Overriding confidentiality to identify wrongdoers: third party disclosure orders – a powerful tool in the right hands03 Jun, 2021 - Other | by Grosvenor Law
In certain circumstances, the closely protected principles of confidentiality and privacy can be overridden by the Court with the key purpose of remedying wrongdoing, often because it is the only effective way to give justice.
The concept of a Norwich Pharmacal  order originated from a 1974 House of Lords decision in which the Court ordered that a third party to a fraud provide information regarding the identity of the wrongdoer. Since then, the tool has been more formally recognised in the Civil Procedure Rules, and been applied in a multitude of situations.
Such orders can be made prior to commencing proceedings of any sort, and can be a way in which to obtain information about identities or assets, to assess whether or not to litigate, or to prevent steps being taken – even innocently – which can cause further damage. An application can also be made when proceedings are already in progress which may have the benefit of strengthening your case.
A Norwich Pharmacal order may be useful in many scenarios, but common examples include making an application:
- against a bank for details associated with an account which may have been used to defraud you;
- against an online publication service where defamatory statements have been made about you by an unknown person; and
- against a newspaper that has received and published confidential information unknowingly.
The practical first step is to contact the third party who holds the information that will assist identifying a wrongdoer (provided they are not likely to alert the alleged fraudster of your enquiries). More often than not a third party will not be in a position to disclose information to you without a Court order for reasons of confidentiality, or other duties that it may owe to the alleged wrongdoer. In some cases the third party, even though they will insist for that reason on being served with a Court order, will not in any practical sense oppose an application being made, as such third parties are often mixed up in the wrongdoing innocently.
Once confirmation has been provided by the third party that a Court order is required, the next step is to make an application. The third party may also object to the application altogether rather than remaining neutral. In either case you must show that the requirements for a Norwich Pharmacal are met and prepare careful evidence in order to persuade the Court to exercise its discretion in this powerful jurisdiction.
Requirements which need to be met
- A wrong must have been carried out, or arguably carried out, by a wrongdoer
- An order must be necessary to give you the information required to litigate, which means that there must be no other methods available to obtain the information
- The third party against which the order is sought must either: have facilitated the wrongdoing (even innocently); or likely be able to provide information necessary to sue the wrongdoer
- It greatly assists to be as specific as possible about the wrong committed and the information required as the Court will not facilitate a fishing expedition
- The order must be necessary in the interests of justice
- You must be able to cover the third party’s reasonable costs of providing the information sought and complying with the order
How can this help you?
If you or your company has been the victim of wrongdoing (whether criminal or civil), but there is crucial information missing before a claim can be brought – for example it has been carried out by an as-yet-unknown perpetrator, or where further information is needed to ascertain the location of property – you should seek legal advice to establish whether or not to make an application to Court pursuant to the Norwich Pharmacal jurisdiction.
If it exercises its discretion in your favour on the evidence provided, the Court can make an order ensuring that the identity or other information is disclosed to you, following which your legal representatives can advise you on the next steps in pursuing a remedy. You may be able to claw back financial losses or recover property, bring proceedings against the actual wrongdoer, or report the matter to the Police for example, all of which may have been impossible or more difficult without knowing wrongdoer’s identity.
Sophie Adams is a managing associate in Grosvenor Law’s commercial litigation team, where she advises on complex, large scale disputes.