Disclosure orders are a critical tool in the course of litigation where one party fails to disclose documents or information, or where a third party possesses information. The experienced litigation lawyers at ParrisWhittaker are highly experienced in securing disclosure orders for their clients.
Recently, the UK’s High Court considered Norwich Pharmacal orders against third parties, in a case where the issues were particularly complex. The ruling has important persuasive authority on the courts in The Bahamas.
What’s a Norwich Pharmacal order?
A Norwich Pharmacal (NP) order is a court order imposed on an individual or corporation (which is not a party to proceedings) to disclose documents and information that might assist with identifying a third party suspected of wrongdoing, such as fraudulent or other criminal activity.
The order is placed against an innocent party not suspected of any wrongdoing, but who holds information essential to ascertaining where the fault or criminal activity lies.
There may be an interaction between the NP order and pre-action disclosure, which is where the parties to litigation are required to disclose relevant documents and information to each other before a final hearing.
What was the background?
The background to the case is complex. To summarise key elements, a dispute arose between the defendant, who had held an investment in an Icelandic bank which then failed; and the claimants – one of which had made investments leading to the creation of a Luxembourg bank to which non destressed assets of the Icelandic bank were transferred.
A lawyer working at the claimants’ office had access to an archive of the first claimant’s personal emails. The defendant, who was made bankrupt in early 2019, believed his investments in the Icelandic bank had been fraudulently transferred to the Luxembourg bank. The claimants sought an NP order against the defendant.
The court discussed the interplay between NP jurisdiction and pre-action disclosure, ruling that NP jurisdiction was properly invoked – despite the defendant arguing that pre-action disclosure was available against him.
As to the defendant’s claim to having privilege against self-incrimination, the judge stated that it was “axiomatic that the privilege against self-incrimination may only be invoked by someone acting in good faith and for his own protection, and not for some ulterior purpose”. The privilege of self-incrimination did not extend to documents already in existence prior to the court making any order.
There was also the question as to whether the defendant may not be ‘innocent’ and, therefore, whether a NP was appropriate (the defendant had been “mixed up” in the wrongdoing to some extent). The judge, however, made clear that the fact that the defendant may be more than an entirely passive and innocent facilitator did not mean the NP procedure was inappropriate.
So, it is clear the NP jurisdiction is not limited to ‘innocent’ participants.
What does this mean?
Disclosure can give rise to complex issues – particularly where there is an overlap between different disclosure jurisdictions, as in this case. The ruling gives a useful insight into the extent to which the courts are prepared to grant an NP order.
It also shows that a defendant to an application for a disclosure order could, in some cases, be able to claim privilege against self-incrimination. Specialist legal advice from expert disclosure lawyers should be sought. Understanding your rights and the limits to which the court can order disclosure is a vital tool in your case.
What should we do?
If you urgently need to obtain information or documentation from a third party, we may be able secure a disclosure order on your behalf. If you are the subject of a disclosure order and you wish to contest it, contact us urgently.
The solicitors at ParrisWhittaker are tenacious, experienced and willing to protect their clients’ interests robustly, so get in touch with us as early as possible for specialist advice. Contact us at info@parriswhittaker.com
