Orders for disclosure are an important tool for litigants seeking access to documents or other information not already disclosed. However, a recent ruling1 overturned a particular type of order – a Norwich Pharmacal order – because of procedural and jurisdictional problems.
The experienced litigation lawyers at ParrisWhittaker are specialists in securing disclosure orders for clients – even in cases where third parties hold the information sought.
An increasing number of businesses rely on positive client and customer reviews as part of their strategy to market themselves. Problems can arise, however, when reviews are not only negative but potentially defamatory.
In this case, a firm of solicitors in England asked the court for a Norwich Pharmacal (NP) order after two anonymous and allegedly defamatory reviews were posted in October 2021 by employees on the defendant’s review website. The firm wanted the defendant to disclose the identities of those who posted the reviews.
Though the UK’s High Court granted the order, requiring the information to be delivered within 14 days, it has now been set aside. The ruling has importantpersuasive authority on the courts in The Bahamas.
What is a Norwich Pharmacal order?
An NP order requires an individual or corporation, who is not a party to the 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.
Out of service, out of jurisdiction
However, issues arose in this case in relation to service of the order on the defendant, which had been effect at a London address. There was a further issue around the jurisdiction of the court. On receiving the documents, the defendant indicated its intention to dispute the court’s jurisdiction and argued that service had not been validly executed.
Unfortunately for the law firm, the judge agreed with the defendant that there had been no valid service. Furthermore, the court did not have jurisdiction to make the NP order, thus scuppering the firm’s attempts at disclosure to find out the identity of the posters.
There were two key reasons for the decision:
Valid service of the order had not been effected – the defendant’s business (Glassdoor Inc) was not being carried on from the London offices of Glassdoor Global Ltd. The court commented that companies can decide they don’t want to be sued in a particular jurisdiction, and it was up to the defendant how it chose to arrange its affairs in the UK.
There was an exclusive jurisdiction clause in the defendant’s Terms of Use which precluded the firm from claiming relief in the jurisdiction of England and Wales. It was the California courts who had exclusive jurisdiction.
The firm was not, therefore, entitled to NP relief and the order would be set aside.
How can we help?
Where a commercial organisation seeks an order for disclosure, including an NP order against a third party, careful attention should be given to:
The identity and location of the company from which the information is sought; and
Whether the contract or relevant terms of use include a jurisdiction clause
It’s therefore vital to take specialist legal advice from experienced commercial solicitors to minimise the risk of expensive and unnecessarily protracted proceedings.
Our award-winning team of commercial lawyers at ParrisWhittaker can assist – contact us urgently.
1BW Legal Services Limited v Glassdoor Inc. Reference: [2022] EWHC 979 (QB)
