In this article, Ruby Keeler-Williams of Elysium Law discusses Norwich Pharmacal Orders, when they are suitable, and the application procedure
As part of our role in assisting Clients with Litigation, it is important to have a clear understanding of the tools available to obtain evidence and information. One such tool is a Norwich Pharmacal Order (NPO).
What is a Norwich Pharmical Order?
A Norwich Pharmacal Order is a court order that compels a third party, such as a bank or internet service provider, to disclose information or documents that are relevant to an alleged wrongdoer’s involvement in a wrongdoing. The order is named after the Norwich Pharmacal case, which established the principles of this type of order in English law.
In Norwich Pharmacal Co. and Others v Customs and Excise Commissioners [1974] AC 133, the House of Lords held that a person who is innocently involved in wrongdoing could be compelled to disclose information about the wrongdoing to the claimant. The case involved a group of companies that had unwittingly imported goods that were subject to excise duty. The companies sought an order compelling HM Customs and Excise to disclose the identity of the wrongdoers who had evaded the duty. The House of Lords granted the order, stating that the companies had a legitimate interest in the information and that HM Customs and Excise had facilitated the wrongdoing.
When is a Norwich Pharmacal Order suitable?
NPOs are typically used when a claimant knows that a wrongdoing has occurred but does not know the identity of the wrongdoer or the location of relevant evidence. This situation commonly arises in cases involving intellectual property infringement, defamation, or fraud. In such cases, the claimant may need to obtain information from third parties who have been innocently involved in the wrongdoing but who possess information or documents that are relevant to the claim.
An NPO can be granted if the following conditions are met:
- The applicant must have a good arguable case against the alleged wrongdoer. This means that the applicant must show that they have a reasonable chance of success if they were to bring legal proceedings against the alleged wrongdoer.
- The respondent must be mixed up in the wrongdoing, and it must be reasonable to expect that they have the information sought. This means that the respondent must be connected in some way to the wrongdoing. For example, if the alleged wrongdoer has used the respondent’s services or products, the respondent may have information that could help identify the alleged wrongdoer.
- The order must be necessary to enable the applicant to bring or defend legal proceedings. This means that the information sought must be relevant to the legal proceedings that the applicant intends to bring or defend.
- The order must not be sought for an improper purpose. This means that the applicant cannot seek an NPO for purposes such as harassment, or to obtain information for use in a personal vendetta or to gain a commercial advantage.
What is a Norwich Pharmacal Order?
In British Coal Corporation v Dennis Rye Ltd (No. 2) [1988] EWCA Civ J0225-4, the court clarified that NPOs can be granted even if the respondent is not directly involved in the wrongdoing, as long as they have information that is relevant to the case. The court also emphasised the importance of balancing the interests of the applicant and respondent and ensuring that the order is not overly burdensome.
In Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, the House of Lords clarified that NPOs are not limited to situations where the claimant has no other means of obtaining the information. The Court held that an NPO could be granted even if the claimant had other means of obtaining the information, as long as the order is necessary to facilitate the litigation and is proportionate. The Court also emphasized that an NPO is an equitable remedy, and its availability depends on the specific circumstances of each case. The claimant must establish that there is a legitimate interest in the information sought, and that the respondent is likely to have the information or documents that are sought.
This was expanded upon in Rugby Football Union v Viagogo Ltd [2012] EWHC 1908 (Ch). In this case, the court held that an NPO can be granted against a non-party to litigation, provided that the non-party is likely to have information that is relevant to the claim. This ruling expanded the scope of NPOs, allowing claimants to obtain information from third parties who may not be directly involved in the wrongdoing but may possess relevant information.
There are limits to what information can be obtained by a NPO, demonstrated in KPMG LLP v Harbottle & Lewis LLP [2018] EWCA Civ 1460, where the Court of Appeal held that an NPO can be granted against a solicitor who is not a party to the litigation but who possesses relevant information, but that this is subject to the solicitor’s professional duty of confidentiality.
Can Norwich Pharmacal Orders be used against foreign respondents?
In general, a NPO may be obtained against a foreign respondent, but there are limitations.
The case of Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch) dealt with the issue of whether an NPO can be granted to obtain information from a foreign respondent. The court held that NPOs can be granted against foreign respondents, as long as there is a sufficient connection to the UK jurisdiction and the order would not offend principles of comity (respect for other countries’ legal systems).
JSC BTA Bank v Mukhtar Ablyazov & ors (No. 12) [2011] EWHC 202, the court granted an NPO against a foreign respondent who had no assets in the UK, but who had used UK banks to launder money. The court found that there was a good reason to grant the order, as it was necessary to obtain information that would assist in recovering misappropriated assets.
It is important to note that enforcing an NPO against a foreign respondent can be challenging, as the order may not be recognised or enforceable in the respondent’s home jurisdiction. As such, it is important to consider the practicalities of enforcing the order before seeking an NPO against a foreign respondent.
How to apply for a Norwich Pharmacal Order?
To obtain an NPO, a claimant must file an application in court. The application must include specific information about the wrongdoing, the information or documents sought, and the respondent’s likely possession of the information or documents. The application must also show that the disclosure is necessary for the claimant to pursue the litigation and that the order is proportionate. The court will consider several factors when deciding whether to grant an NPO, including the nature of the wrongdoing, the legitimate interest of the claimant in the information sought, and the potential harm to the respondent or third parties. The respondent will have an opportunity to be heard before the court makes a final decision. It is important to note that NPOs can be costly and time-consuming to obtain, and they are not always granted. However, when an NPO is granted, it can be a powerful tool for obtaining relevant information in litigation proceedings.
Conclusion
Norwich Pharmacal Orders can be a valuable tool in Litigation, especially in cases involving intellectual property infringement, defamation, or fraud. NPOs allow claimants to obtain information from third parties who have been innocently involved in the wrongdoing but who possess information or documents that are relevant to the claim. However, obtaining an NPO can be a complex and costly process, and it is important to carefully consider the specific circumstances of each case before filing an application.
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