Disclosure of Information: Norwich Pharmacal and Related Principles 9781526506764, 9781526506795, 9781526506788

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Disclosure of Information Norwich Pharmacal and Related Principles Second Edition

Disclosure of Information Norwich Pharmacal and Related Principles Second Edition Simon Bushell Partner, Signature [email protected]

Gary Milner-Moore Partner, Herbert Smith Freehills LLP [email protected]

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc © Bloomsbury Professional Ltd 2019 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2019. All efforts have been made to contact the publishers of other reproduced extracts and sources are acknowledged with the extracts. We welcome approaches from publishers and other copyright holders to discuss further acknowledgement or terms relating to reproduction of this material. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-52650-676-4 ePDF: 978-1-52650-678-8 ePub: 978-1-52650-677-1 Typeset by Evolution Design & Digital Ltd (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

FOREWORD

By the Rt. Hon. Professor Sir Robin Jacob

I  am one of the last survivors of Norwich Pharmacal.1 When Simon Bushell asked me to write this Foreword I was delighted to accept. And even more so when I  read what was described as the ‘near-final’ manuscript. For the book reads much, much better than most textbooks. Yes, it sets out the law – accurately and usefully – but it also tells stories, of the seminal case itself and then of its progeny. These include Norwich’s immediate children such as Anton Piller, Bankers Trust and the predictable conflict between a journalist’s need to protect her sources and an injured party’s need for information to sue coming to a head in British Steel. It tells also of Norwich’s grandchildren, great grandchildren and what may now be fairly called its diaspora. A modern reader gets the feel of how it all developed, case by case – a classic example of the common law in action. I do not think it could have happened in a civil law system. Indeed, it did not as far as infringement of Intellectual Property rights are concerned. It was 30 years after Norwich, that the EU Enforcement Directive2 compelled Member States to introduce a right of information from persons which might fairly fall within Lord Reid’s concept of ‘mixed up’ in the infringement even though they are not infringers themselves.3 Another reason I was delighted is that it gave me an opportunity to re-publish part of what I wrote in another book.4 Just before the Judicial House of Lords morphed into the Supreme Court,5 Louis Blom-Cooper had the idea of a book to recognise the history, achievements (and failures) of the Judicial Committee of the House of Lords.6 He lured, seduced, cajoled and pressed into service over 40 authors (quite a few from abroad) to produce what is a remarkable work for any lawyer to read. I was one of Louis’ victims – given the task of writing a chapter

1

Of the counsel in the case there remain only Peter Gibson (junior for the Crown and Peter Prescott, second junior for Norwich). I was first junior. 2 Directive 2004/48/Econ the Enforcement of Intellectual Property Rights. 3 Art 8. 4 I did not have to ask permission – I never assign or grant exclusive rights under my copyright. It always leads to bureaucracy. 5 An American Judge once said to me ‘you are throwing away one of the great trade marks in the law – everyone else has a Supreme Court.’ 6 The Judicial House of Lords 1876-2009, Louis Blom-Cooper QC, Brice Dickson and Gavin Drewry, August 2009, OUP. I think it is a great read.

v



based on the House of Lords and Intellectual Property. Part of that chapter was about Norwich Pharmacal. I reproduce it here, slightly tidied up. ‘It is difficult, if not impossible, to remember or even picture procedural law before the era of the Norwich, Anton Piller and Mareva orders. They all emerged in the early ‘70s. The seminal case was Norwich, changing as it did the whole ethos of what remedies a court could grant. It started in 1967 when I was Anthony Walton’s pupil. The drug company Smith Kline & French had an exclusive licence under Norwich Pharmacal’s patent for a chicken food additive called furazolidone. SK&F noticed that statistics of imported products published in the “special chemical register” by the Customs included furazolidone. Clearly it infringed the patent7. The amounts and dates of import but not the names of the importers were published. SK&F asked Customs for the names. Customs said it could not and would not supply them. It could not because the names were confidential to the supplier of the information and moreover by implication Statute8 precluded disclosure. It would not because if it did supply the names that would imperil the integrity of the special chemical register in that dishonest people would lie about what they were importing. SK&F went to Antony Walton. He suggested the thing to do was to sue Customs claiming it was infringing because the infringing product passed through its control. This was seen as a long shot but the idea was to bring some pressure on Customs, possibly to get the names on discovery of documents and somehow make use of them, or even to lose but make some political capital out of that with a view to getting legislation to deal with this manifest injustice. The idea of an action for discovery as such was so alien that it never crossed the mind of anyone. An action for infringement was started in 1969. It was not pursued with great enthusiasm given its prospects. But one day, looking through 4 Chancery Division reports for something wholly unconnected with this case, Walton’s eye accidentally, and serendipitously, fell upon p.97, the 1876 case of Orr v Diaper. There it was, or seemed to be, in order for discovery of the name of a trade mark infringer. The order was against a shipper of goods bearing a spurious trade mark to find out who the exporter was. The Norwich writ was amended to include a claim for discovery. Customs listed documents which would disclose the names, but claimed Crown privilege.9 So a summons for inspection was issued. It came before Graham J. He, the practical business-minded judge that he was, held that discovery should be given10, against the arguments of Sydney Templeman QC and Jean-Pierre Warner for the Crown. The Court of Appeal reversed Graham J with a resounding thump – there was no such thing as an action for discovery against anyone who was not himself a wrongdoer and in any event the information both could not as a matter of law and should not on the grounds of Crown privilege be disclosed. Lord Denning MR’s judgment was particularly conservative – even accepting the argument that the Crown should protect wrongdoers in the interests of keeping the statistics accurate11. Leave to appeal was refused.

