Norwich Pharmacal Orders | Identifying a Wrongdoer
The case of Norwich Pharmacal v Commissioners of Custom and Excise 1973 2 All ER 943 established that a person who is innocently caught up in the wrongdoing of another, so that they are more than a mere witness to the events, can be compelled to disclose the identity of that wrongdoer thereby enabling proceedings to be brought against that party (‘Norwich Pharmacal Orders)’.
Stuart Southall & Tim Thompson of Kangs Solicitors examine the case in detail.
The Case in Focus | Factual Background
Norwich Pharmacal Co. (‘the company’), was the owner and licensee of a patent covering a chemical compound known as 'furazolidone' approximately thirty consignments of which had been imported into the UK between 1960 and 1970 without the consent of the company, thereby infringing its patent and causing loss and damage.
None of the importations had been licensed by the company. Each of the consignments therefore involved a tortious infringement of the company’s patent.
As the company had failed to discover the identity of the importers, in order to bring legal proceedings, it requested the Commissioners of Customs and Excise (‘the Commissioners’) to provide this information which had been gained whilst the goods had been held in transit sheds upon importation.
As this request was refused by the Commissioners, who claimed they had no authority to release such information, the company brought an action against them seeking an Order for Discovery of the names of the importers.
The Original Judgment | The Precedent of Norwich Pharmacal
At the initial hearing, Judge Graham denied the company’s Application on the following grounds:
- The company had no cause of action against the Commissioners
- As the Commissioners had received the names of the importers in confidence and under a statutory duty, the Public Interest required that they should not be compelled to disclose them
The Appeal | Kangs Appeals Court Solicitors
On Appeal, the decision of Judge Graham was reversed.
Cause of action
It was agreed that Judge Graham was correct that the general rule is that no independent action for discovery can be brought against a person against whom no reasonable action could be taken, or who was in the position of a mere witness to any wrongdoing.
However, the House of Lords decided that an Application for Disclosure of Information against a third-party can be successful provided that:
- If without the requested disclosure, no action could be taken against the wrongdoer; and
- The person against whom discovery is sought had themselves, even if through no fault of their own, in some way, been involved in the wrongful acts of another so as to facilitate the wrongdoing
Clearly, the circumstances of this case fell squarely within these criteria resulting in the House of Lords overturning the decision of Judge Graham.
The company was clearly unable to bring any action unless the identity of the wrongdoer was made known to it. Furthermore, although having committed no fault themselves, the Commissioners had innocently become involved with the wrongful act of the importer.
Although in these circumstances the Commissioners likely incurred no personal liability, they were deemed to be under a duty to assist the company who had been wronged by providing the required information. This was due to the fact that the Commissioners in performance of their statutory duties had been sufficiently involved in the importation of the furazolidine in breach of the company’s patent and were more than a mere witness.
Confidentiality
The House of Lords agreed with Judge Graham that it was the duty of a public body to keep personal information confidential and that the approach taken by the Commissioners was correct.
However, it was stated that there was no statutory provision which prohibited the Court from ordering Discovery if it was in the Public Interest. The judgment applied the principle of public interest of confidentiality and stated that this was outweighed by the interests of justice in disclosing such information.
Accordingly, the Judgment of the House of Lords can be summarised as follows:
- a person innocently caught up in the wrongdoing of another, to the extent they are more than a mere witness, can be compelled to disclose the identity of the wrongdoer enabling correct proceedings to be issued.
- the interests of justice in allowing Disclosure outweighs the Public Interest of confidentiality, provided no statutory provisions apply to the contrary.
Applying For A Norwich Pharmacal Order | The Three-Stage Test | Kangs Dispute Resolution Solicitors
Upon seeking a Norwich Pharmacal Order, the required three point test was summarised in the case of Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch); [2005] 3 All E.R. 511, ChD:
‘(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
(ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
(iii) 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 wrong-doer to be sued.’
Examination of the Three Requirements | Kangs Commercial Litigation Solicitors
- In the case of Norwich Pharmacal, the wrongdoing was the importation of Furazolidine in breach of the patent. However, wrongdoing covers a wide array of law including breach of contract, breach of tort, illegal activity etc.
A reasonable basis that the wrong was committed infringing another’s right’s must be shown.
- The issue of a court Order must be necessary to enable the aggrieved party to assert rights against the wrongdoer, or at least that it is just and convenient in the interests of justice to make the Order.
In P v T Ltd [1997] 1 W.L.R. 1309 the court granted an Order even though it could not be ascertained whether the third party had committed a tort against the applicant and could not identify the appropriate cause of action.
(iii) The person against whom the Order is sought must be ‘mixed up’ in the wrongdoing and not one who is a ‘mere witness’ or ‘bystander’.
In Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, Lord Slynn stated that the person against whom an Order is sought should be shown to have ‘participated’ or been ‘involved’ in the wrongdoing.
Subsection iii (b) requires that the defendant is able to provide the information necessary to enable the wrongdoer to be sued and is the only practicable source of the information sought.
How Can We Assist?
In any circumstances where you are facing loss of any nature arising from the conduct of another, it is essential to seek immediate legal guidance to ensure that your position is protected as far as is possible.
The Team at Kangs Solicitors is highly experienced in advising upon and pursuing issues involving all aspects of Norwich Pharmacal Applications and would be pleased to assist you.
Should you require our assistance please do not hesitate to contact one of our Team below.
Enquiries are welcome by telephone 0333 370 4333 or email at info@kangssolicitors.co.uk
Alternatively, discussions can be held virtually through live conferencing or telephone.
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