norwich pharmacal orders

English courts have extensive powers to order individuals and incorporated entities to provide information on the application of persons intending to commence legal proceedings. Where persons have been innocently caught up in the commission of wrongdoing so as to unknowingly assist in wrongdoing, English courts can order the innocent persons to provide full information to disclose the identity of the wrongdoer(s). This is the Norwich Pharmacal jurisdiction of English Courts. This jurisdiction of the court takes the name of the first case in which this interim relief was made.

Norwich Pharmacal Co. v Customs & Excise Commissioners

An owner of a patent of a chemical discovered that the chemical was being imported into the UK without its permission. That importation was an infringement of the patent rights of the owner. Not knowing the identity of the importers, the patent owner knew that the tax authorities had information which would identify the importers. The Commissioners refused to disclose the information out of a wrongly perceived obligation of confidentiality. The patent owners applied to the Court for an order requiring production of the information.

Norwich Pharmacal Orders

When the House of Lords considered the case, it found that where a third party had innocently become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving full information and disclosing the identity of wrongdoers. If the third party bears expense in assisting compliance with an order, the person seeking assistance is bound to reimburse those expenses. That expense however would be reflected in an award of costs against the ultimate tortfeasors, to be recovered after the trial or judgment.

In a case involving a bank attempting to identify fraudsters, Bankers Trust Co. v Shapira, the Court of Appeal held that this Norwich Pharmacal jurisdiction also required innocent parties to disclose information to interrupt the confidential relationship between two parties (in this case, a banker and its customer). The Court of Appeal found on an interim basis that in truth the sums which the bank sought to recover were those of the bank (the bank was attempting to trace the assets), and there was strong evidence that the bank had been deprived of its money unlawfully. The Court granted the order to place the bank in a position to trace the money through to those committing the fraud. It was an important feature of the case that when the bank applied for orders against an English bank, the court acknowledged that the English bank had innocently been caught up in the fraudulent conduct through no fault of its own and had no personal liability for the fraud. The court was giving effect to the defrauded applicant's right to trace the funds to the ultimate wrongdoer.

Evidence

In order to justify the making of a Norwich Pharmacal Order, the evidence of wrongdoing is required to be very strong. When it is, the innocent party is not entitled to rely on a confidential relationship to prevent the discovery of relevant information and refuse to deliver up full information to identify the wrongdoers. As a consequence of making the order, the applicant is required to give an undertaking to the court that it would pay the respondent's expenses for compliance with the order, and usually be required to undertake to the court to use the information produced for the purposes of pursuing the wrongdoers.

Norwich Pharmacal Relief is a common law discovery (nowadays 'disclosure') order.

Types of Information

The types of information which are usually obtained using this process includes disclosures by innocent persons of:

• names and addresses of those responsible for commissioning torts such as infringement of intellectual property rights (patent, designs, copyright and trademarks) and abuses of confidential information;
• the suppliers of those infringing intellectual property rights, so as to lead the applicant for relief one step closer to the ultimate wrongdoer
• information which would identify whether a cause of action has arisen which the applicant is entitled to sue on. For instance, information may exist which would show that the unknown defendant would be liable for malicious falsehood or defamation;
• intermediaries who stand between the intending claimant and the ultimate wrongdoer;
• banking information;
• subscriber information relating to an IP address where the only information known about the potential defendant is the IP address which was used to commit the tort.

The jurisdiction is not limited by a particular cause of action in the hands of the claimant, as it is of  general application. Notably, persons who are known to be willing participants in the wrongdoing are duty bound to disclose the identity of their accomplices (known as ‘joint tortfeasors’) and not amenable to these orders.

Norwich Pharmacal applications can be prejudiced by delay, and especially by a weak case, thus evidence should be put before the court at the hearing of the application. English courts will be reluctant to make orders where the applicant has not attempted to obtain information from other sources or otherwise exhausted its avenues of enquiry before resorting to the Court. The person seeking the orders must have a genuine intention of commencing proceedings.

Limitations to Norwich Pharmacal Relief

There are limits to the orders which a court would be inclined to make. Simply because an innocent person is ordered to disclose information, does not mean that they will be ordered to give standard disclosure of all documents and materials pertaining to the particular wrongdoing; that jurisdiction is available elsewhere under the rules of disclosure. It is documents which identify the wrongdoers which are required to be produced.

If interim injunctions are said to be warranted in the circumstances, then the grounds for grants of those remedies must be made out in order to obtain that interim relief. Norwich Pharmacal applications may be brought alongside other applications for interim injunctions (such as for provision of information), and may be brought without notice to the person from whom information is sought. Moreover the third party must be operating as a facilitator (as inadvertent as that may be) of the wrongdoing, rather than be a mere witness to unlawful events.

Provision of Further Information

The court also has power to require third parties to disclose documents which indicate how unlawful gains and profits have been applied or where they have been transferred after being in their possession. As such, orders may be obtained against financial institutions to reveal the sums owned by the intended defendant in their possession.