What is a Norwich Pharmacal order and when can it be used?
A Norwich Pharmacal Order (NPO) is a disclosure order derived from a 1974 case law (Norwich Pharmacal v Customs and Excise Commissioner) intended to provide victims of wrongdoing with a quick and efficient means of discovering the identity of those responsible so that they can claim to recover their losses. NPOs are often applied for where a victim does not know the identity of the wrongdoer but are aware of a third party (individuals or companies who are not guilty of any wrongdoing) who holds this information. As case law has developed the extent of discovery sought by NPOs can cover all sorts of other material information that the claimant requires to put a case together against the wrongdoer.
NPO is a common and useful tool in litigation based on the Court’s equitable jurisdiction. You may apply for an NPO before you start a claim, during the legal proceedings, or in enforcement stage in order to:
- identify wrongdoers (such as IP address or email routing/address data to identify the sender of an email);
- identify the full nature of the wrongdoing and enable you to plead your case;
- obtain the source of information contained in a publication;
- trace assets and proprietary claims;
- facilitate execution of a judgment;
- to enable the victim of a wrongdoing to answer allegations made against him.
Legal principles
NPOs are effective because they provide flexible remedy, but the Court will not exercise its jurisdiction to grant an order if the purpose is a mere “fishing expedition” to loosely search for incriminating evidence.
Broadly, there are some well-established conditions to be satisfied for the Court to grant an NPO:
- a wrong must have been carried out, or arguably carried out, by an wrongdoer;
- there must be the need for an order to enable action to be brought against the wrongdoer; and
- the person against whom the order is sought must (a) be “mixed up” in so as to have facilitated the wrongdoing: and (b) be able / likely to be able to provide the information necessary to enable the wrongdoer to be sued.
- since the nature of an NPO is invasive on the third party, the granting of such an order must be necessary and proportionate
Application Procedures for an NPO
If you need to make an application before any action is commenced against the wrongdoer (for instance, you do not know the identity of the ultimate wrongdoer so you do not know who to sue), a specified claim form should be issued to name the relevant third party as a respondent.
If there are already existing proceedings in place, the third party should be joined as a party to the claim (for the purposes of disclosure pursuant to the principle set out in Norwich Pharmacal).
You may ask for legal advice as to whether or not your application should be made with or without notice to the respondent. Normally a notice should be given unless there is a need to keep the proceedings a secret from the respondent, for example, they may be a real risk that the respondent may tip off the ultimate wrongdoer of the application.
The application should be supported by evidence in the form of a witness statement. The contents of the witness statement should include
- The factual background giving rise to the application.
- If an application is made without notice to the respondent, the reason for the secrecy or urgency of the application. The applicant is expected to make full and frank disclosure of all information relevant to the application.
- Evidence that the respondent has been “mixed up” in the wrongdoing.
- The specific documents or information sought for disclosure.
- Why the respondent is believed to be in possession of the documents or information sought.
- The reason why the disclosure is necessary and the intended use of the information sought.
- If appropriate, that disclosure is necessary in the interests of justice and the likely consequence if the order is refused.
- Any other factors that would support the court exercising its discretion favourably.
- Evidence in support of the Applicant’s ability to fulfil the undertaking in damages which might be caused to the respondent if the applicant is called upon to give one.
- Any matters which any party (either the respondent or the wrongdoer) might wish to bring to the attention of the court, pursuant to the applicant’s duty of full and frank disclosure.
You may want to include a gagging order or a penal notice in the NPO. A gagging order prevents the respondent from informing the wrongdoer that the information has been provided to the applicant, for a reasonable period of time. A penal notice, if included, will ensure the order will be enforced by way of committal proceedings.
Criteria for granting an NPO?
The court will take into account the following factors in considering whether discretion should be exercised to grant an order :
- There is a good arguable case that there has been wrongdoing
- The victim needs the order to take action against the wrongdoer
- The respondent is likely to have the relevant documents or information
- whether the applicant is genuinely trying to right a wrong by obtaining this information
- Granting the order is necessary and proportionate given the circumstances of the case
Costs of an NPO
The applicant will normally be ordered to pay the respondent costs for the legal proceedings as well as the costs for the respondent to comply with the disclosure order (if granted). The applicant can ask the Court to make an order that such costs be recovered against the ultimate wrongdoer.
Should you require any additional information in relation to Norwich Pharmacal Orders (NPO) then please get in touch at [email protected] or call us on 0330 127 8888 and our team will be more than happy to help.
