Invoking Norwich Pharmacal Relief Against The Less Than Innocent

• Published date: 23 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Lauren Godfrey

In this piece, Lauren Godfrey looks at Rowland & Anor v Stanford [2021] EWHC 988 (Ch).

Mini summary

Considering a Part 8 claim for Norwich Pharmacal relief, the Court decided that the jurisdiction was properly invoked despite the defendant arguing that pre-action disclosure was available against him. A defendant being a putative wrongdoer was not a necessary pre-requisite of relief but equally it did not prevent relief. Further, the Court found the Defendant's concern that the Claimants be cross-examined on their application misplaced.

Further, the Court considered the fact and scope of the defendant's right to protection against self-incrimination. The Court noting there was no general right but rather an individual's rights ideally should be considered in light of established and credible risk of incrimination in respect of specific criminal offences. Further, there was a distinction between material already in existence and evidence brought into existence by reason of the order itself. Only the latter attracted any right against self-incrimination.

The Court also reiterated that a clean hands argument required a sufficient connection with the relief sought.

What are the practical implications of this case?

Those advising on claims or applications under the Norwich Pharmacal jurisdiction will want to take note of the decision for its interplay with pre-action disclosure and for the discussion of the right against self-incrimination.

Specifically, the judgment is a welcome reminder and clarification of the respective scope of pre-action disclosure and the Norwich Pharmacal jurisdiction, suggesting a degree of overlap between the two disclosure jurisdictions.

There is authority for the proposition that the Court may be reluctant to make an order under the Norwich Pharmacal jurisdiction, where there is a putative defendant to the claim who could give a putative claimant disclosure of the same material: see Mistui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511: [20].

However, simply because a defendant to a Norwich Pharmacal claim also may be a defendant to a substantive claim, does not mean that the jurisdiction is improperly invoked. While often defendants to Norwich Pharmacal claims were innocent facilitators that was not a necessary pre-condition.

In relation to protection against self-incrimination, in light of the judgment, practitioners may wish to consider whether it is sensible to include the standard proviso against self-incrimination (found...