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Norwich Pharmacal cases

Mitsui & Co, Limited v Nexen Petroleum Uk Limited

[2005] EWHC 625 (Ch)

High Court Chancery Division 29 April 2005

In Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, it was recognised by the House of Lords that there was a need for an equitable jurisdiction which enabled the court to require a third-party to provide certain pieces of information. The principles established in the case allowed a claimant to seek disclosure from an "involved" third party who had information enabling the claimant to identify a wrongdoer so as to be in a position to bring an action against the wrongdoer where otherwise he would not be able to do so.

Lord Reid described the principle at page 175 as follows:

"...if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."

The required disclosure may take any appropriate form. Usually it takes the form of production of documents, but it may also include providing affidavits, answering interrogatories or attending court to give oral evidence.

In subsequent cases, the courts have extended the application of the basic principle. The jurisdiction is not confined to circumstances where there has been tortious wrongdoing and is now available where there has been contractual wrongdoing: P v T Limited [1997] 1 WLR 1309; Carlton Film Distributors Ltd v VCI Plc [2003] FSR 47; and is not limited to cases where the identity of the wrongdoer is unknown. Relief can be ordered where the identity of the claimant is known, but where the claimant requires disclosure of crucial information in order to be able to bring its claim or where the claimant requires a missing piece of the jigsaw: see Axa Equity & Law Life Assurance Society Plc v National Westminster Bank (CA) [1998] CLC, 1177; Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyds Rep 417; see also Carlton Films. Further the third party from whom information is sought need not be an innocent third party: he may be a wrongdoer himself: see CHC Software Care v. Hopkins and Wood [1993] FSR 241 and Hollander, Documentary Evidence 8th ed p.78 footnote 11.

In order to apply for a Norwich Pharmacal order, the claimant must apply to the court with notice to the respondent unless there is a need for proceedings to be kept secret from the respondent. The claimant may apply for a non-disclosure or “gagging” order in order to prevent the respondent from informing any potential wrongdoers.

As a condition for obtaining the order, the claimant will normally be to indemnify the respondent against costs in relation to the application and to compliance with the order in case it turns out that the respondent was not liable. There is an exception in cases where the respondent is identified as a wrongdoer or has acted unreasonably.

RFU ticket case

The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited)  [2011] EWHC 764 (QB)

High Court 30 March 2011

The background to this case was the run up to the international rugby matches in autumn 2010 and the six nations tournament. The Rugby Football Union (RFU) discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to

protect its policy in relation to tickets.

The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress. The judge (Tugendhat J) referred to Lord Reid's speech in the Norwich Pharmacal case and identified 5 issues for decision:

(a)         were arguable wrongs committed against the RFU?

(b)         was Viagogo mixed up in those arguable wrongs?

(c)          was the RFU intending to try to seek redress for those wrongs?

(d)         was disclosure of the information which the RFU required necessary for it to pursue that redress?

(e)         should the court exercise its discretion in favour of granting relief?

Viagogo appealed to the Court of Appeal then Supreme Court

The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) [2012] UKSC 55

Supreme Court: 21 November 2012 (Heard on 14 June 2012)

Viagogo appealed on a new ground to the effect that granting the order for disclosure represented a disproportionate interference with the rights of the potential wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data.

The Court of Appeal upheld the decision of the High Court and decided

that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs. The Supreme Court upheld to Court of Apeal’s decision.

 [Original text of the case reports supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

[Pagre created: 25/02/2020]


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