Non-party disclosure and Norwich Pharmacal Orders Flashcards
What are non-party disclosure orders?
The court has the power to order a person who is not a party to the proceedings to give disclosure of documents.
When may a court order non-party disclosure?
The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings; and
Disclosure is necessary in order to dispose fairly of the claim or to save costs.
When can an non-party disclosure application be made?
Can only be used once proceedings have actually started.
What is the procedure for non-party disclosure orders?
The application must:
Specify the order sought, including listing the documents sought
Be supported by evidence
Require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection.
Who does the application notice need to be served on?
The application notice must be served on the respondent i.e. the non-party from whom disclosure is sought and any other party to the proceedings.
What are the costs relating to a non-party disclosure order?
The presumption is that the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence.
This presumption may be rebutted and a different costs order made
When are Norwich Pharmacal Orders used?
This type of order provides a solution where court proceedings cannot be commenced because the identity of the defendant is unknown – it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant.
What is the procedure for a Norwich Pharmacal Order?
The CPR does not prescribe the procedure for seeking a Norwich Pharmacal Order
However, if the application is sought before the issue of substantive proceedings against the unknown proper defendant (the wrongdoer), it is usual for the applicant to issue a claim form against the respondent third party who has the relevant information using the alternative issue procedure in CPR 8.
If the Norwich Pharmacal Order is sought after the issue of substantive proceedings, the procedure is an interim application within those proceedings pursuant to CPR 23.
When will the court grant a Norwich Pharmacal Order?
a) Wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer;
b) Order is needed to bring a claim against the ultimate wrongdoer.
c) The respondent is more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and is likely to be able to provide the necessary information to enable the ultimate wrongdoer to be sued.
What is the general rule in relation to costs of a Norwich Pharmacal Order?
Usually, a successful applicant for a Norwich Pharmacal order will pay the costs incurred by the respondent, including the costs of giving the disclosure. The applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings.
