Is Norwich Pharmacal Relief Available While Criminal Investigations Are Ongoing?

An order requiring an innocent third party to disclose information or documents can be made even if there is an ongoing criminal investigation, it has been decided in a notable ruling. The award-winning litigation lawyers at ParrisWhittaker are experienced in successfully seeking disclosure orders, including Norwich Pharmacal Orders, on behalf of their clients.

What is a Norwich Pharmacal Order?

The court can grant a Norwich Pharmacal order (NPO) to a party who is seeking information from an ‘innocent’ third party – typically, information that can help to identify a wrong-doer. An NPO is a special form of disclosure order imposing obligations on a non-party to litigation.

Where an applicant is seeking an NPO there are, of course, no guarantees the court will make such an order and the costs implications of losing can be significant.  The judge will need to be satisfied that the evidence demonstrates that:

• A wrong must have been carried out, or arguably carried out, by the ultimate wrongdoer
• An order is needed to enable legal action against the ultimate wrongdoer, and
• The person or organisation against whom the order is sought must: (a) be mixed up in, so as to have facilitated, the ‘relevant’ wrongdoing; and (b) be able/ likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.

In a recent case¹, the applicant appealed and eventually succeeded. The Judicial Committee of the Privy Council (the final appeal court for UK overseas territories and Crown dependencies, including The Bahamas) has overturned a ruling of the Supreme Court of Mauritius.

What happened in this case?

In February 2022, as a result of an alleged fraud, more than USD11 million was transferred from an account belonging to Stanford Asset Holding (Stanford) at AfrAsia Bank in Mauritius to the bank account of Key Stone Properties. Other than around USD 4million (which is still sitting in Key Stone’s account and has been frozen), the money has been transferred into the accounts of third parties whose identities are unknown.

Law enforcement authorities in Mauritius (the CCID and ICAC) are investigating the alleged fraud and have wide statutory powers to obtain the necessary information.  Meanwhile, the applicant (Stanford) sought an NPO requiring the Mauritius bank to disclose the identities of the recipients. The Mauritius Supreme Court refused the application, in part given the ongoing criminal enquiries being made by the CCID and ICAC.

The Privy Council allowed the appeal. Giving the judgment, Lord Justice Underhill said it was not wrong for the court to “afford appropriate and proportionate assistance” to fraud victims so that they can pursue their own civil remedies.

He stated that a public authority’s investigative role in respect of a suspected fraud is not the same as that of the fraud victim seeking to recover their money. “Their interests and priorities are unlikely to be identical; nor in any event may the authority’s special powers be relevant where the proceeds of the crime are no longer in the jurisdiction”, he added.

The NPO sought by Stanford was granted, paving the way for it to attempt to find out where their missing millions have gone.

What does this mean?

NPOs are a vital tool for applicants, such as fraud victims, to gain information from a third party who can assist in identifying those responsible for wrongdoing.

This important ruling makes clear that the fact local law enforcement authorities may be conducting a criminal investigation, with wide powers to secure information from third parties – does not interfere with the fraud victim’s rights to pursue the civil remedies open to them.

The specialist commercial lawyers at ParrisWhittaker are experienced in successfully securing NPOs and other orders for disclosure for clients.  For urgent and robust advice, contact us now on +1.242.352.6112

¹ Stanford Asset Holdings Ltd and another (Appellants) v AfrAsia Bank Ltd (Respondent) (Mauritius) JCPC 2023/0011