4.6 Non-party disclosure and Norwich Pharmacal Flashcards
Under what circumstances can the court order a non-party to disclose documents?
CPR 31.17(3)
(a)
The documents … are likely to support the applicant’s case or adversely affect the case of one of the other parties …; and
(b)
disclosure is necessary in order to dispose fairly of the claim or to save costs.
When can an application for an order for disclosure against a non-party be made (under CPR 31.17)?
Once proceedings have already started.
Is the court mandated to order non-party disclosure once the CPR 31.17 criteria are met, or does the decision to order lie within the court’s discretion?
CPR 31.17(3)
The court may make an order under this rule …
How will the court go about determining an application for disclosure against a non-party?
Mitchell v News Group Newspapers Ltd [2014] EWHC 1885 (QB)
1.
Determine whether the criteria in CPR 31.17 are met; then
2.
In its discretion, decide whether to order disclosure, taking into account the overriding objective, the public interest (where relevant), etc.
What is the effect of CPR 31.18?
[CPR 31.18 preserves Norwich Pharmacal.]
CPR 31.18
Rules 31.16 and 31.17 do not limit any other power which the court may have to order -
(a)
disclosure before proceedings have started; and
(b)
disclosure against a person who is not a party to proceedings.
What case enables you to deal with the situation where you don’t know the identity of the person you want to bring a claim against, but some innocent third party does?
Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133
Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133
A person innocently caught up in the wrongdoing of another can be compelled to disclose the identity of the wrongdoer so that proceedings can be brought against the proper defendant.
What are the criteria for the court to be able to grant a Norwich Pharmacal order?
Mitsui Limited v Nexen Petroleum UK Limited [2005] EWHC 625 (Ch) [21]
(i)
a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
(ii)
there must be the need or an order to enable action to be brought against the ultimate wrongdoer; and
(c)
the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
What can be identified as a “wrong” for the purposes of a Norwich Pharmacal order?
Orb arl v Fiddler [2016] EWHC 361 (Comm) [82]
A wrong may be a crime, tort, breach of contract, equitable wrong or contempt of court.
When will a Norwich Pharmacal application be made?
Before commencing proceedings - you make the application because you need to know D’s identity so that you can commence proceedings against her.
How “mixed up” in the ultimate wrongdoer’s wrongdoing must the non-party be for the court to make a Norwich Pharmacal order against it?
Various Claimants v News Group Newspapers Limited and others [2013] EWHC 2119 (Ch)
The non-party must be more than a mere witness or bystander to be sufficiently engaged in the wrong.
Is Norwich Pharmacal subject to proportionality?
Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033
A Norwich Pharmacal Order must be necessary and proportionate in all the circumstances of the case.
What if a potential claimant wants to use a Norwich Pharmacal Order to make a journalist divulge a source?
Section 10 Contempt of Court Act 1981 [The claimant must satisfy the court that disclosure is necessary in the interests of: 1. Justice; 2. National security; or 3. To prevent crime or disorder.]
Who pays the costs of a Norwich Pharmacal application?
Normally, the applicant although she may be able to recover costs from the losing party if she wins the claim.
