Finding the balance – Norwich Pharmacal orders

Posted on: March 20th, 2013

Norwich Pharmacal orders can be very useful in fraud cases. They allow a victim of wrongdoing to obtain information or documents from a respondent who is “mixed up” in the wrongdoing, but is unlikely to be a party to any proceedings arising from it. Norwich Pharmacal relief is most often used where the applicant requires the respondent’s help to identify the wrongdoer in order to commence a claim, or otherwise to obtain information needed to plead the case.

There have been several key cases involving Norwich Pharmacal orders in 2012 and 2013. In June last year, the High Court held that Norwich Pharmacal orders cannot be used to order the provision of evidence for foreign criminal proceedings. The Court of Appeal most recently unanimously approved that decision in March 2013,  confirming that Norwich Pharmacal orders cannot be used to circumvent the statutory regime for obtaining evidence for use in criminal proceedings abroad in the Crime (International Co-operation) Act 2003.

In November 2012, the High Court refused to grant a Norwich Pharmacal order that would have amounted to a wide-ranging process of discovery and evidence-gathering. The first defendant was a former employee of the claimant who had been accused of misusing confidential information. However, the judge held that the requested order was not a question of identifying a wrongdoer or providing straightforward information, but instead was an “onerous undertaking” and an “impractical demand for her to undertake”.

Again, in November last year, the Supreme Court clarified the approach the courts should take in deciding whether to grant Norwich Pharmacal orders taking into account data protection rights and proportionality. The Rugby Football Union (“RFU”) obtained a Norwich Pharmacal order against the operator of a ticketing website, Viagogo which required Viagogo to disclose the identities of individuals that had used the website to sell and purchase tickets to Twickenham matches at inflated prices, in breach of the terms and conditions on which the RFU had sold the tickets.

Viagogo argued that this order interfered with the individuals’ rights under Article 8 of the EU Charter of Fundamental Rights, which guarantees the protection of personal data. The appeal was dismissed by both the Court of Appeal and the Supreme Court. The Supreme Court held that Norwich Pharmacal orders are a flexible tool, and will be granted when they are a “necessary and proportionate response in all the circumstances”.