What happens when a potential litigant wishes to sue but cannot proceed as the identity of the wrongdoer is unknown? What if you have been defrauded, you know the identity of the fraudster but no proceedings are possible or you cannot properly plead your case without crucial information – that “missing piece of the jigsaw”? Perhaps confidential information has been leaked but you do not know who is responsible?
Reposed in the civil courts is the jurisdiction to grant what is known as the Norwich Pharmacal Order. A court may grant this discretionary remedy, in appropriate cases, to compel third parties innocently ‘mixed up’ in wrongdoing to produce documentation and information relevant to that wrongdoing, or to unmask the identity of the perpetrators.
The locus classicus of the jurisdiction to grant these unmasking orders is the 1974 U.K. House of Lords case of the same name, Norwich Pharmacal v Customs and Excise Commissioners. The facts, in brief, were that the American corporation, Norwich Pharmacal, owned the patent for a chemical compound, and with its U.K. based subsidiary/licensee, Smith Kline & French Laboratories, claimed that a large volume of counterfeit compound was being imported to the U.K. by persons unknown. Norwich and Smith Kline wished the importers to be held responsible for patent infringement. It formally asked the U.K. Customs and Excise to release the names and addresses of the importers, which request was refused on the basis that this information was confidential. The U.K. Court of Appeal agreed with the customs officials, but that decision was later reversed on appeal to the House of Lords. Although there was no claim to be made against U.K. Customs whose officials were merely exercising their statutory duty, without action on their part the infringement could not have been committed and without the identity of the importers, Norwich and Smith Kline could take no action against them. As expressed by the court, when “a person through no fault of his own gets mixed up in the tortious acts of others so as to facilitate their wrongdoing… justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.” The court found, essentially that there was a free standing duty to disclose unless there is some consideration of public policy that dictates otherwise.
As it has developed, the ‘wrongdoing’ alleged need not be a tortious act but may be a crime, breach of contract, equitable wrong or contempt of court. The flexibility of the Norwich Pharmacal jurisdiction is evident looking at the diverse cases in which it has been ordered. Apart from intellectual property infringement, examples of its utility have included as a vehicle in the unravelling of complex fraud in common law jurisdictions including Jamaica, to compel trustees to identify beneficiaries, to facilitate financial disclosure by a company not a party to the litigation in proceedings pertaining to its deceased shareholder’s estate, and to compel disclosure by Facebook when it refused to identify the unknown possible defendant who had instructed it to delete the account of the gentleman (with whom the applicant had had a long term relationship) following his death resulting in the irrecoverable deletion of all posted material.
Norwich Pharmacal Orders have oft been applied to disclosure from banks in various circumstances that can override the duties of confidentiality ordinarily applicable. In 2019, for instance, Barclays Bank PLC was compelled by a Norwich Pharmacal Order to reveal to a Lebanese company the account information for one of its customers. The company was in the midst of negotiations with its suppliers and during the email exchange of information received various invoices from the supplier and was provided the bank account details to make the transfer. The company later realized that it had been deceived into sending the money to the wrong account by an unknown fraudster using a confusingly similar but different email address to its supplier’s domain. The court was satisfied that this was no fishing expedition against the bank. While the company would not know until receipt of the information whether the same would lead it to the fraudster or to an innocent account holder whose own information had been hacked, there was no other way for the company to identify the right person against whom to bring a claim for damages.
There is no question that Norwich Pharmacal Orders can provide valuable equitable relief where there is no or limited legal recourse without unmasking through third party disclosure. Developing over years through jurisprudence, the flexibility of this now more mature albeit exceptional remedy was described in a 2018 decision of the Supreme Court (a decision upheld by the Court of Appeal in November 2020), as “dynamic and adaptable to various situations and should therefore be considered on a case by case basis with the objective of ensuring a fair trial.” Therein lies the beating heart of Norwich Pharmacal relief – vindication of legal rights in the interests of justice.
This article is intended to provide general information only and is not to be relied on in place of legal advice.
Mrs. Julianne Mais Cox is an Attorney-at-Law in the Kingston office of the law firm DunnCox, located at 48 Duke Street. You may contact her at julianne.mais@dunncox.com