Norwich Pharmacal Orders: A Proper Purpose Test

A Norwich Pharmacal Order against an ‘innocent’ third party will only be granted if the court is satisfied it is for a ‘proper purpose’, a court has ruled. ParrisWhittaker are award-winning attorneys with years of experience advising clients seeking these orders to secure vital information to assist their cases. We also represent clients defending applications.

The ruling,¹ recently handed down by the UK’s High Court, is noteworthy because the court effectively expanded the conditions to be satisfied before the court will grant a Norwich Pharmacal Order (NPO). The ruling has important persuasive authority on the courts in The Bahamas.

What is a Norwich Pharmacal Order?

An NPO is a valuable form of disclosure order compelling an individual, company or other organisation to disclose documents and/or information that it is thought will assist in identifying a third party suspected of wrongdoing, eg fraud or other criminal activity.

An NPO order is unique in that it is made against an innocent party who is believed to hold information essential to ascertaining where fault or criminal activity lies. The courts will only grant an NPO where certain conditions are satisfied, namely:

• A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer
• An order must need to be made to enable action to be brought against the ultimate wrongdoer
• The person subject to the order (a) be mixed up in, so as to have facilitated, the wrongdoing; and (b) be able/likely to be able to provide the information required to enable the ultimate wrongdoer to be sued
• Compelling disclosure must be an appropriate and proportionate response in the circumstances of the case

What happened in this case?

The applicant was a party in proceedings taking place in Jersey and Guernsey. She asked the English court for an NPO against a company for the disclosure of the source of certain documents.

She argued that she was the victim of serious wrongdoing, involving the fabrication of banking documents intended to cause her prejudice in the proceedings and falsely implicating her in the receipt of substantial assets.

The judge took the view that the established conditions did not adequately take into account “issues that arise where the issues go beyond domestic proceedings”.  The relief available under an NPO is not available to obtain evidence or disclosure for use in foreign proceedings – the court has no jurisdiction to make such an order because the exclusive remedy is under the respective statutory scheme.

Proper purpose

He went on to say that the court then had to focus on the question as to what purpose is the NPO order being sought: “The identification of the purpose or purposes for which the relief is sought are crucial in multi-jurisdictional cases because if the intended purpose is an illegitimate purpose… the court cannot, or will not, make an order.”

A fifth precondition for an NPO was therefore appropriate: “Is the application made for a legitimate purpose?”

Applying this new ‘Proper Purpose’ test to this case, the judge concluded that it could not be a proper purpose to seek the information for civil proceedings or in connection with criminal proceedings abroad. The Claimant failed to show a legitimate purpose for her application and it was dismissed.

How can we help?

Anyone seeking an NPO, particularly where there are multi-jurisdictional issues involved, should take robust legal advice from commercial lawyers experienced in NPOs. ParrisWhittaker has an outstanding reputation in securing all forms of disclosure orders, as well as defending applications.

For expert legal advice contact Jacy Whittaker on +1.242.352.6112 or email him at info@parriswhittaker.com

¹ Green v CT Group Holdings Ltd [2023] EWHC 3168