Commercial Court finds it did not have jurisdiction to permit service of an application for Norwich Pharmacal relief out of the jurisdiction

In a recent decision, the Commercial Court found that it did not have jurisdiction to permit service out of the jurisdiction in respect of an application for Norwich Pharmacal relief, ie an application requiring a third party who had been (innocently) mixed up in wrongdoing to provide information enabling proceedings to be brought against the wrongdoer.  Notably, the judge held – in the first decision of its kind by an English court – that a Norwich Pharmacal order did not constitute "interim relief" under section 25(1) of the Civil Jurisdiction and Judgments Act 1982: AB Bank Limited v Abu Dhabi Commercial Bank PJSC [2016] EWHC 2082.

This decision provides guidance, albeit only at first instance, on what is an uncertain area of the law.  The judge cast doubt on previous authorities that had permitted service of Norwich Pharmacal orders against respondents out of the jurisdiction and indicated that, even if (contrary to the court's decision) it did have jurisdiction to permit service out of the jurisdiction, it should exercise restraint before exercising an "exorbitant jurisdiction" over a foreign bank. The decision cites with approval various passages from Disclosure of Information, Norwich Pharmacal and Related Principles, co-authored by Gary Milner-Moore, a partner in our dispute resolution team.

Overall, this decision suggests that claimants who require information from third parties out of the jurisdiction to enable them to bring proceedings against a wrongdoer may have to look to the relevant local law for assistance. 

James Allsop, a Senior Associate in our disputes team, considers the decision further below.

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Recent decisions on when third parties can be required to disclose information under Norwich Pharmacal jurisdiction

On two occasions in recent months the courts have considered the extent to which a third party must have been (innocently) involved in wrongdoing before it can be required to provide information under the court’s Norwich Pharmacal jurisdiction.

The first decision restricts the scope for Norwich Pharmacal relief post-judgment in aid of execution: NML Capital Limited v Chapman Freeborn Holdings Ltd and others [2013] EWCA Civ 589. The Court of Appeal left open the question of whether Norwich Pharmacal orders can in fact be made post-judgment, but held that in any case an order would not be made simply on the basis that a third party had traded with someone who turned out to be a judgment debtor. The decision suggests that a third party would have to be involved in the wilful evasion of execution before an order could be made.

In the second decision, the High Court adopts a flexible approach to the question of what amounts to sufficient involvement at the pre-judgment stage: Various Claimants v News Group Newspapers Limited and others [2013] EWHC 2119 (Ch). In the court’s view, it was not necessary for the third party to have participated in or facilitated the wrongdoing; the question was whether the third party was more than a “mere witness”.

Gary Milner-Moore and Maura McIntosh comment further on the decisions below. Gary is co-author of “Disclosure of Information: Norwich Pharmacal and Related Principles” which was published by Bloomsbury Professional at the end of April. Continue reading

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.   Continue reading

Court of Appeal confirms Norwich Pharmacal orders cannot be used to obtain evidence for foreign proceedings

The Court of Appeal has confirmed that the English courts do not have jurisdiction to make a Norwich Pharmacal order that evidence be produced for use in foreign criminal proceedings: R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA Civ 118. Rather, the regime by which a third party can be ordered to provide evidence for use in foreign proceedings is exclusively statutory. This broadly confirms the first instance decision on which we commented here and raises questions as to whether a similar approach would be adopted in relation to civil proceedings governed by the Hague Evidence Convention and the Evidence (Proceedings in Other Jurisdictions) Act 1975. Russell Hopkins and Charlie Morgan comment on the most recent decision. Continue reading

Supreme Court upholds Norwich Pharmacal order in face of competing data protection rights

A recent Supreme Court decision clarifies the approach the courts should take in deciding whether to grant Norwich Pharmacal relief in the face of competing data protection rights, and in particular in determining whether the grant of the order satisfies the requirement of proportionality: Rugby Football Union v Consolidation Information Systems Ltd (formerly Viagogo Ltd) (in liquidation) [2012] UKSC 55.

Here the RFU obtained a Norwich Pharmacal order against the operator of a ticketing website, Viagogo. The order required Viagogo to disclose the identities of individuals that had used the website to sell and purchase tickets to rugby matches at Twickenham at inflated prices, in breach of the terms and conditions on which the RFU made the tickets available. On appeal, Viagogo argued that to order disclosure would constitute a disproportionate interference with the rights of the individuals concerned under article 8 of the EU Charter of Fundamental Rights which guarantees the protection of personal data.

The appeal was dismissed by both the Court of Appeal and the Supreme Court. The Supreme Court reiterated the flexible and discretionary nature of the remedy, emphasising that a Norwich Pharmacal order will be made only where it is necessary and proportionate in all the circumstances, and this involves a careful weighing of all relevant factors. Many of those factors are also relevant to an assessment of whether disclosure is proportionate in the context of article 8, which requires weighing the benefit of the information sought against the impact disclosure would have on the individual concerned.

The court rejected the applicant's argument that such benefit had to be looked at narrowly, considering only the particular benefit of the information relating to a particular individual. It was legitimate to take into account the wider context, such as the RFU's aim of allocating tickets in a manner that would enhance the popularity of the sport.

These issues will be explored in a forthcoming book by Simon Bushell and Gary Milner-Moore  to be published by Bloomsbury Professional, which is entitled Disclosure of Information: Norwich Pharmacal and Related Principles. Our Intellectual Property group has also issued an e-bulletin on this decision; click here to view the IP newsflash.

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. Continue reading