7

Save on the improbable hypothesis that it was a SK&F product bought in the UK, exported and reimported. 8 In the shape of s 3 of the Finance Act 1967. 9 As public interest immunity was called in those days. 10 At an earlier state we had gone to Graham for an early hearing date. When Walton told him that the case was about getting the name of the infringer from Customs, he said ‘why won’t they tell you?’ Walton said he knew from then on that Graham would find for us. 11 The dishonest infringing importers might lie if they knew their identify might be exposed.

vi



So it was on an application for leave that the case first reached the House of Lords. As I  recall it the oral argument lasted for most of the day. It was in the Moses room rather than one of the two usual Committee rooms. Oddly what interested the three Lords12 who heard it most was the point about whether statute precluded disclosure. Leave was given. Thus the stage was set for a right Royal battle. By then Sydney Templeman had gone to the bench and Jean-Pierre Warner to be the UK’s first AdvocateGeneral in the ECJ. The new Crown team were Peter Oliver QC leading, as first junior, Peter Gibson. By then the amount of legal research which had been done was truly massive. We had trawled the English Reports, early American and Commonwealth authorities and the leading textbooks of the 19th century. All the authorities had been photocopied and put in 5 large, bound, volumes.13 Walton decided to start with the statutory prohibition/Crown privilege points – these were seen as the soft target because the idea of the Crown protecting wrongdoers was obviously unattractive. The plan failed at the first moment. Before he had got further than “May it please your Lordships I  appear with …” Lord Reid interrupted: “Mr Walton, there are two points in this case. Their Lordships would like you to start with the question of whether there is an action for discovery.” Clearly there was some scepticism about this. Walton embarked on the exercise taking them through the detailed stuff we had found. There was much intervention. Some progress seemed to be made but not, it seemed, enough when Peter Oliver got up on, I  think, the third day. At some point thereafter, either the Thursday or the following Monday, Lord Kilbrandon did not appear – he was sick. Lord Reid said the court would press on with four. So Peter Oliver finished his response on the discovery appeal and Walton had about a day and a bit to reply. By now they were really interested. At about midday on the Wednesday of the second week the argument on this point was complete. We were turned out of Committee room Number 1 while the four debated what to do. Lunch came and went. We all walked up and down that corridor, seemingly for ever. At about quarter to four the door was flung open and the usher called “Counsel.” In we went. Reid said: “Mr Walton and Mr Oliver. Their Lordships are evenly divided. Lord Kilbrandon will be better by Monday. We would like you to re-argue the question. The rest of us will endeavour not to interrupt.” After that it was all downhill. After the action for discovery the other points were easy. In the result it was a 5:0 decision. I, and all others in the case, long wondered which two changed their minds. None of us ever found out. A possible mind-changer was Lord Cross. For a few days after the argument was over counsel got a letter from him14. He had discovered a case of 1887 in the Supreme Judicial Court of Massachusetts, Post v Toledo15, which he thought supported the existence of the action. If I were asked to speculate now as to the other mind-changer I would say Lord Morris. He had played a lesser part in the debate, and I think, by nature, was rather more conservative than the others.

12 Lord Cross was one, I cannot remember the other two. 13 Not just ring binders. Photocopying a few, unreported, cases had been done once or twice before but this was an exercise on a different scale. It was, I believe, the first time reported authorities had ever been photocopied. Before that courts and counsel all worked with actual volumes of reports. 14 I do not know many times such a post-hearing letter had happened before. 15 (1887) North Eastern Reporter 540. The Judgment was by Associate Justice Holmes, the future Justice Holmes of the US Supreme Court. Actually, Peter Prescott’s researches had already found this case but we did not cite it because we thought it distinguishable on the grounds that the defendant was in effect a wrongdoer. We were not so purist as to say that it did not help after Lord Cross had found it and though it was in our favour!

vii



Norwich set in train a whole series of cases about the limits of the rule itself (journalists’ sources, malicious informers and so on); it changed the very notion of using litigation to obtain information16. It changed lawyers’ attitudes to creative procedural litigation. If this unthinkable thing could be done, why not others? So came Anton Piller17, Mareva18, orders against 3rd party banks for production of documents19, passport seizure orders where an alleged debtor was likely to abscond20 and others. I do not think any of these things would have happened as quickly or even at all but for the sea-change brought about by Norwich.”’

I add a few embellishments. More for fun than anything else: 1. Lord Kilbrandon described the argument as ‘rather acrimonious’. I suppose it must have seemed so to him. The reality was quite, quite different. Each side’s counsel had huge respect for the other. I made firm friends with Peter Oliver. When he was appointed to the bench I wrote to him suggesting that he could create a ‘fourth animal’ – a reference to Sydney Templeman’s Court of Appeal argument that there were ‘only two animals – infringer and non-infringer’. Norwich had created a third ‘one who was mixed up’. Peter wrote back saying he would create a whole zoo of animals! 2. Anthony Walton invented a name for a particular type of point. It is where one side makes a point which the other side understands and answers but the court neither understands the point nor the answer. He called it a ‘Sir Rum Bum Peto’ point, named after a case cited in argument21. The RumBum Peto case in Norwich went like this: Peter Oliver submitted that the warehouseman and carrier cases we had cited (such as Orr v Diaper) could be distinguished because the defendant was a volunteer whereas Customs had a statutory duty to take control of goods. Our answer was to say that warehousemen in particular were also under a statutory duty to take goods

