Norwich Pharmacal Relief In Multi-jurisdictional Cases

• Published date: 12 January 2024
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: Macfarlanes
• Author: Nikolas Ireland, Madeleine Brown and Isabelle Proctor

Earlier this month, in Green v CT Group Holdings Ltd [2023] EWHC 3168 (Comm), the High Court held that Norwich Pharmacal Relief will only be granted where it is satisfied that, in addition to the widely recognised conditions, the application is made for a "proper purpose".

The facts

Linda Green (the Claimant) applied for a Norwich Pharmacal Order to obtain evidence from CT Group Holdings Ltd (the Respondent). The Claimant sought disclosure of the source of certain documents, in relation to ongoing proceedings in Jersey and Guernsey to which the Claimant was party. She argued that the Respondent was able to identify wrongdoers who had allegedly fabricated evidence intending to cause her prejudice in the Channel Island proceedings.

The test

A Norwich Pharmacal Order is a type of disclosure order which compels the respondent (a third-party) to disclose certain documents or information to the applicant. The legal principles derive from the 1974 House of Lords decision in Norwich Pharmacal Co. & Others v Customs and Excise Commissioners and the conditions to the grant of such an order have been refined over time. They were recently summarised in Collier v Bennett [2020] EWHC 1884 (QB) as follows:

1. the applicant must demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person (the Arguable Wrong Condition);
2. the respondent must be mixed up in, so as to have facilitated the wrongdoing (the Mixed Up In Condition);
3. the respondent must be able, or likely able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued (the Possession Condition); and
4. requiring disclosure from the respondent must be an appropriate and proportionate response in all the circumstances of the case bearing in mind the exceptional but flexible nature of the jurisdiction (the Overall Justice Condition).¹

In Green, the judge applied the above test from Collier, but commented that the formulation did not adequately consider the "issues that arise where the issues go beyond domestic proceedings".² In particular, he was critical that this formulation did not properly take account of the decision in R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118and the resulting line of cases.

The judge said that the Omar line of cases establishes that Norwich Pharmacal relief is not available to obtain evidence for use in foreign civil proceedings, or in...