Norwich Pharmacal orders cannot be used to obtain evidence for foreign proceedings

The High Court has held that the regime for compelling evidence, as distinguished from information, for use outside of the jurisdiction is exclusively statutory. Accordingly, a Norwich Pharmacal order cannot be used to order the provision of evidence for foreign proceedings, regardless of whether the foreign jurisdiction provides a mechanism for obtaining such evidence via the statutory regime: R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin). Russell Hopkins and Luanna Schultz comment on the decision.

Legal background

A Norwich Pharmacal order allows a victim of wrongdoing to obtain information or documents from a respondent who is "mixed up" in the wrongdoing, but is unlikely to be a party to any proceedings arising from it. Norwich Pharmacal relief is most often used where the applicant requires the respondent's help to identify the wrongdoer in order to commence a claim, or otherwise to obtain information needed to plead the case.

Statutory regimes allow the English court to order the provision of evidence for proceedings in foreign courts. Criminal proceedings are governed by the Crime (International Co-operation) Act 2003. Civil proceedings are governed by the Evidence (Proceedings in Other Jurisdictions) Act 1975, save in relation to EU member states (apart from Denmark) where the Taking of Evidence Regulation (EC 1206/2001) applies.

Facts

The applicants were arrested in connection with a deadly bombing in Kampala during the 2010 FIFA World Cup Final which was taking place in South Africa. They claimed that they were arrested in Kenya, and then illegally rendered to Uganda, during which time they were subjected to ill-treatment which amounted to torture at the hands of intelligence and/or security agents of Kenya, Tanzania, Uganda, the USA and the UK. The applicants petitioned the Constitutional Court of Uganda, contending that their rendition made the proceedings against them (for which they face the death penalty) unlawful and an abuse of process.

The applicants made a Norwich Pharmacal application for evidence from the UK Foreign Secretary to be used in the proceedings in Uganda. They claimed that the Norwich Pharmacal conditions were satisfied because officers of the UK intelligence services were mixed up in the rendition and ill-treatment, and any evidence held by the Foreign Secretary which would show they were rendered or mistreated would be necessary in the Ugandan proceedings.

The applicants referred to Binyam Mohamed (No 1) [2008] EWHC 2048 (Admin), where the High Court in a much publicised judgment held that the UK Foreign Secretary had a duty to disclose information and documents relating to the treatment of a Guantanamo inmate on the basis that such information was necessary for that inmate's defence in impending US criminal proceedings.

Decision

The court dismissed the application, finding that the English courts do not have jurisdiction to order the provision of evidence for foreign proceedings via Norwich Pharmacal orders:

"…the power of the courts to use Norwich Pharmacal proceedings must, in our view, be developed within the confines of the existence of the statutory regime through which evidence in proceedings overseas must be obtained. Norwich Pharmacal proceedings are not ousted, but where proceedings, such as the present proceedings, are brought to obtain evidence, the court as a matter of principle ought to decline to make orders for the provision of evidence, as distinct from information, for use in overseas proceedings" (emphasis added)

This was the case regardless of whether the statutory regime was in fact a realistic option available to the applicants:

"In our judgment it matters not that there may be no procedure in Uganda for obtaining evidence from the UK to be used in those courts."

Comment

The court emphasised that Norwich Pharmacal proceedings would still be available to obtain information as to the identity of persons and other details about them so that proceedings could be brought in a foreign state (as established by the Court of Appeal in Smith Kline Ltd v Global Pharmaceuticals Ltd [1986] RPC 394). However, the judgment gives no guidance as to how the distinction between information and evidence ought to be drawn. The court acknowledged that the distinction is "not entirely clear", but said it was of no relevance in the present case:

"Whatever difficulties there may be in delineating the information that can be sought under Norwich Pharmacal proceedings and distinguishing it from evidence, they do not arise. What is sought is clearly evidence."

This boundary seems likely to be explored in subsequent cases.

In reaching its conclusion, the court rejected the approach taken in Binyam Mohamed (No 1) and in Shaker Aamer v Foreign Secretary [2009] EWHC 3316 (Admin), where Norwich Pharmacal orders had been used to obtain evidence for the purpose of foreign proceedings. The court stated that in neither case was the issue as to statutory exclusivity raised.

Whilst this does appear to be the first case where the issue of statutory exclusivity has been decided by the court, the issue was raised in United Company Rusal plc and others v HSBC Bank Plc and others [2011] EWHC 404 (QB) only a year earlier. In that case Tughendat J referred to the submission that "[the statutory routes] are the appropriate routes for an applicant to take, rather than a Norwich Pharmacal application, unless there is great urgency, or other good reason, for not following the statutory procedures". He said this was not a point considered in the authorities because in the relevant cases there were no proceedings in existence in the foreign jurisdictions at the time when the Norwich Pharmacal applications were made, but did not address the point further in his judgment.

The court's finding on statutory exclusivity in the present case is in obvious contrast to the more flexible approach alluded to by Tughendat J. Despite the statutory regime being unavailable for the purposes of obtaining the desired relief, the court ruled that Norwich Pharmacal proceedings could not be used to fill the gap.

It remains to be seen whether this decision will be appealed.