16 A quick early example was D v NSPCC [1978] AC 171, where a mother, wrongly accused of child abuse, sought an order that the identity of the informer be disclosed by the NSPCC. The HL refused the order on the ground of public interest – the doctors, teachers, relatives and neighbours who are the regular informants to the NSPCC of cases of suspected child abuse would all dry up if their names could come out. Curiously a recent author, Ruth Costigan, has asserted that ‘there is no appellate authority on whether a public interest defence can defeat a Norwich Pharmacal claim’, ‘Protecting Journalists’ Sources’ Public Law, Autumn 2007, 464 at 475. She cites a Court of Appeal case where the point was assumed, Mersey NHS Trust v Ackroyd [2003] EMLR 36. Is D so old that everyone has forgotten it? And is Norwich itself no longer read? For in Norwich the question of public interest was a live defence, only failing on the merits. 17 [1976] Ch 55. I am quite sure this would never have happened but for Norwich. Following Norwich, record companies who were facing the new phenomenon of piracy quickly sought disclosure orders against retailers as to their sources. It usually turned out that by the time action against these was taken they said they had nothing left and had only sold a few. The need to ‘get in there’ provoked legal research by Hugh Laddie in the 19th century cases for a justification for such an order. About 8 were granted in favour of record companies until the Chancery Judges decided that the order needed the sanction of the Court of Appeal. The 9th case, where it was refused, Anton Piller happened not to be a record piracy case. It was one of breach of confidence. When taken to appeal, Lord Denning MR was much in favour of the order (the contrast with his attitude to Norwich is marked). And so it was that the name of this obscure German company entered the language of the law. 18 [1975] Lloyds Rep. 509. 19 Bankers Trust v Shapira [1980] 1 WLR 1274. 20 Bayer v Winter (No.1) [1986] FSR 323, CA. 21 Uziellli, In re, Poonsardin v Peto (1863) 33 L.J. Cj, 371

viii



4.

5.

into their warehouse. We found some private Acts of Parliament setting up warehouse companies. They were required to take cargo offloaded from ships – otherwise of course they might hold shipowners to ransom. The point never made the judgment – Rum Bum Peto points, by their nature, never do. The statutory prohibition point was, at least in retrospect, particularly bad. It ran like this: Section 3 of the Finance Act 1967 permitted disclosure of information to third parties which had been given to the revenue for some purpose or other by a taxpayer. So, it was argued, but for the provision, it could not be disclosed. A schoolchild should be able to see the two flaws in that: firstly that the Act did not amount to a prohibition at all, and secondly, even if Parliament assumed that statutory permission was needed, the courts do not take mere assumptions of law by Parliament as laying down the law. How we spent nearly all day on this point at the leave applications I really can’t remember. I  looked up the name Norwich Pharmacal. The Norwich is Norwich New Jersey. The company still exists (now called Norwich Pharma Inc.). I  could not find out how long it was called ‘Norwich Pharmacal’ – the word ‘Pharmacal’ is an old-word, a synonym of ‘pharmaceutical’. The first recorded use is by a physician, Tobias Whitaker, in 1638 (‘Blood of Grape as Our pharmacall compositions’). The OED says the word is obsolete. Funny how it has hung on to become part of a lawyer’s language.

Faculty of Laws, University College London, January 2019

ix

ACKNOWLEDGEMENTS

The authors wish to extend their thanks to their many colleagues who have spent time either in commenting upon drafts or in assisting in research. For this second edition, the authors would like to thank Laura Askew for her help throughout the updating process, as well as James Leadill, Leo Meredith and Nick Bernard, amongst others. Those who helped in relation to the first edition include Joseph Wass, Arish Bharucha, Stephanie Balsys, Darren Kidd and Ardil Salem as well as James Norris-Jones who provided helpful comments on much of the (relatively) finished product. Any mistakes or omissions, of course, remain the responsibility of the authors.

xi

CONTENTS

Forewordv Acknowledgementsxi Table of UK and European Legislation xix Table of Cases xxiii 1 Introduction

1

2 Overview 2.1 The principles 2.2 Availability of relief 2.3 Threshold requirements – wrongdoing and involvement 2.4 Necessity 2.5 Discretion and common objections 2.6 Procedural issues 2.7 Modern applications 2.8 International dimensions 2.9 Other topics

3 3 4 5 6 6 7 7 8 8

3

Background to the Norwich Pharmacal case 9 3.1 General practice of discovery 9 3.2 Early ancestors of Norwich Pharmacal11 3.3 Persons having an interest 13 3.4 Subsequent authorities 15 3.5 Orr v Diaper15 3.6 Upmann v Elkan17 3.7 Later developments 18

4 The Norwich Pharmacal case 4.1 The facts 4.2 First instance 4.3 Court of Appeal 4.4 House of Lords 4.5 Subsequent developments

21 21 22 22 23 27

5 Full information to assist the victim of fraud: Bankers Trust29 5.1 Early developments following Norwich Pharmacal29 5.2 The Mareva line of authorities 31 5.3 Immediate predecessors of Bankers Trust32 5.4 Bankers Trust v Shapira34 5.5 The scope of Bankers Trust orders 36 5.6 Tracing claims and personal claims 39 xiii

