Special disclosure orders

Norwich Pharmacal orders

A Norwich Pharmacal order is a procedure whereby it is possible to find out the identity of an alleged wrongdoer. The principle originates from the case of Norwich Pharmacal Co v Customs and Excise Commissioners [1974]AC 133, 175, HL.

Mere witness rule

Some who observes the facts giving rise to a cause of action between two other people can be called as a witness at trial. A witness can be compelled to attend to give oral evidence or to produce documents by serving a witness summons. But, until trial, the witness can refuse to answer questions and to disclose documents. A witness must not be joined as a party for the sole purpose of obtaining disclosure.

In Norwich Pharmacal situations one of the most difficult questions is as to whether the respondent is a mere witness or is someone who has got mixed up with and facilitated another’s wrongdoing.

Defendant a tortfeasor

In the case X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, HL, it was held that where the claimant had a cause of action against the defendant connected with the cause of action against the unknown tortfeasor, the defendant was amenable to the full scope of the court’s wide power to order disclosure on notice, irrespective of the Norwich Pharmacal jurisdiction. 

Real interest in suing

A Norwich Pharmacal order will not be made for the mere gratification of curiosity. The claimant must have a real and unsatisfied claim against the unknown wrongdoer which cannot be brought unless the facilitator reveals the wrongdoer’s identity. This is best fulfilled if the wrongdoer’s name is sought for the purpose of bringing proceedings against him or her.

Remedy is discretionary

The remedy is discretionary. Therefore, even if the basic conditions are made out, there may be public interest reasons for refusing relief. The applicant will generally be expected to have exhausted other avenues for discovering the information, and the court will weigh factors such as the seriousness of the conduct of the alleged wrongdoer.

Procedure

The claimant issues a claim form against the facilitator, claiming disclosure of the identity of the wrongdoer. An interim application seeking disclosure of the wrong doer’s identity is then made supported by written evidence. Once the identity of the wrongdoer is disclosed, the proceedings started against the facilitator have achieved their aim and fresh proceedings should be commenced against the wrongdoer, or the facilitator should be released from the proceedings if there are wrongdoers as other parties.

Pre-action disclosure

Jurisdiction

The court has power to make an order for pre-action disclosure against the likely defendant. Such an order can only be made if four conditions are fulfilled:

  1. The applicant appears likely to be party to subsequent proceedings;
  2. The defendant appears likely to be party; and
  3. The defendant appears likely to have or to have had relevant documents in his or her possession, custody or power; and

Unlock this article now!

 

For more information on:

  • Likely to be a party
  • Discretion
  • Procedure
  • Production of documents against non-parties
  • Jurisdiction
  • Conditions
  • Procedure
  • Inspection of property
  • Before issue of proceedings
  • After issue of proceedings, property in the possession of a party
  • After issue of proceedings, property in the possession of a non-party