A Norwich Pharmacal Order is a court order which allows a person to obtain information and documents from third parties mixed up in wrongdoing.
This guide explains the purpose of a Norwich Pharmacal Order in more detail and how to apply for a Norwich Pharmacal Order in practice.
What is a Norwich Pharmacal Order?
A Norwich Pharmacal Order (sometimes abbreviated to NPO) has existed as a type of discretionary legal remedy for approximately 50 years. It is a type of disclosure order and was established in 1974 by the House of Lords’ judgment in Norwich Pharmacal Co v Customs and Excise Commissioners. The current rules relating to a Norwich Pharmacal Order derive from the general principles set out in that case. Its purpose is to enable a person to obtain information.
Norwich Pharmacal Orders are often used in fraud cases to find out where assets are located and the identities of people who have, or have had, those assets in their possession. It is common for a victim of fraud not to know the identity of a wrongdoer but to know the identity of a third party (meaning another person or entity) who has information about that wrongdoer. Norwich Pharmacal Orders enable a victim to find out who is responsible for having caused them to incur loss and identify any wrongdoers so that legal action can be taken against them.
Organisations such as banks, internet service providers, website operators and telecommunications businesses have significant amounts of information and data. These can be the key to enabling a victim of fraud to recover their losses by locating assets or identifying a wrongdoer and starting proceedings against that wrongdoer. Norwich Pharmacal Orders provide a way of gaining access to documents and information such as bank account details, email addresses and IP addresses, which would otherwise be confidential. The person who has possession of relevant documents and information can be ordered by the court to provide them to the victim.
What are the criteria for obtaining a Norwich Pharmacal Order?
The High Court has recently set out the test for obtaining a Norwich Pharmacal Order in the case of Collier & Ors v Bennett. There are four criteria contained within that test:
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The Arguable Wrong Condition: the applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person.
The applicant will be a person or entity who has been wronged. They might be the victim of a fraud, a person whose intellectual property rights have been breached or a person who has obtained a judgment against someone else who is dissipating their assets in an attempt to evade the consequences of that judgment.
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The Mixed Up In Condition: the respondent to the application must be mixed up in, so as to have facilitated, the wrongdoing.
The respondent is the person who has the information or data which the victim or wronged person wants to obtain. The respondent could be entirely innocent of any wrongdoing despite their involvement, whether they have become involved knowingly or unknowingly. Provided that they are not just a mere witness, however, the court may still order them to provide relevant information, documents or data.
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The Possession Condition: the respondent to the application must be able, or likely to be able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued.
The respondent, against whom the application for a Norwich Pharmacal Order is made, must be likely to have relevant documents or information, which are needed by the victim or wronged person to take action against the wrongdoer.
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The Overall Justice Condition: requiring disclosure from the respondent is an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction.
The court will only order a respondent to provide information or documents if that is just, appropriate and proportionate, taking into account all the facts of the case. It will do this by considering a variety of factors including:
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the strength of the victim or wronged person’s potential claim;
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would requiring the respondent to provide relevant documents or information be in the public interest;
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whether granting the requested order would deter future wrongdoing;
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could the documents or information be obtained from another source;
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how onerous or burdensome it would be for the respondent to comply with the court’s order in practice; and
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how confidential any documents or information are and whether there are any privacy or data protection rights involved.
The decision to grant or refuse an application for a Norwich Pharmacal Order forms part of the court’s equitable jurisdiction. This means that the court will decide whether to grant or refuse an application at its own discretion by balancing any competing factors, such as those set out above.
The application process for a Norwich Pharmacal Order
To successfully apply for a Norwich Pharmacal Order, an applicant must comply with certain rules of practice and legal requirements. By doing so, this gives an applicant the best chance of having their court order granted and upheld, which should help to uncover information from a third party about any wrongdoer and the location of assets. This information can subsequently be used in proceedings against the person responsible for any wrongdoing. The application process includes the following steps:
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Identify the need for the order: determine why the order is necessary and what documents or information are required from the third party, such as the location of assets or the identity of a wrongdoer.
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Gather evidence: collect all relevant evidence that supports your case, shows that wrongdoing has occurred and how the third party has become involved in it.
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Identify the third party: clearly identify the third party from whom information is needed. This could be an individual, company, partnership or any other type of entity who you think has documents or information which are important to your case.
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Set out the information required: specify the exact information or documents you seek from the third party. This request must be proportionate and relevant to your case.
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Draft and file your application: prepare and file your court application form and witness evidence which explains the facts. This should include what documents or information are in the possession of the third party and how they are needed for your claim against a fraudster or wrongdoer.
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Attend a court hearing: be prepared to attend a court hearing where you will present your case and answer any questions raised by the judge or third party respondent.
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Comply with the court order: if the court grants a Norwich Pharmacal Order, you must comply with the terms of that order which is likely to deal with service, costs and use of any documents or information disclosed.
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Serve a copy of the court order: when an order has been granted, the applicant will have to serve it on the third party respondent. Service of the order is achieved by the applicant providing the respondent with a copy of the court order.
An applicant can apply for a Norwich Pharmacal Order either before or after they have started proceedings by filing a claim against a third party fraudster or wrongdoer.
The starting position is that notice of any application is given to the respondent third party who has the required documents or information. If either there is a danger of the respondent informing the wrongdoer of the application or the application is urgent because of a risk of dissipation of assets, the applicant does not need to give notice of the application and court hearing to the respondent. This is known as a without notice application. In those circumstances, the applicant has a duty to the court to provide full and frank disclosure. Any relevant information must be provided to the court, regardless of whether that information supports or does not support the applicant’s case. The application will also have to provide the respondent with a note of what happened at the court hearing.
Who pays for the costs of obtaining a Norwich Pharmacal Order?
The applicant will be responsible for paying the respondent’s costs. This is done by providing an indemnity for the respondent’s reasonable costs incurred in complying with the court order.
Similarly, the applicant will also be required to provide a cross-undertaking in damages. The effect of this cross-undertaking is that the applicant will compensate the respondent and any other third party who incurs a loss if the Norwich Pharmacal Order is wrongly made. The court will require the applicant to provide evidence to show that they can afford to pay those costs and compensation if necessary.
Complying with the terms of a Norwich Pharmacal Order
Documents or information obtained from a third party respondent through a Norwich Pharmacal Order must only be used for the purpose stated in the application and set out in the order. This will be for the purpose of starting or continuing proceedings against any wrongdoer and for no other collateral purpose. An applicant must obtain the court’s permission to use the documents or information for any other purpose. Any non-compliance with the terms of a court order is likely to constitute a contempt of court. Contempt of court is a serious offence punishable by a fine or imprisonment.