Banks play a pivotal role as custodians of their customers’ funds and as facilitators of countless daily transactions. With this role comes a significant legal responsibility: the duty to act with care, skill, and vigilance when executing customer instructions.
Recent decisions from the Supreme Court of Mauritius have looked closely at this issue, focusing on a banker’s duty of care, the duty to be vigilant (devoir de vigilance), and the limits of non-interference in a customer’s affairs (principe de non-ingérence).
The bank-customer relationship: contractual and fiduciary dimensions
The relationship between a bank and its customer is primarily contractual, with elements of agency and fiduciary duty arising in the execution of customer instructions. As established in Chetty S. R. & Ors [2018 SCJ 144], the bank is not merely a debtor to its customer but also acts as an agent when executing payment orders.
However, this duty is not absolute. The bank’s obligation to execute valid and proper orders promptly is balanced against its duty to protect the customer from fraud or unauthorised transactions.
The courts have emphasised that the bank must not blindly follow instructions but must act with the diligence expected of a reasonable banker in the matter of Chetty S.R. & Ors [2018 SCJ 144].
The principle of non-interference versus the duty of vigilance
A recurring theme in Mauritian banking jurisprudence is the principe de non-ingérence (principle of non-interference), which holds that banks should not unnecessarily intrude into their customers’ affairs. A client should be free to use their money as they see fit, and the banker should not assess the merits of a transaction.
However, this principle is expressly limited by the devoir de vigilance (duty of vigilance). A banker’s duty of vigilance can be defined as an obligation of prudence and diligence to prevent and detect suspicious or illicit transactions. This obligation is based on general tort law liability and stems from the banker’s overarching obligations. This duty is assessed based on the banker’s conduct, specifically whether they acted as a reasonably diligent professional.
For instance, a prudent and reasonable banker would be expected to detect an alteration, erasure, or forged signature on a transaction document. It would also be expected that a banker, acting as a reasonable diligent professional, would conduct a more thorough examination of complex or unusual transactions and ask the client about the origin and destination of the funds.
As articulated in the recent case of Moosajee v Bramer Banking Corporation Ltd (In Liquidation) [2025 SCJ 314], the duty of vigilance requires banks to scrutinise transactions for apparent anomalies or irregularities and to take appropriate action, such as seeking further information or refusing to execute a transaction, when such anomalies are detected.
The courts have drawn from both French and English legal doctrine to define this duty. The bank must act as a professionnel diligent, ensuring that operations do not present any anomalie apparente. If such an anomaly exists, the bank is obliged to investigate further and, if necessary, refuse to process the transaction to prevent harm to the customer or third parties.
Apparent anomalies and standard of care
Mauritian courts have adopted the English Quincecare duty, which requires banks to refrain from executing a customer’s order if they have reasonable grounds to suspect that the order is an attempt to misappropriate funds. The duty is not triggered by mere speculation but by circumstances that would cause a prudent banker to question the legitimacy of the transaction. The courts have emphasised a balanced approach: the duty of care must not be so onerous as to impede the efficient operation of banking, but it must be robust enough to prevent the facilitation of fraud.
The courts have clarified that not every irregularity or suspicion requires intervention. The anomaly must be such that a reasonable banker would make an enquiry. In Moosajee v Bramer Banking Corporation Ltd (In Liquidation) [2025 SCJ 314], the court found that discrepancies in signatures, unexplained changes in email addresses, and irregularities in fax transmission details constituted sufficient anomalies to require further verification by the bank. The bank’s failure to act on these red flags amounted to a breach of its devoir de vigilance.
Conversely, in Chetty S. R. & Ors [2018 SCJ 144], the court found that the bank had taken reasonable steps to verify the authenticity of instructions and signatures, and there was no evidence of obvious forgery or irregularity that should have put the bank on notice. The bank was therefore not held liable.
The role of automated payment systems and third-party claims
The evolution of banking technology has introduced new complexities, particularly with the widespread use of automated payment systems such as Straight-Through Processing (STP).
In EOS Mascarenes Ltd v The Mauritius Commercial Bank Ltd [2025 SCJ 114], the court addressed whether a bank’s reliance on automated systems that match only account numbers (and not beneficiary names) constitutes negligence. The court held that, given the volume and speed of modern transactions, it is not economically feasible for banks to manually verify beneficiary names in every case. Unless there is an anomalie apparente, the bank’s use of such systems does not amount to a breach of duty.
Importantly, the court in EOS Mascarenes Ltd also clarified that the bank’s duty of care does not generally extend to third parties with whom it has no contractual relationship, even if the third party is the intended beneficiary of a payment. The duty remains primarily owed to the customer, and liability to third parties arises only in exceptional circumstances, such as when the bank is put on notice of fraud or irregularity.
Exclusion clauses and public policy
A notable point from Moosajee v Bramer Banking Corporation Ltd (In Liquidation) [2025 SCJ 314] is the court’s treatment of contractual clauses that seek to exclude or limit the bank’s liability for losses arising from acting on faxed or emailed instructions. The court held that such clauses cannot absolve the bank of its fundamental duty of vigilance, as this would be contrary to public policy (l’ordre public). The bank cannot contract out of its obligation to act with reasonable care and to protect its customers from foreseeable harm.
These principles collectively reinforce the importance of vigilance, reasonableness, and customer protection in the Mauritian banking sector, while also recognising the practical realities of modern banking operations. These cases serve as a reminder for banks to review procedures for verifying unusual transactions and ensure that their employees are suitably trained to detect any anomalie apparente.
Duty of confidentiality
It is also worth highlighting the bank’s statutory duty of confidentiality. The Banking Act 2004 imposes a strict duty of confidentiality on banks in Mauritius. Accordingly, a bank cannot disclose directly or indirectly to any person any information relating to the affairs of any of its customers without the prior written consent of the customer or their personal representative.
There are certain exceptions to this statutory duty of confidentiality which include inter alia circumstances where the customer is declared bankrupt in Mauritius or is being wound up, civil proceedings arise involving the bank and the customer or their account and the bank is served with a garnishee order attaching monies in the account of the customer.
Moreover, in the matter of Stanford Asset Holding Ltd and Anor v AfrAsia Bank Ltd [2023 PRV 11], the Judicial Committee of the Privy Council affirmed that a victim’s inability to identify and pursue wrongdoers outweighed concerns about banking secrecy, especially where no adequate alternative remedy existed. In such instances, the Privy Council held that the duty of confidentiality under the Banking Act 2004 did not preclude the issuance of a Norwich Pharmacal order by the courts in Mauritius.
Accordingly, in addition to their duty of vigilance and care, a bank also has a duty to cooperate with victims of alleged fraud where a Norwich Pharmacal has been issued. This serves as a further motivating factor for banks to implement the necessary controls and measures to detect any potential fraud and/ or apparent anomalies.
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