Even though an ‘innocent’ third party may have ‘bystander’ knowledge of the activities or whereabouts of someone accused of wrongdoing, that is not enough for a court to order disclosure under a Norwich Pharmacal order.
The award-winning commercial lawyers at ParrisWhittaker have a successful track record in securing in disclosure orders, including Norwich Pharmacal orders against third parties.
A Norwich Pharmacal order is a court order imposed on another (usually innocent) party who is not a party to proceedings. The order requires it to disclose documents and information that might assist with identifying a person or organisation suspected of wrongdoing.
However, three conditions must be satisfied before the court will order Norwich Pharmacal relief:
A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer
There must be the need for an order to enable action to be brought against the ultimate wrongdoer, and
The person against whom the order is sought must: (a) be mixed up in, so as to have facilitated, the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
The UK’sCourt of Appeal has issued a notable ruling1 on the whether a Norwich Pharmacal order was appropriate in respect of a third party’s mobile phone records. The ruling is important and has highly persuasive authority on the courts in The Bahamas.
What’s the background?
The claimant, an insurance company, asked the court for a Norwich Pharmacal order in respect of mobile records in support of its suspicion that a home insurance claim was fraudulent. The defendant was Vodaphone UK – the mobile phone provider for the insured’s mother. Vodaphone was said to have call records and cell site data showing the location of her phone at the relevant time.
The insured had made a claim for the cost of alternative accommodation following an “escape of water” into his London home. The amount allowed under the policy while the family was living with the policy holder’s parents was capped at £1,000.
The claimant had been footing the bill for their housing for several months until they become concerned that it was not still a genuine claim – particularly given that enquiries revealed a rented property in which they began to rent was owned by the policy holder’s parents. The rent for the property, covered by the claimant, was £1,800 per month.
What did the court decide?
The Court of Appeal dismissed a ruling refusing the insurer’s access to Vodaphone’s mobile records and data requested. This was because the power to order disclosure in such circumstances does not extend to “mere witnesses”.
In this case, the crucial question was whether Vodaphone was more than a “mere witness” or “bystander”. The appeal judges did not find any basis in the argument that as the insured’s mother’s mobile phone service provider, Vodaphone was more than a mere witness or “engaged with the wrong”. Its phone records may help establish the truth of the mother’s whereabouts, but in that sense Vodaphone was a mere witness.
However, the Court of Appeal did raise the possibility that if the insurers were to bring a claim against the policy holder, they might then be able to secure an order against Vodaphone for disclosure of the records under the civil court rules (CPR 31.17).
What does this mean?
Disclosure is an important part of any dispute resolution. Where Norwich Pharmacal relief is sought, the claimant must understand the requirements that must be satisfied before the court will make such an order. The fact that the defendant may be a witness to someone’s activity does not automatically entitle you to disclosure of information they may hold to assist in your case.
It is vital to contact the expert commercial lawyers at ParrisWhittaker for robust advice and representation as early as possible when a dispute arises.
1EUI Limited v UK Vodafone Ltd [2021] EWCA CIV 1771 )