Contents

5.6.1 5.6.2

Freezing injunctions Beyond proprietary claims

40 41

6 Extending Norwich Pharmacal43 6.1 Post-judgment enforcement 44 6.2 Missing piece of the jigsaw 45 6.2.1 P v T46 6.2.2 Axa Equity & Law Life Assurance v National Westminster Bank plc46 6.2.3 AOOT Kalmneft v Denton Wilde Sapte48 6.2.4 Carlton v VCI and VDC49 6.2.5 Mitsui v Nexen Petroleum50 6.2.6 Binyan Mohamed51 6.2.7 United Company Rusal v HSBC Bank and others51 6.2.8 Ramilos v Buyanovsky52 6.2.9 Overseas authority 52 6.2.10 Discussion 53 6.3 The flexible remedy 55 6.3.1 Ashworth Hospital Authority v MGN55 6.3.2 The torture cases – Binyan Mohamed58 6.3.3 Subsequent Cases 63 6.3.4 Justice and Security Act 2013 63 6.4 Broader Impact 64 6.5 Conclusions 64 7 Wrongdoing 7.1 Whose wrongdoing? 7.2 Categories of wrong 7.3 Post-judgment orders 7.4 The meaning of ‘wrongdoing’ 7.5 Intermediaries, wrongdoers and innocents 7.6 Possible wrongdoing – standard of proof 7.6.1 Overseas authorities 7.6.2 Conclusions 7.7 Wrongdoing and discretion 8 Involvement 8.1 Origins of the requirement 8.2 Subsequent formulations 8.3 Agents and employees 8.4 Illustrations 8.5 Standard of proof 8.6 Respondent wrongdoer

65 65 67 69 71 78 83 87 91 91 95 95 96 100 102 106 108

9 Necessity 111 9.1 The necessity test 111 9.1.1 The House of Lords in Ashworth115 9.1.2 Developments since Ashworth117 xiv

Contents

9.2

9.1.3 Privy Council – Equatorial Guinea122 9.1.4 Equatorial Guinea and English law 124 9.1.5 Subsequent cases 125 9.1.6 Overseas authorities 129 9.1.7 The applicable test – discussion 131 9.1.8 Practical application 132 Legitimate objectives 132 9.2.1 Categories of legitimate objectives 132 9.2.2 Timing as part of the legitimate objective 135 9.2.3 Broader considerations 135

10

Discretion and scope of relief 10.1 The discretionary test 10.1.1 European law and proportionality 10.1.2 Special test for actions against the respondent? 10.1.3 The applicant’s interests 10.2 Scope of relief 10.2.1 Documents or information 10.2.2 Information 10.2.3 Documents 10.2.4 Other orders 10.2.5 Cross examination

137 137 138 142 148 149 149 150 151 156 157

11

Common objections 11.1 Threshold objections – wrongdoing and Involvement 11.2 Objections to the exercise of discretion 11.3 Confidentiality, privacy and commercial sensitivity 11.3.1 The interests 11.3.2 Confidentiality clubs 11.3.3 Independent solicitors 11.4 Public interest immunity 11.5 Whistleblowers 11.6 Revealing innocents 11.7 Wrongdoing 11.8 Limitations under other regimes 11.9 Alternative avenues 11.9.1 The relevant authorities 11.9.2 Legislative provisions 11.9.3 International considerations 11.9.4 Will or might be forthcoming? 11.10 Internal investigations 11.11 Inconvenience and cost 11.13 Inability to assist 11.13 Self-incrimination and the right to silence 11.14 Privilege and lawyers 11.14.1 Privilege 11.14.2 The special position of lawyers 11.15 Undertakings

159 159 159 160 160 162 163 163 164 165 165 166 167 167 170 170 172 172 174 175 176 178 178 179 181 xv

Contents

11.16 Other factors

183

12

Procedural considerations 12.1 Procedure 12.2 Draft orders 12.3 Interlocutory relief 12.4 Secrecy 12.5 Costs 12.6 Absent interests 12.6.1 Full and frank disclosure? 12.6.2 Other solutions 12.6.3 Public interest 12.7 Constraints upon use of information and documents 12.8 Finality

185 185 187 188 189 190 192 192 194 196 197 200

13

Modern applications 13.1 Internet and social media 13.2 Journalistic sources 13.2.1 Common law 13.2.2 The Contempt of Court Act 1981 13.2.3 The permitted exceptions 13.3 Defamation 13.4 Commercial secrets 13.5 Fraud 13.6 Post-judgment enforcement 13.7 Public authorities

201 201 202 203 203 205 210 211 211 212 214

14

Extra-territorial scope 14.1 Substantive dispute overseas 14.2 Interim relief and expediency 14.3 Jurisdiction over the respondent 14.3.1 No European Dimension 14.3.2 The European dimension 14.4 Subject matter jurisdiction and discretion 14.4.1 The Mackinnon Principle 14.4.2 Redress other than proceedings

215 215 218 221 221 224 228 228 230

15

Related Jurisdictions 15.1 Pre-action disclosure 15.2 Access to court documents 15.3 Third Party Disclosure 15.4 Persons Unknown 15.5 Witness Summons 15.6 CHC Software and related cases 15.7 Rendering other orders effective 15.8 Solicitors as officers of the court 15.9 Section 236 of the Insolvency Act 1986 15.10 Proprietary orders

231 231 234 235 236 237 239 242 244 244 245

xvi

Contents

15.11 15.12 15.13 15.14

Joinder Bankers’ Books Evidence Act 1879 Unexplained Wealth Order (UWO) Data Protection Act 2018 – Subject Access Requests

246 246 246 249

16

International arbitration 16.1 Background – limits on disclosure in support of arbitration 16.2 Norwich Pharmacal relief in an arbitration 16.3 Norwich Pharmacal relief in support of an arbitration

255 255 257 259

17

Where next for Norwich Pharmacal?261 17.1 The internet and social media 261 17.2 Extra-territorial reach 262 17.3 Policing Norwich Pharmacal relief 263 17.4 Collective redress 264 17.5 International fraud 264 17.6 Conclusion 266

APPENDIX – SAMPLE ORDERS A. Simple Norwich Pharmacal Order in respect of an Identity B. Bankers Trust Order

