Special disclosure orders

Norwich Pharmacal orders

A Norwich Pharmacal order (NPO) is an order for the disclosure of documents or information by the respondent to the applicant which will allow the identity of a wrongdoer to be revealed. The principle originates from the House of Lords case, Norwich Pharmacal Co v Customs and Excise Commissioners (1974).

Threshold conditions of a NPO

To obtain a NPO, the applicant must show:

  • a ‘wrong’ has been carried out, or ‘arguably carried out’ by a wrongdoer (eg, someone who has committed a crime or tort or breached a contract);
  • the disclosure asked for must be needed to allow the applicant to bring legal proceedings or seek another form of redress for the wrongdoing;
  • the respondent must have been involved in the wrongdoing in some way; being a ‘mere witness’ will not suffice.

Once the three threshold conditions have been met, the court will only grant the NPO if the remedy sought is necessary and proportionate and it considers it just to grant it. When deciding whether to exercise its discretion, the court will consider factors such as:

  • whether the applicant has exhausted other avenues for discovering the information;
  • the seriousness of the alleged wrongdoer’s conduct;
  • the strength of the possible cause of action considered by the applicant for the order;
  • whether it is in the public interest to grant the order;
  • whether making an order will deter similar wrongdoing in the future;
  • whether the respondent knew or ought to have known they were facilitating wrongdoing;
  • whether the respondent had accomplices;
  • whether the order might unearth the identities of innocent people as well as wrongdoers, and if so whether such innocents would suffer any harm as a result;
  • the confidentiality of the material sought;
  • privacy rights under Art 8 of the European Convention on Human Rights of the individuals whose identity is to be disclosed;
  • data protection considerations of those whose identity is to be disclosed;
  • the public interest in maintaining the confidentiality of journalistic sources;
  • the applicant’s resources;
  • the urgency of the need to find out the information sought;
  • whether innocent parties can be compensated for their costs.

A NCO 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.

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 wrongdoer’s identity is then made supported by written evidence. Once the identity of the wrongdoer is disclosed, fresh proceedings should be commenced against the wrongdoer.

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:

  • the applicant appears likely to be party to subsequent proceedings;
  • the defendant appears likely to be a party; and
  • the defendant appears likely to have/have had relevant documents in their possession, custody or power; and
  • advance disclosure is desirable to dispose of the anticipated proceedings fairly, to prevent the need to commence proceedings, or to save costs.

Documents covered

An order for pre-action disclosure can only be made if the documents the applicant wants 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 to:

  • dispose fairly of the anticipated proceedings; or
  • assist the dispute to be resolved without proceedings; or
  • save costs.

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

The court can order a non-party to produce documents before trial. Disclosure must be:

  • likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
  • necessary 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. These powers sometimes order the respondent to allow the applicant and their advisers entry onto their 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.