A bank's implied duty of confidentiality to its customers is not absolute; however, a breach due to unauthorized access by an employee can lead to liability for damages.

Introduction

[1] This is an appeal against the decision of the Learned Judge of the High Court ("the Judge") dated 29 July 2019 (delivered after a full trial) dismissing the Plaintiffs' claims in Kuala Lumpur High Court Suit No 22NCVC-623- 05/2012 ("Suit 623") against Public Bank Berhad ("the Bank"). The Judge ordered the Plaintiffs to pay costs of RM350,000.00. Suit 623 was filed on 22 May 2012. The Appellants in this appeal are National Feedlot Corporation Sdn Bhd (1st Plaintiff), National Meat & Livestock Corporation Sdn Bhd (2nd Plaintiff), Agroscience Industries Sdn Bhd (3rd Plaintiff), Real Food Company Sdn Bhd (4th Plaintiff) and Mohamad Salleh Ismail (5th Plaintiff) (collectively, "the Plaintiffs"). For convenience, the Appellants shall be referred to collectively as "the Plaintiffs" and the Respondent as "the Bank". Where necessary, the Plaintiffs shall be individually referred to alpha-numerically as follows: (a) 1st Plaintiff - "P1", (b) 2nd Plaintiff - "P2", (c) 3rd Plaintiff - "P3"(d) 4th Plaintiff - "P4" and (e) 5th Plaintiff - "P5".

The Claims

[2] The Plaintiffs were at all material times customers of the Bank with the respective bank accounts being maintained at the Bank's branch at Jalan Hang Lekiu, Kuala Lumpur. The Plaintiffs had no connection whatsoever with the Bank's Jinjang Branch. P5 is a shareholder and director of all the Plaintiffs including P4. He was the Executive Chairman of these companies.

[3] The Plaintiffs' claims are for loss and damage arising out of the Bank's wrongful disclosure of certain confidential banking information ("the Confidential Information") which was said to be in breach of the Bank's statutory, contractual, and/or fiduciary duties of confidentiality as a financial institution in failing to protect their customers' personal and financial information. Essentially, it is alleged that that the Bank had breached banking secrecy and disclosed the Confidential Information relating to the Plaintiffs' bank accounts to third parties and that by reason of such disclosure, one Rafizi Ramli ("Rafizi") was able to hold a press conference on 7 March 2012 ("the press conference") whereby these banking details were made public.

[4] At the outset, it is important to clarify that the banking details that were made public pertained to all the Plaintiffs except P4 (Realfood Company Sdn Bhd). Thus, the phrase "the Plaintiffs" in this judgment refers to all the Plaintiffs except P4. In this regard, during the trial, P5 had conceded that P4 had no claim against the Bank. As such, at the conclusion of the trial, besides dismissing the claim by all the Plaintiffs, the Judge specifically mentioned that P4 had no claim against the Bank. But it was argued before us the Judge erred in fact and/or in law in concluding that P5 had confirmed and admitted that P4 does not have any claim against the Bank, when P4 was said to be the main profit centre and P5 had confirmed this fact as true when he was cross- examined by the Bank's Counsel.

[5] Having considered the matter carefully, we agree with the Judge with respect to her approach to the question as to P4's alleged claim against the Bank. Indeed, it is quite clear that the Confidential Information does not involve P4. And as will be seen later in this judgment, P4 is not even referred to in P5's letter of complaint dated 30 March 2012 to the Bank and the letter of the same date to Bank Negara