267 267 268

Index

271

xvii

TABLES OF UK AND EUROPEAN LEGISLATION

References are to page number

Statutes Arbitration Act 1996......................... 255 s 2(3)............................................. 255  6(1)............................................. 258  43.......................................238, 255, 256  44.......................................255, 256, 257 (1)........................................... 258 (2)(e)....................................... 258 (3)........................................... 258  82................................................ 258 Bankers Books Evidence Act 1879... 29, 228, 246 s 7.................................................. 246 Children Act 1989 s 98................................................ 176 Civil Evidence Act 1968 s 14(1)........................................... 176 Civil Jurisdiction and Judgments Act 1982 s 25...................... 213, 217, 218, 219, 220 (1)........................................... 219 (a)..................................... 219, 221 (2), (7)..................................... 219 Civil Jurisdiction and Judgments Ordinance 1993 (Gibraltar?) s 17(b)........................................... 220 Civil Procedure Act 1997.................. 43 Common Law Procedure Act 1854... 10 s 51................................................ 10 Communications Act 2003................ 202 s 123A–124N................................ 202 Companies Act 1985 s 434.............................................. 176 Companies Act 2006 s 260.............................................. 74  994..............................................  73, 75 Consumers, Estate Agents and Redress Act 2007...................... 196 Contempt of Court Act 1981............. 203 s 10................... 65, 66, 85, 113, 116, 123, 127, 135, 139, 148, 173, 176, 202, 203, 204, 205, 206, 211, 246

Copyright, Designs and Patents Act 1988 s 97A............................................. 182 County Courts Act 1984 s 52................................................ 231 Crime (International Cooperation) Act 2003.................................... 216 Criminal Evidence (Attendance of Witnesses) Act 1965 s 2.................................................. 68 Criminal Finances Act 2017............ 231, 247 s B1............................................... 247 Criminal Justice Act 1987 s 2.................................................. 68, 176 Data Protection Act 1998............ 6, 142, 157, 161, 231, 249 s 7........................................ 170, 250, 252 (9)...........................................  250, 251 Sch 7 para 10....................................... 252 Data Protection Act 2018......... 231, 249, 252 s 167(2)......................................... 250 Sch 2 para 19, 22................................. 249 Digital Economy Act 2010................ 202 Drug Trafficking (Offences) Act 1986 s 8.................................................. 213 Evidence (Proceedings in Other Jurisdictions) Act 1975............. 52, 216, 217, 218, 257 Financial Services Act 1986 s 150.............................................. 46 Financial Services and Markets Act 2000 s 150.............................................. 46  165, 165A................................... 68 Fraud Act 2006 s 13.............................................. 176, 177 (2)........................................... 176 Freedom of Information Act 2000... 170, 214 Human Rights Act 1998...................139, 208 s 3(1)............................................. 208  6(1)............................................. 208 xix

Tables of UK and European Legislation Human Rights Act 1998 –contd  12(4)........................................... 139  13(1)........................................... 139 Insolvency Act 1986........................  166, 245 s 165(2)......................................... 75  236............................... 75, 177, 244, 235  238, 239...................................... 75  366.............................................. 245  423.............................................. 70  433.............................................. 176 Judicature Act 1873...........................  16, 17 Judicature Act 1875...........................  16, 17 Justice and Security Act 2013 s 17................................................ 63, 129 Land Registration Act 2002.............. 166 Newspapers, Printers and Reading Rooms Repeal Act 1869 Sch 2.............................................. 15 Official Secrets Act 1911.................. 245 Police and Criminal Evidence Act 1984 s 8.................................................. 68  9.................................................. 68 Sch 1.............................................. 68 Proceeds of Crime Act 2002 Pt 2 (ss 6–91)................................ 247 s 41................................................ 248 Pt 4 (ss 156–239).......................... 247 s 190.............................................. 248 Pt 5 (ss 240–316).......................... 247 Pt 8 Ch 2 (ss 343–379).................. 247 s 362A(6)...................................... 247  362B........................................... 247  362C(2)....................................... 247  362D(3), (4)................................ 248 (5), (8)................................ 247  362E............................................ 248  362J(4)(b)................................... 248  362K(1)...................................... 248 (6)(a), (b)........................... 248 (11).................................... 248 Public Interest Disclosure Act 1998.. 164 Road Traffic Act 1988 s 151.............................................. 237 Senior Courts Act 1981..................... 44, 187 s 33(2)........................................... 256  34......................................... 43, 223, 235 (2).......................................... 166, 236  37................................31, 102, 157, 187, 223, 242, 243, 244 (1)........................................... 44, 243  72................................................ 176 (3)........................................... 176 Supreme Court Act 1981 see Senior Courts Act 1981 Terrorism Act 2000 Sch 6 para 5......................................... 176 xx

