In the digital age, it is very easy to find yourself caught up in a situation where you are being defamed, harrassed or defrauded by an anonymous group or individuals online. Whilst you may not be able to directly identify them yourself there may be a third party who has access to sufficient information that could lead to their unmasking. Privacy laws such as GDPR would normally prevent this information from being released but with a Norwich Pharmacal order, you may be able to obtain their identity.
- Norwich Pharmacal case law
- What criteria do you need to satisfy to obtain a Norwich Pharmacal order?
- Application procedure
- Giving notice of a Norwich Pharmacal order
- Preventing the wrongdoer from finding out about proceedings
- Court hearing
- How much does a Norwich Pharmacal order cost?
- Useful applications of a Norwich Pharmacal order
Norwich Pharmacal case law
The eponymous case was Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 where they had discovered any anonymous company was importing a chemical that was in breach of an exclusive patent that was licensed to Norwich Pharmacal. Upon discovering this they brought proceedings against Excise Commissioners (now merged with Inland Revenue to form HMRC) to force disclosure of the information which would allow them to identify the mystery importer of the chemical.
The Excise Commissioners had refused to disclose the details as they claimed they did not have the authority to do so. In a ruling by the House of Lords, it was established that innocent third parties could be compelled by the courts to disclose information that would assist the claimant under what is now known as a Norwich Pharmacal order.
“…that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.”
Lord Reid, House of Lords (1974)
What criteria do you need to satisfy to obtain a Norwich Pharmacal order?
Applications for Norwich Pharmacal orders need to be made through the high court. As the order relates to data that would normally be covered by privacy laws there is a substantial bar to reach before it will be granted so the application will need to be backed up by a good level of evidence. As such several criteria have been established in Mitsui and Co Limited v Nexen Petroleum UK Ltd [2005] 3 All ER 511 that need to be met to satisfy the court that private details should be released:
An Act of Wrongdoing
A key principle the judge will want to see evidence of is that there needs to be a good arguable case that the alleged anonymous wrongdoer has a committed an offence. A “good arguable case” is determined to be that the chance of success is more than 50% at trial. Possible causes of action include defamation, harassment, fraudulent activity or intellectual property infringements. It doesn’t need to be a crime but could be a civil matter.
A cause of action
For a Norwich Pharmacal order to be granted there needs to be a legitimate, just and proportionate cause of action for a third party to disclose private information. It needs to be shown that no other means could obtain the information legally without the order being granted. Due to this criterion needing to be met, Norwich Pharmacal orders are used in cases of anonymity. Once the order has been granted the claimant will usually (but not exclusively) use this information to bring a case against the alleged defendant.
A third party has become innocently ‘mixed up’ in the wrong doing and will have access to the information required
When seeking the order against a third party it should be shown that they have become innocently ‘mixed up’ in the wrongdoing. Also, the third party will have access to/likely have access to the required information that would allow the alleged anonymous accused party to be pursued and a Norwich Pharmacal order will enable this to be released. An example of this is somebody using a bank account to receive fraudulent funds. A Norwich Pharmacal order against the bank would allow the owner of the bank account to be identified.
In addition the the above the court holds the discretion of whether to grant the order or not by deciding whether such an order is both necessary and proportionate by looking at a variety of different factors such as:
- The strength of the claim
- The right of the victim to apply the law to seek recompense
- Deter future wrongdoing by the defendant or other parties
- Whether the third-party respondent is truly innocent of wrongdoing
- Whether the order may affect the rights or reveal the identities of innocent parties
- Whether it is proportionate for the particular requested information to be released in relation to the accused wrongdoing
- Proportion to the privacy and data protection rights of the accused
- Public interest in maintaining the confidentiality of journalist’s sources
- If the request could be onerous
The above is not a barrier to a Norwich Pharmacal order being granted but it must be shown that the accused wrongdoing requires such serious action to be taken. The court maintains the ability to be flexible and privacy laws do not provide an indestructible shield to wrongdoing if the circumstances require action.
