High Court Refuses Norwich Pharmacal Disclosure Order In Aid Of Foreign Proceedings

• Published date: 30 January 2024
• Law Firm: Herbert Smith Freehills
• Author: Mr Jeremy Garson and Jan O'Neill

In a significant recent decision, the High Court refused to grant a 'Norwich Pharmacal' disclosure order (NPO) on the grounds that the information was sought for the purpose of foreign proceedings, which is an impermissible use of such orders: Green v CT Group Holdings Limited [2023] EWHC 3168 (Comm).

The NPO procedure enables a victim of wrongdoing to seek disclosure from a third party who was 'mixed up' in the events (often innocently), for the purpose of obtaining information the victim needs in order to pursue legal redress.

On the basis of earlier authority, the High Court held that the NPO procedure cannot be used to obtain evidence (i) for the purpose of foreign civil proceedings (existing or contemplated) or (ii) in connection with foreign criminal investigations or proceedings. That is because the English courts' power to assist in obtaining such material is governed exclusively by the statutory regimes (civil and criminal) for international cooperation in this regard, under which foreign courts and prosecuting authorities can issue formal "letters of request" for such assistance.

The High Court observed that this jurisdictional constraint on the NPO procedure has not been widely recognised in practice, and suggested that some earlier NPO authorities must be reconsidered in light of it. It also proposed that the established test for granting an NPO be amended to take into account this restriction, by adding an express requirement that the order be sought for a proper purpose.

In any particular NPO application, the question of whether the information is being sought for the purpose of foreign proceedings (including whether a possible future foreign action can be said to be "contemplated" at that stage) will be fact-sensitive, and a judge's view may be difficult to predict. The present judgment suggests that, although in a wholly domestic context courts may sometimes be prepared to adopt a "wait and see" approach to the potential uses of the information once it is received, that approach will not be appropriate in cases where there is an international element and jurisdiction is an issue.

Related developments re cross-border third party disclosure

This decision follows several other recent cases considering when the English courts will make disclosure orders against third parties where there is a cross-border element. In the converse of the scenario in the present case, the following cases considered applications for disclosure by foreign third parties for the purpose of English proceedings:

• In Gorbachev v Guriev [2022] EWCA Civ 1270 (discussed here) the Court of Appeal granted a third party disclosure order under CPR 31.17 (rather...