Theft Act 1968 s 31................................................ 176 Australia Freedom of Information Act 1982.... 170 United States California Code of Civil Procedure... 224 Military Commissions Act 2006....... 121 Portugal Companies Securities Act 1999 s 187.............................................. 76 Statutory Instruments Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997/302..................... 219 Civil Procedure Rules 1998, SI 1998/3132....................... 5, 8, 37, 58, 71, 186, 187, 197, 225, 231, 239 r 3.4(2)........................................... 54 (b)...................................... 250 5.4C............................................. 235 (1), (2)................................. 234 PD 6B...........................219, 221, 222, 223 r 7.3............................................... 222 Pt 8....................................... 185, 187, 250 r 8.1(2)(a)...................................... 185 Pt 16.............................................. 54, 212 r 16.4(1)(e).................................... 54, 212 PD16............................................. 212 Pt 18.............................................. 80, 150 Pt 23..................................... 185, 186, 187 Pt 24.............................................. 233 24.2............................................. 54 r 25.1(1)(f)..................................... 31 (g)..................... 40, 219, 226, 244 25.1(1)(j)..................................... 43 PD 25A.......................................... 182 r 31.6............................................. 240 31.12........................................... 169 31.16...........................2, 5, 87, 103, 118, 119, 149, 167, 168, 169, 172, 231, 232, 246, 256 (3)(a), (b)......................... 232, 233 (c).........................231, 232, 233 (d)................................ 232, 233 31.17............................  5, 50, 71, 75, 99, 105, 155, 166, 167, 168, 199, 214, 223, 235, 236, 238, 239, 255, 256, 258 (3)....................................... 236 (a).................................. 236 31.18(5)....................................... 86

Tables of UK and European Legislation Civil

Procedure Rules 1998, SI 1998/3132 –contd r 31.22.................................. 198, 199, 235 (1)(b).................................. 199 (2), (3)................................ 200 32.7............................................. 157 34.2........................................... 236, 237 34.3–34.7.................................... 237 46.1........................................... 234, 236 48.3............................................. 191 Pt 53.............................................. 210 PD 53............................................  46, 54 Pt 71.............................................. 243 Pt 81.............................................. 187 r 81.9(1)......................................... 187 Land Registration Rules 2003, SI 2003/1417............................. 166 Rules of Court 1875.......................... 16 Order 37 r 7............................................. 18 Rules of the Supreme Court 1965, SI 1965/1776 Order 24 r 13........................................... 123, 124 Order 26 r 2............................................. 102 Order 29 r 2............................................. 43 Order 48........................................ 243 Order 70........................................ 217 EU Legislation Regulations Reg (EC) 44/2001............................224, 225 art 4.1............................................ 225 5.1............................................ 225

Reg (EC) 44/2001 –contd art 7(2)........................................... 226 26............................................. 214 35....................................219, 226, 227 Reg (EU) 1215/2012......................... 224 Reg (EU) 2016/679 art 77, 79....................................... 250

Directives Dir 95/46/EC..................................... 142 Dir 2004/48/EC art 11............................................. 140

Treaties and Conventions Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels, 27 September 1968)...225, 226 art 24............................................. 226 Convention on Succession of States in respect of Treaties (Vienna, 23 August 1978)........................ 226 European Convention on Human Rights (Rome, 4  November 1950)................................138, 139, 208 art 7............................................... 140  8..............................139, 140, 157, 161  10....................... 57, 81, 117, 138, 140, 165, 207, 208, 210 (2)......................................... 210  11............................................. 140  17, 47....................................... 140 Protocol 1 art 1........................................... 139

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TABLE OF CASES

References are to page number

A A v C [1981] 1 QB 956............................................................................................... 34, 40, 45 A v C [2000] NI 1...........................................................................................................77 A Co v B Co [2002] 3 HKLRD 111...............................................................................41 AB Bank Ltd v Abu Dhabi Commercial Bank PJSC [2016] EWHC 2082 (Comm)......191, 220, 221 A-G v Clough [1963] 1 QB 773.....................................................................................203 A-G v Mulholland; A-G v Foster [1963] 2 QB 477........................................................203 AJ Bekhor & Co Ltd v Bilton [1981] QB 923........................................ 40, 157, 242, 243, 244 Aamer v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 3316 (Admin)............................58, 61, 62, 69, 97, 125, 127, 131, 134, 153, 163, 170, 186, 216 Abela v Baadarani; Abela v Fakih [2017] EWHC 269 (Ch)...........................................71 Able Force Freight v East Sun Estate Management[2010] 2 HKLD 1155.....................191 Alberta (Treasury Branches) v Leahy [2000] ABQB 575 (Can ll)......................... 87, 130, 198 Alfred Crompton Amusement Machines v C & E Comrs (No 2) [1974] AC 405..........82, 161 American Cynamid Co v Ethicon Ltd [1975] AC 396...................... 89, 92, 137, 144, 145, 189 Anderson v Halifax [2000] NI 1.....................................................................................77 Andrew v News Group Newspapers Ltd [2011] EWHC 734 (Ch).................................236 Angell v Angell (1822) 1 Sm & St 83..............................................................12, 13, 18, 25, 27 Anonimous (1682) 1 Vern 117........................................................................................10 Anton Piller KG v Manufacturing Processes Ltd [1975] Ch 55........................30, 31, 143, 197 Aoot Kalmneft v Denton Wilde [2002] 1 Lloyd’s Rep 417............................................ 38, 48 Applause Store Productions v Raphael [2008] EWHC 1781 (QB)................................201 Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911.........................................213 Arab Satellite Communication Organisation v Al Faqih [2008] EWHC 2568 (QB)...... 79, 81, 82, 159, 162, 165 Arnott, ex p Chief Official Receiver, Re (1888) 60 LTNS 109.......................................180 Arsenal FC v Elite Sports Distribution Ltd (No 1) [2002] EWHC 3057 (Ch)............... 76, 84, 117, 168 Asbestos Insurance Coverage Cases, Re; Sedgwich Group plc v Johns-Manville Fibreboard Coron [1985] 1 WLR 331.....................................................................238 Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488...............................257 Ashworth Hospital Authority v MGN [2002] UKHL 29..........................4, 5, 6, 44, 57, 58, 60, 64, 66, 67, 68, 69, 72, 73, 76, 78, 79, 81, 85, 92, 96, 97, 98, 100, 112, 115, 116, 117, 118, 120, 121, 122, 123, 124, 125, 127, 128, 131, 133, 135, 137, 138, 139, 148, 161, 172, 174, 175, 186, 188, 192, 196, 198, 206, 208, 209 Assima Maritime Ltd v Pakistan Shipping Corpn (The Tasman Spirit) [2004] EWHC 3005 (Comm).................................................................................167, 256 xxiii

