New book by Herbert Smith Freehills disputes partners: "Disclosure of Information: Norwich Pharmacal and Related Principles"

Simon Bushell and Gary Milner-Moore's new book "Disclosure of Information: Norwich Pharmacal and Related Principles" was published by Bloomsbury Professional at the end of April. It is the first and only text dedicated to the Norwich Pharmacal jurisdiction and was finalised only after recent high profile decisions of the Supreme Court (in RFU v Viagogo – see post) and the Court of Appeal (in Omar – see post). The book outlines the origins of the Norwich Pharmacal jurisdiction and the key stages in its development as well as the requirements for a successful application. Some of the principles underlying Norwich Pharmacal relief are outlined below.  

Background

The Norwich Pharmacal remedy emerged in the ruling of the House of Lords in Norwich Pharmacal Company and others v Commissioners of Customs & Excise [1973] UKHL 6 as a perhaps obvious (but no less controversial) response to a perceived "gap in justice": the customs authorities held the names of importers of products which infringed the claimant's patent rights and an order requiring disclosure of those names was the only means by which the claimant could bring its claim.

The jurisdiction was developed quickly: to assist the victims of fraud in obtaining information from innocent banks holding laundered funds secreted there by fraudsters and their accomplices; to reveal the identity of journalistic sources who were in breach of their duty of confidence; and to require an employer to identify an internal complainant to enable an employee to bring defamation proceedings.

As the jurisdiction has evolved, at least three guiding principles have been highlighted along the way. First, the tendency has been to grant disclosure where otherwise no proceedings at all could be brought by the claimant; secondly, it must be "necessary" to grant the disclosure by way of Norwich Pharmacal relief; and thirdly, as a creature of judicial creativity, the remedy should be "flexible".

No proceedings without disclosure

It was originally considered important to pay heed to the "mere witness" rule, namely the rule that a witness could not be compelled to give discovery before trial where that person could be called as a witness at a trial in due course.  Norwich Pharmacal relief against such a "witness" was nonetheless justified in certain circumstances because no trial would ever be possible without that witness's disclosure. 

This guiding principle justified the expansion into what are commonly known as Bankers Trust orders, whereby information can be ordered to be disclosed to assist a claimant to trace and protect a trust fund since otherwise any recovery proceedings would be potentially futile.  The principle has also helped to shape the "missing piece of the jigsaw" order where the claimant already knows the identity of the alleged wrongdoer but needs from a third party a vital piece of information without which he cannot formulate and issue his claim.  

However, the courts also concluded that the relief should not be confined to situations where it was envisaged that the claimant would sue with the benefit of the information disclosed.  Perhaps the claimant might want to initiate some quasi-judicial process, an arbitration, or indeed merely know the names of persons to whom defamatory remarks had been made with a view to writing to them to put the record straight.  More recently, the courts have moved away from the mere witness rule completely and have focused instead upon flexibility.

Necessity and flexibility

In one way or another the flexible adaptations of the first guiding principle above have all been considered "necessary" in the sense of being in the interests of justice, and "necessary" in the sense that the relief was needed by the claimant to pursue a claim or other genuine legal redress.

At one stage, it was thought that Norwich Pharmacal relief was a "remedy of last resort" and one where the "necessity required to justify exercise of this intrusive jurisdiction is a necessity arising from the absence of any other practicable means of obtaining the essential information" (in particular Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625). 

This raising of the bar could have restricted the jurisdiction's freedom of movement, but it did not last long, and flexibility was restored in The Queen on the Application of Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048.  In that case the flexibility of the remedy in the face of novel circumstances was heavily stressed by the Divisional Court. The case was brought by an individual accused of terrorist charges in the US and facing the death penalty, where he alleged that a confession he had given had been coerced from him by means of torture. He was seeking urgent disclosure from the UK Government.

The Mohamed case is notable for several reasons. First, it illustrated yet a further form of legal redress for which the relief was needed; secondly, the test of necessity was not to be measured strictly by reference to whether the claimant had exhausted all other available avenues; and, thirdly, very little attention was paid to the fact that the information being sought was in respect of ongoing foreign proceedings in circumstances where there were overlapping mechanisms for obtaining evidence in use in such proceedings. The court in Mohamed seemed to pay high regard to the specific facts of the case, considering them to be "truly exceptional" and justifying disclosure of the information sought "to serve the ends of justice".

Omar case: impact on flexibility?

The basic facts in R (on the application of Omar and Others) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA 118 are in some respects similar to those in the Mohamed case. The applicants had been accused of involvement in certain bombings and had made applications to the Ugandan Constitutional Court alleging, amongst other things, unlawful rendition and ill treatment.  They applied for Norwich Pharmacal relief against the Foreign Secretary contending that the UK intelligence services had been involved during their detention. They proposed to use any evidence in support of their application to the Constitutional Court.  It was common ground that the Constitutional Court proceedings were criminal in nature and a key question became the overlap with the statutory regime for international cooperation contained in the Crime (International Co-operation) Act 2003.

In Omar, the Court of Appeal concluded that the common law remedy of Norwich Pharmacal relief could not have been intended by Parliament to survive the introduction of the statutory regime which was a "carefully calibrated scheme".

The Omar decision is confined to the regime for assistance in relation to criminal matters under the 2003 Act.  This leaves open the question as to the availability of Norwich Pharmacal relief for use in foreign civil proceedings where the Evidence (Proceedings in Other Jurisdictions) Act 1975 is in play. The relief is likely to remain available for the purpose of initiating such foreign civil proceedings, but perhaps not so where the proceedings are on foot and statutory regime is available. 

A particular difficulty exists where, for example, important information is sought for use in ongoing civil proceedings abroad but the statutory regime is unavailable, either for reasons of being too late in the day or because the possibility of seeking assistance is excluded by the foreign tribunal, possibly inexplicably.  In these circumstances, how far will the English courts be prepared to go?  The answer to this may lie in an examination of the principles of "expediency" in the context of the granting of interim relief under section 25 of the Civil Jurisdiction and Judgments Act 1982.  The cases decided under that provision give useful guidance as to when the court is likely to favour the grant of relief in support of contemplated or actual proceedings abroad.  In this context the English courts will pay regard to whether, for example, the relief granted is likely to overlap with orders made by the primary court.

Conclusions

Where does this leave Norwich Pharmacal's fundamental flexibility?  There is no doubt that the Omar decision has brought some much needed "discipline" to an area of obvious overlap.  Norwich Pharmacal was never intended to be used as a way of "queue-jumping" or even forum shopping when it comes to securing evidence for use in ongoing foreign proceedings.  One of the issues with this particular jurisdiction is that in many cases there is a lower level of opposition from the relevant third party, which means that the degree of legal scrutiny given to some applications is understandably light.  From time to time its flexibility is abused by hopeful (and mostly unsuccessful) litigants and less frequently it has come to the aid of a deserving claimant (for example in the case of Mohamed) where, literally, time was running out.

Norwich Pharmacal remains nothing if not flexible, but it cannot meander through the courts of the land looking to plug every "gap in justice" there happens to be.

These issues are considered further in "Disclosure of Information: Norwich Pharmacal and Related Principles".