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
  4. Advance disclosure is desirable to dispose of the anticipated proceedings fairly, or to prevent the need to commence proceedings, or to save costs.

Likely to be a party

There is no requirement that it be likely that proceedings would be issued, but merely that the persons involved were likely to be parties if subsequent proceedings were issued.

Documents covered

An order for pre-action disclosure can only be made if the documents the applicant wants to be disclosed would be included in the respondent’s obligation to give standard disclosure if proceedings were started. The applicant needs to establish that pre-action disclosure is desirable in order to:

  • Dispose fairly of the anticipated proceedings; or
  • Assist the dispute to be resolved without proceedings; or
  • Save costs.

Discretion

Once the conditions are satisfied, the court has to undertake a balancing exercise to determine whether pre-action disclosure is ‘desirable’ in one of the three ways set out in Civil Procedure Rule 31.16(3)(d)

Procedure

Applications for pre-action disclosure are made by issuing an ordinary application notice supported by written evidence in the anticipated substantive proceedings. Notice of the hearing must be given to the defendant.

Production of documents against non-parties

Jurisdiction

The court has power to order a non-party to produce documents before trial.

Conditions

The conditions that must be satisfied are:

  • The documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
  • Disclosure is necessary in order to dispose fairly of the claim or to save cost

Procedure

An application for disclosure against a non-party can be made at any time after substantive proceedings have been issued. It is made by application notice, and must be supported by written evidence.

Inspection of property

There are wide powers to order inspection, examination, testing, experimenting on and photographing property which is relevant to proceedings. In contrast to search orders, these powers include in some circumstances, jurisdiction to order the respondent to allow the applicant, and the applicant’s adviser’s and experts entry onto the respondent’s premises. The rules provide for three separate situations:

Before issue of proceedings

The only condition that must be fulfilled is that the property may become the subject matter of subsequent proceedings.

After issue of proceedings, property in the possession of a party

Such orders may be made on the case management conference or on an application issued for the purpose at any time after proceedings have been issued, or, in respect of a defendant, after giving notice of intention to defend. No written evidence is necessary.

After issue of proceedings, property in the possession of a non-party

An order for inspection of property against a non-party is sought by issuing an application notice supported by evidence during the course of the substantive proceedings.