Table of Cases Astellas Pharma v Stop Huntington Animal Cruelty [2011] EWCA Civ 752................71 AstraZeneca Ltd v Albermarle International COrpn [2010]  EWHC  1028 (Comm), [2010] 1 CLC 715...................................................................................................86 Atari Inc v Philips Electronics & Associated Industries Ltd [1988] FSR 416................162 Attorney General v Barker [2000] IFLR 759..................................................................251 Attwood (John) v Small et al (1838) 6 Cl & F 232........................................................10 Australia & New Zealand Banking Group v National Westminster Bank plc (unreported, 16 February 2002)..............................................................................200 Autopoietic Telemetric v Loughlin 2012 ONSC 2305...................................................183 Axa China Region Insurance v Pacific Century Insurance [2001] HKEC 931...............90, 114 Axa Equity & Law Life Assurance v National Westminster Bank [1998] 5 WLUK 111...........................................................................................................5 B BMG Canada v John Doe 2005 FCA 193 (Can Ll)........................................................88 BNP Paribas v Deloitte & Touche [2003] EWHC 2874 (Comm)................................ 167, 256 BNP Paribas v TH Global [2009] EWHC 37 (Ch)....................... 4, 74, 86, 149, 174, 177, 231 Bacon v Automatic, Wikimedia & Denver Post [2011] EWHC 1072 (QB)..........187, 223, 224 Bankers Trust Co v Shapira [1980] 1 WLR 1274........................................4, 34, 67, 185, 186, 187, 188, 190, 192, 197, 198, 199, 200, 211, 212, 215, 219, 221, 226, 227, 230, 237, 246, 257, 258 Bank Mellat v Nikpour [1982] 4 WLUK 121, [1985] FSR 87.......................................193 Barham v Lord Huntingfield [1913] 2 KB 193...............................................................240 Barlow Clowes International v Eurotrust International Ltd [2006] 1 WLR 1476..........125 Barnes v Addy (1873-74) LR 9 Ch App 244.................................................................. 11, 15 Beggars Banquet Records Ltd v Carlton Television Ltd [1993] 5  WLUK  4, [1993] EMLR 349...................................................................................................146 Benhurst Finance v Colliac [2018] 6 WLUK 641..........................................................257 Bermuda International Securities Ltd v KPMG [2001] EWCA Civ 269.......................234 Black v Sumitomo Corpn [2001] EWCA Civ 1819..............................................231, 232, 233 Bloomsbury Publishing v Newsgroup Newspapers [2003] EWHC 1205 (Ch)..............71 Blunt v Park Lane Hotel [1942] 2 KB 253.....................................................................176 Bols Distilleries BV (t/a Bols Royal Distilleries) v Superior Yacht Services [2006] UKPC 45, [2007] 1 WLR 12.......................................................................86 Bonalumi v Secretary of State for the Home Department [1985] 1 QB 675..................228 Bonnier Audio AB  v Perfect Communication Sweden AB (Case C-461/10) [2012] 4 WLUK 354, [2012] 2 CMLR 42........................................................................ 140, 142 Brady v PKF (UK) LLP [2011] EWHC 3178 (QB)............................... 82, 129, 151, 154, 211 Branchempire, Re [2010] EWHC 3017 (Ch).......................................................... 75, 105, 166 Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB)..............................237 British & Commonwealth plc (Joint Administrators) v Spicer & Oppenheim [1993] AC 426; revs’d [1992] Ch 342................................................................... 177, 245 British Steel Corpn v Granada Television [1981] AC 1096..................  65, 66, 67, 71, 72, 109, 112, 113, 116, 123, 124, 132, 134, 135, 142, 143, 176, 177, 188, 203, 259 Brown & Co v Watkins (1885) 16 QBD 125..................................................................17 Browne v Associated Newspapers [2007] EWCA Civ 295, [2008] QB 103..................139 Broxton v McClelland (No 1) [1995] 1 WLUK 522, [1995] EMLR 485.......................251 Bruno-Manser-Foods v Royal Bank of Canada 2018 ONSC 918..................................69 Burchard v Macfarlane [1891] 2 QB 241.......................................................................18 Burstall v Breyfus (1884) LR 26 Ch D 35......................................................................11 C C  v S  (Money Laundering: Discovery of Documents) (Practice Note) [1999] 1 WLR 1551............................................................................................................190 CBS United Kingdom v Lambert [1983] 1 Ch 37..........................................................242 xxiv

