THE UPDATE SCOOP (#9/2025)
Bank’s Duty of Secrecy as per BAFIA and not Tournier | Banking Law
By TAY & HELEN WONG – 24 September, 2025
In the infamous National Feedlot Corporation controversy which involved leak of the company’s confidential banking information and its publication to the media by a lawmaker back in 2012, the bank was sued by the company (and several other respondents) (Rs) for breach of its duty of secrecy and confidentiality. The information was disclosed by two of its employees who had, without its authority, accessed and printed the said information. The bank contended, inter alia, that it could not be held liable or responsible for such unauthorised and unforeseen acts or for the breach of its duty of secrecy and confidentiality to Rs. The High Court dismissed Rs’ claim but the Court of Appeal allowed Rs’ appeal in part, grounding its decision on the common law principle in Tournier v. National Provincial And Union Bank Of England (Tournier) that a bank’s duty of secrecy and confidentiality arose out of contract and was not absolute but qualified.
In the final appeal, the Federal Court in Public Bank Berhad v National Feedlot Corporation Sdn Bhd & Ors [2025] dismissed the bank’s appeal. The apex court resorted to the provisions on a banker’s duty of secrecy as contained in the Banking and Financial Institutions Act 1989 (BAFIA) in s.97(2), 98(1) and 99(1) which was a written law after the coming into force of the Civil Law Act 1956 (the CLA) on 7.4.1956. Therefore, the common law of England on such duty on banking secrecy as administered prior to the coming into force of the CLA, i.e. Tournier had no relevance in determining whether the bank was liable for breaching its duty of secrecy to Rs.
The court rejected the bank’s argument that the bank’s duty of secrecy under s 97(1) BAFIA was not directed at the bank but at its directors or officers. Allowing the bank to avoid liability by shifting blame onto its employees would defeat the object behind s.97(1) BAFIA and render the said provision redundant and bereft of all meaning.
Based on the terms of ss.97(2), 98(1) and 99(1) BAFIA, the exceptions to the bank’s duty of secrecy were more precise and elaborate than the four broad exceptions set out in Tournier. None of the aforesaid provisions applied in favour of the bank. Hence, the bank’s breach of s 97(1) BAFIA was without justification.
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Tags: [bank’s duty of secrecy] [confidential information] [BAFIA ss.97(2), 98(1) and 99(1)]