No Fishing: Broad Norwich Pharmacal Orders Won’t Be Granted

Securing a Norwich Pharmacal order (a special form of disclosure order) against an innocent third party can be a game-changer for those seeking the missing ‘piece of a jigsaw’ to identify a wrong-doer. However, there is no guarantee an application for such an order will succeed, as a recent case illustrates. The award-winning litigation lawyers at ParrisWhittaker are experienced in successfully securing disclosure orders against third parties.

What is a Norwich Pharmacal order (NPO)?

An NPO is a court order requiring an ‘innocent’ third party (ie a non-party to proceedings) to disclose documents or information that may assist with identifying a person or organisation suspected of wrongdoing, such as fraud or misconduct.

However, the court will not order an NPO unless it is satisfied that on the evidence:

• 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.

What is meant by ‘wrongdoing’?

When lawyers ask the court to make an NPO, they must demonstrate at least a prima facie case that the defendant was mixed up or involved in ‘relevant’ wrong-doing.  Such wrong-doing may be fraud, dishonesty, misconduct or some other form of criminality.

This isn’t the same as accusations of wrongdoing against the defendant themselves, rather that they are inadvertently involved in some way. The UK’s Court of Appeal clarified¹, in 2013, the important principle that the defendant must have been involved in the ultimate wrongdoer’s ‘relevant’ ‘wrongdoing’ for an order to be granted. Involvement in some form of ‘wrong-doing’ is not sufficient to satisfy the court to grant an NPO¹.

In a recent case², the court refused to grant an NPO when it concluded that the applicants had failed to establish a good arguable case of ‘bad faith’ against the defendant. Relying on press articles to prove alleged bad faith would be to “shore up speculation by speculation”. Further, the court saw no inconsistency in the defendant’s explanation of its decision-making to support a case of bad faith.

Furthermore, the applicants had made a wide-ranging application for disclosure for a purpose the judge suggested was a “general review of the evidence” rather than a request to identify a “missing piece of the jigsaw” – the two could not be equated.  The nature of the order sought by the applicants was “extremely broad” and intrusive.

Finally,  nothing in the case made it exceptional; and it was not therefore necessary in the interests of justice to make an NPO.

What does this mean?

NPOs are a valuable tool for applicants seeking information from a third party in relation to alleged wrongdoing, but applications for such orders must be carefully considered and tightly drawn up.

The specialist commercial lawyers at ParrisWhittaker are experienced in successfully securing NPOs and other orders for disclosure against defendants – both before proceedings have begun and during litigation.  For urgent and robust advice, contact us now on +1.242.352.6112 or info@parriswhittaker.com

¹NML Capital Ltd v Chapman Freeborn Holdings Ltd & Ors) [2013] EWCA Civ 589

²AQR Capital Management LLC v The London Metal Exchange [2022] EWHC 3313 (Comm)