Application procedure
Norwich Pharmacal orders can either be applied for either prior to future action or in the course of existing proceedings. For an order that is a precursor to future action, the application will usually be made in the high court but depends on where the future proceedings will be made. If made during the course of existing proceedings the third party will need to be joined as a new party for the explicit purpose of applying for a Norwich Pharmacal order.
The application will need to fill out the appropriate documentation, address the criteria by describing the issue at hand and evidence that a Norwich Pharmacal order is justified.
Giving notice of a Norwich Pharmacal order
As the third party is innocently ‘mixed up’ in the wrongdoing it is the usual procedure to make the application for a Norwich Pharmacal order ‘on notice’, i.e. they are aware that proceedings are set to occur.
It is a usual procedure that the third party may in fact request that an order is granted so that they can legally release the information. The respondent may be willing to give up the information voluntarily but privacy laws would prevent this. To circumnavigate this, they encourage the claimant to take the matter to the courts whilst not actively opposing the order.
It is possible to request the order ‘without notice’ meaning the third party will not become aware until the order has been made. A reason for doing so maybe if there is a risk the proposed defendant will be informed. It may also be that there are time constraints such as the risk of assets being dissipated. On occasions such as these then formal notice may not be possible but informal notice would be appropriate instead.
Preventing the wrongdoer from finding out about proceedings
As Norwich Pharmacal orders are often the precursor to future action, in particular an injunction, it may be deemed necessary to prevent the accused anonymous wrongdoer from being informed about the proceedings to come. This may be to prevent them dissipating assets or in the case of a defamation case, dispersing damaging statements. To do so you may wish to take one or more of the following steps:
- Anonymous proceedings – preventing the release of any identifiable names to the public
- Private hearings
- Restricting public access to the court
- Gagging orders preventing the third party respondent from informing anybody about the proceedings or order (except for their legal representatives)
Court hearing
There will be a court hearing following the submission of the application the claimant will be required to submit the evidence and a witness statement where the judge will decide whether a Norwich Pharmacal order is appropriate. Full and frank disclosure is required meaning all information, not just the information that would support the application, must be submitted. As with injunctions, cross-undertakings are required which means that should it be later be found the Norwich Pharmacal order should not have been granted, the third party can be compensated if they suffer loss (for example, having to pay damages to the accused for release of their information). The applicant will usually give the third-party respondent an indemnity from costs as the innocent party which can be claimed back if they are successful with their proceedings against the anonymous wrongdoer.
Under normal circumstances, 3 full days are required between the application and the hearing but exceptions are made in the interests of urgency on occasion. The duration can range from half an hour to half a day and if the order is unopposed it will likely fall at the lower end of the scale. Once the order is made the order will need to be served and the respondent will usually have up to 28 days to provide the required information. It should also be noted that it is a very serious breach to misuse the information gained so this data should only be used to advance a claim as described in the application.
How much does a Norwich Pharmacal order cost?
Costs for a Norwich Pharmacal order vary but include the cost of the court fee as well as solicitor’s fees. Typically this would be in the region of £5,000 + VAT however should the application be contested by the respondent then costs can increase significantly. These fees pay for the drafting of the witness statement and preparation of evidence, correspondence, the application and the court hearing.
Useful applications of a Norwich Pharmacal order
With the anonymity afforded to online activities, Norwich Pharmacal orders have become more common as individuals seek to combat the impact on themselves from anonymous wrongdoers. Many people may not realise that such an order exists so conduct abusive activities without fear of retribution but as is shown, that is not always the case. Likewise, fraudulent activities from an unknown email address or phone number can be traced using a Norwich Pharmacal order. Below are some prominent example of how an order can be applied:
- Identifying anonymous online abusers, somebody making defamatory comments or some other wrongdoing online through their IP address via their internet service provider
- Sports teams identifying ticket touts illegally selling match tickets at an inflated price
- Identifying fraudsters who trick people into sending money by phone or text message scams
- Assisting with the tracing of stolen assets through banks
- For disclosing the source of a journalist’s information
- For access to information that would assist an applicant’s case
- To assist a defendant by obtaining additional information
Do you have a claim that you think may require a Norwich Pharmacal order to combat defamation, harassment, fraud or another reason? We have offices in London and Hertfordshire and can arrange a call to provide some initial advice.
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