks not to transfer money to the order of their customers.

Practical implications

As the cases were heard under Lebanese law, expert evidence on foreign law was an integral part of the case. In both cases, the banks used the same expert, Dr Moghaizel.

Of particular interest, in Bitar, the judge criticised Dr Moghaizel for inconsistencies in his evidence given in the two cases. In particular, the court was critical of the fact that Dr Moghaizel did not confront the fact that he was now taking different positions from those adopted in Manoukian 'upfront'. Instead, the inconsistencies had to be ‘extracted from him in cross-examination’. In Bitar, the judge also commented on an error made by Dr Moghaizel in the Manoukian case which had been repeated in Bitar. Specifically, Dr Moghaizel had relied on a particular author's writings to support the proposition that Article 26 of the Lebanese Consumer Protection Law did not apply to bank contracts with consumers, when in fact the author had corrected his statement in a subsequent text. The court held: 'This mistake would have been easy to understand, but for the fact that this issue had arisen in the evidence in the Manoukian case'. The court also expressed concern about the expert's 'tending towards being an advocate which impaired the independence of his evidence'.

In between the decisions in Manoukian and Bitar, the English courts have given further consideration to disputes between Lebanese banks and their British customers. In Makki v Bank of Beirut S.A.L² (in which both the Manoukian and Khalifeh judgments were considered), the court set aside a statutory demand served on Mr Makki on the basis that litigation commenced by Mr Makki in Lebanon (to seek an international transfer of funds held in Lebanese accounts) was legitimate and substantial and not 'inherently incredible'. While in Makki there was no expert evidence on Lebanese law, the court was persuaded that the claim raised a genuine, triable issue giving rise to a genuine set off or cross demand. It did not accept the bank's assertion that the Lebanese court would dismiss Mr Makki's argument that he had a right to an international transfer of funds. Given the conflicting judgments in Khalifeh and Manoukian, the court determined that the outcome of the Lebanese litigation was 'arguable both ways'. Now that the judgment in Bitar has approved the finding in Manoukian, the prospects for customers of Lebanese banks seeking international transfers look even more positive.