The Growth Of Norwich Pharmacal Orders: Part I - An Evolving Litigation Tool

• Published date: 12 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: William Fry
• Author: Mr Paul Convery and Adele Hall

A Norwich Pharmacal order (NPO) is generally used to discover the identity of a wrongdoer from a third party. It is an exception to the rule that discovery can only be sought when proceedings are closed. Proceedings are instituted against the third party for the sole purpose of obtaining an order identifying the unknown wrongdoer. An NPO typically directs the third party to disclose information to the applicant about the wrongdoer's identity.

In Ireland, a party seeking an NPO must establish a very clear and unambiguous case of wrongdoing (see Megaleasing UK Ltd v Barrett (No. 2) [1993] 1 I.L.R.M. 49) and proof of wrongdoing in respect of each element of the tort complained of (O'Brien v Red Flag Consulting Limited [2015] IEHC 867).

NPO's and emerging technologies

The NPO arose out of a UK decision in Norwich Pharmacal v Customs and Excise Commissioners [[1974] AC 133. It has developed in recent times to suit our increasingly digital world. With remarkable foresight in 2002, Lord Woolf commented on the use of NPOs in Ashworth Hospital v MGN Limited [2002] UKHL29:

"New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should...