High Court grants Norwich Pharmacal orders against solicitors to assist in investigating alleged forgery

The High Court recently granted a Norwich Pharmacal order against a firm of solicitors requiring them to disclose the identity of a consultancy from whom they obtained a report which their client had deployed in litigation against the claimants. The court found it was strongly arguable that the report was a forgery and was put together with assistance from an insider in the claimants' organisation, and there was a realistic prospect that the information would assist the claimants to identify the wrongdoer and obtain redress: Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2573 (Comm).

Notably, the court:

• rejected an argument that the lawyers were not sufficiently "mixed up in" the events as required for Norwich Pharmacal relief, having simply been provided with a copy of a document on which they were asked to advise. In the court's judgment, the lawyers were not a mere onlooker or witness, but were actively involved in the verification and deployment of the document in the proceedings – albeit without knowledge of the wrongdoing
• confirmed that the information sought under a Norwich Pharmacal order does not have to enable the applicant, without more, to seek redress against the wrongdoer. It is sufficient if there is a realistic prospect that the information will assist in identifying the wrongdoer, eg by identifying a "middleman" who may be able to identify the wrongdoer.

The decision is also of interest for the court's conclusion that the required information as to the identity of the consultancy was not protected by litigation privilege. The court applied the approach established by the Court of Appeal in Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) [2022] EWCA Civ 1484 (considered here) - that the identity of those communicating with a lawyer is not in itself privileged unless disclosing that identity would tend to reveal something about the content of communications with the lawyer or the litigation strategy being discussed.

In the present case, the court held that identifying the consultancy from whom the alleged forgery was obtained would reveal nothing about the content of any privileged communications or the litigation strategy, not least because the client had already deployed the contents of the report in the underlying litigation.

For a detailed discussion of the decision, see this post on our Litigation Notes blog.