Norwich Pharmacal order refused where it would expose recipient to risk of criminal liability under foreign law

In the context of an action alleging unlawful means conspiracy, the High Court dismissed the claimants' application for a Norwich Pharmacal order (NPO) to compel a Liechtenstein financial services company to provide information identifying the individuals behind a payment which was alleged to form part of the conspiracy. Although the court found that it was otherwise an appropriate case for an NPO, it refused to make the order on the basis that providing the information would expose the foreign company to the risk of criminal liability under Liechtenstein law, as well as the fact that the NPO would not be readily enforceable in Liechtenstein given the absence of any treaty or other mechanism for the enforcement of English court orders: Magomedov v Kuzovkov [2024] EWHC 2527 (Comm).

As previously reported, it is now easier to obtain permission to serve an NPO application out of the jurisdiction, since the introduction of a specific jurisdictional gateway for such applications (and similar Bankers Trust Order applications) in 2022.  However, as this case illustrates, there are still challenges to securing such orders against foreign parties where there is evidence that the required disclosure would breach a foreign law.

This can be contrasted with the position where an existing party to English litigation resists providing disclosure in the proceedings on the grounds of potential liability under a foreign law.  As discussed in this blog post, the court adopts a stricter approach in such cases, including considering whether there is a real risk of prosecution in the foreign jurisdiction.

For more information, see this post on our Civil Fraud and Asset Tracing Notes blog.