The Tribune

BY NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

A BAHAMIAN bank has defeated a breach of contract and negligence claim brought by a foreign client over the allegedly “unauthorised” transfer or £3.5m from her account even though a Supreme Court judge found its “procedures were open to criticism”.

Justice Simone Fitzcharles, in a September 9, 2026, verdict, dismissed Irina Vladykina’s claim against Deltec Bank & Trust after finding she had failed to prove the Lyford Cay-based institution “breached its duty of reasonable care and skill” over two payments made from her account more than a decade aho.

The judge also ruled there was a “sufficient objective basis” for Deltec to believe the instructions authorising the transfers had come from Ms Vladykina’s authorised agent and representatives and, as a result, the so-called “waiver” clause in the account opening contract kicked-in to protect the bank.

But, while branding as “imperfect” Deltec’s record-keeping and customer verification procedures, Justice Fitzcharles found that the documents and sequence of events leading to the two transactions meant the Supreme Court could not conclude the Bahamian institution “acted unreasonably in executing either transaction”.

Ms Vladykina had opened an investment account at Deltec, together with her late mother, Serafina Vakula, on June 12, 2014. The account mandate allowed Deltec to act on instructions received from the client and their attorneys, with Julian Radford named as her contact if she was unavailable.

Under a special power of attorney, the mother/daughter duo gave Gabarit International powers to act on their behalf to “invest the cash, securities and any other assets in the account in whatever investments as [Gabarit] shall think fit”. Two of Gabarit’s principals were Xavier Delattre and Jean-Pierre Ribes

The dispute arose when Mr Delattre e-mailed Deltec employee Aisha Johnson on January 13, 2015, copying two other employees in Kenris Albury and Richard Beek. The e-mail, sent from a Gmail account bearing Mr Delattre’s name, forwarded an e-mail from a Mikdam Alkadi over a potential investment in an entity called Prime Properties Investment Fund.

Mr Delattre’s e-mail said they and Ms Vladykina wanted to invest, and ultimately some £2.011m was transferred from her Deltec account on January 30, 2015, for this purpose. Then, on November 30, 2015, Anthony Turner, an attorney with the UK’s Farrer & Company law firm, contacted Chandra Wallace-Whitfield, another Deltec employee, about a further investment from the account into Prime Properties.

This was followed-up by an e-mail from Mr Ribes to Ms Wallace-Whitfield on December 14, 2015, requesting that £1.5m be transferred from Ms Vladykina’s Deltec account to acquire 1.5m Prime Properties shares. The payment was duly made the following day on December 15, 2015.

Ms Vladykina eventually initiated legal action against Deltec for alleged “breach of contract and/or negligence” on December 10, 2021, claiming that the instructions for the transfers were not sent from authorised e-mail addresses.

“The claimant avers that in breach of the express and implied terms emanating from the account opening documents, the bank authorised and completed the transactions without the claimant's consent or authorisation,” Justice Fitzcharles wrote.

“More specifically, the claimant pleads that not only did the claimant not authorise the transactions, but none of the various e-mails with instructions to the bank were sent from jr@gabaritinternational.com as mandated in the 2014 authorised signatory form.”

Deltec, though, rejected her claim on the basis that it was permitted to act on authorised instructions from Ms Vladykina’s agents outside of that specific e-mail address. “Additionally, pursuant to the waiver, the bank was authorised to act on any instructions received by e-mail that appeared to the bank to be given by the attorney authorised to act on the claimant's behalf, and such instructions are deemed by the waiver to be conclusively valid,” Justice Fitzcharles added.

Ruling that the transfers had not been proven as “sham or unrelated payments”, the judge ruled: “The evidence supports that they were presented to Deltec as Prime Properties subscription payments. It also allows for an inference that Prime Properties shares were acquired. These findings, however, do not determine the ultimate destination, value or beneficial ownership of the payments or shares…

“The evidence permits the findings that the instructions appeared to have been sent by persons associated with Gabarit and that they related to Prime Properties subscription transactions.

“In the whole context, for reasons which follow, it is the court's opinion that Deltec established a sufficient basis for its primary case that it acted upon instructions which objectively appeared to be from Gabarit in the performance of its investment management role.”

Justice Fitzcharles acknowledged that the January 2015 payment did create “genuine cause for concern” given its size and the external asset management (EAM) form for the account was not filled out to authorise. And, while there were “unusual features” surrounding the December 2015 payment, Deltec had queried this and received documents supporting the Prime Properties investment.

“On the evidence, the claimant has not established that reasonable care required a direct callback to her or Mrs Vakula rather than further inquiry through the EAM. Further, the claimant has not established that Deltec's decision not to make such a callback fell below the applicable standard of reasonable care and skill,” the judge ruled.

“I therefore find that the evidence does not establish, on the balance of probabilities, that Deltec breached its duty of reasonable care and skill. The bank had grounds for concern, especially in January, and its record-keeping and verification procedures were imperfect.

“But the documentary sequence, the apparent involvement of Gabarit personnel and Mr Radford, the subscription documentation, the later share certificate and the further information obtained before the December transaction prevent the court from concluding that Deltec acted unreasonably in executing either instruction,” Justice Fitzcharles found.

“In my judgment, while Deltec's procedures were open to criticism, it had an EAM instruction, a contemporaneous documentary investment trail and, for December, a management escalation and further explanatory material. The high threshold required to establish gross negligence is not met. Deltec may therefore rely on the waiver, which provides a further and independent answer to the claim.

“The claimant has not established that Deltec breached the contractual mandate or its duty to exercise reasonable care and skill. In any event, the waiver applies and the claimant has not established gross negligence or wilful misconduct to displace it. In the circumstances, the claim is dismissed.”