Table of Cases CBS United Kingdom Ltd v Perry [1984] 12 WLUK 201, [1985] FSR 421.................157 CFEM Facades SA v Bovis Construction Ltd [1992] 1 WLUK 788, [1992] IL Pr 51...226 CHC Software Care v Hopkins & Wood [1992] 19 WLUK 85, [1993] FSR 241........146, 153, 239 CMOC v Persons Unknown [2017] EWHC 3599 (Comm).................................. 222, 226, 237 Camelot v Centaur Communications [1999] QB 124................................................... 207, 208 Cameron v Hussain [2017] EWCA Civ 366...................................................................237 Campaign Against Arms Trade v BAE Systems plc [2007] EWHC 330 (QB)...........4, 97, 98, 103, 106, 117, 119, 120, 131, 133, 134, 169, 173 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] AC 457............139, 161 Canada Trust v Stolzenberg (No 2) [1998] 1 WLR 547.................................................86 Cardale v Watkins (1820) 5 Madd 18.............................................................................11 Carlton Film Distributors Ltd v VCI plc [2003] EWHC 616 (Ch).................. 5, 49, 50, 52, 53, 54, 67, 84, 85, 89, 90, 91, 117, 146, 148, 152, 168, 169 Cartier AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658...................... 64, 147, 262 Cartwright v Green (1803) 8 Ves Jun 405.......................................................................68 Carver v Pinto Leite (1871-72) LR 7 Ch App 90.............................................. 16, 66, 143, 144 Castle New Homes Ltd, Re [1979] 1 WLR 1075...........................................................245 Cathcart, ex p Campbell, Re (1869-70) LR 5 Ch App 703.............................................180 Cembrit Blunn Ltd v Apex Roofing Services LLP [2007] EWHC 111 (Ch)....... 161, 174, 211 Chang Wa Shan v Chan Chun Chuen [2009] HKEC 1684.............................................191 Cherney v Deripaska [2008] EWHC 1530 (Comm).......................................................86 China Transpacific Steamship Co v Commercial Union Assurance Co (1881-82) LR 8 QBD 142........................................................................................................17 Chodiev v Stein [2016] EWHC 1210 (Comm)..............................................................198, 200 Cinepoly Records v Hong Kong Broadband Network [2006] 1 HKLRD 255......... 90, 91, 191 Clift v Clarke [2011] EWHC 1164 (QB)......................................................4, 86, 93, 201, 202 Clini Supplies v Park [2012] EWHC 3209 (Ch).............................................................58 Cloverbay (Joint Administrator) v Bank of Credit & Credit International [1991] Ch 90.....................................................................................................................177, 245 Coca Cola Co v British Telecommunications plc [1998] 12  WLUK  312, [1999] FSR 518.........................................................................67, 85, 100, 104, 150, 172 Coca Cola Co v Gilbey (Leave to Appeal) [1995] 9 WLUK 9, [1996] FSR 23.............183 Cocal Cola Co v Ketteridge [2003] EWHC 2488 (Ch)..................................................155 Coca Cola Co v Mabe [2001] 11 LUK 319, [2002] FSR 47..........................................85 College of Opticians of British Columbia v Coastal Contacts 2010 BCSC 104 (S Ct, British Columbia)....................................................................................................166 Colonial Government v Tatham (1902) 23 Natal LR 153............................................... 27, 84 Community Living Fort Frances v TBayTel [2011] ONSC 2734 (Can)........................71, 104 Compare Kneale v Barclays Bank [2010] EWHC 1900 (Comm)..................................87 Conway v Rimmer [1968] AC 910.................................................................................163 Countess of Caledon v Comr of Police for the Metropolis [2016] EWHC 2214 (QB)....98, 214 Corrs Pavey Whiting & Byrne v Collector of Customs of Victoria & Alphapharm [1987] FCA 266......................................................................................................170 Coward v Harraden [2011] EWHC 3092 (QB)..............................................................189 Credit Suisse Trust Ltd v Intesa Sanpaolo SpA [2014] EWHC 1447 (Ch)........... 70, 212, 213, 221, 229 Crest Homes v Marks [1987] AC 829....................................................................197, 198, 199 Cruz City 1 Mauritius Holdings v Unitech Ltd [2013] EWHC 1323 (Comm)..............243 D D  v National Society for the Prevention of Cruelty to Children (NSPCC) [1978] AC 171.........................................................................................................163 D (Restraint Order Non-party) (Times Law Reports, 25 January 1995)........................213 DB Deniz Nakliyati Tas v Yugopetrol [1992] 1 WLR 437.............................................246 xxv

Table of Cases Danone Asia Pte v SB Chow & Co [2009] 1 HKLRD 470............................................104 Dawson-Daner v Taylor Wessing LLP [2017] EWCA Civ 74........................................252 Dendron v University of California [2005] 1 WLR 200.................................................197 Dixon v Enoch (1871-72) LR 13 Eq 394........................................................................ 15, 16 Douglas v Hello! Ltd (No 1) [2001] QB 967, [2001] 2 WLR 992.................................139 Douihech v Findlay [1990] 1 WLR 269.........................................................................43 Dubai Bank v Galadari (No 6) (The Times, 14 October 1992)......................................155 Duffy v Sunday Newspapers [2017] NIQB 71...............................................................204 Dummer v Chippenham Corpn (1807) 14 Ves Jr 245............................................. 10, 101, 102 E ECU Group plc v HSBC Bank plc [2017] EWHC 3011 (Comm)..................................234 ED & F Man Liquid Products v Patel [2003] EWCA Civ 472.......................................233 EDO Corpn v Ultra Electronics Ltd [2009] EWHC 682 (Ch)........................................256 EMI Ltd v Sarwar & Haidar [1976] 10 WLUK 15, [1977] FSR 146............................. 30, 31 Elder v Carter, ex p Slide & Spur Gold Mining Co (1890) LR 25 QBD 194.................18 Eli Lilly & Co Ltd v Neolab; Eli Lilly & Co Ltd v Neopharma Ltd [2008] EWHC 415 (Ch).......................................................................................................................146, 182 Elliot v Lloyds TSB Bank plc [2012] 2 Info LR 69........................................................252 Equatorial Mining v Mapletree Holdings [2008] HKEC 1832................................... 52, 53, 91 Evergreen International Storage v HSBC [2008] 5 HKLRD 49.....................................90, 106 Ezsias v Welsh Ministers [2008] EWCA Civ 874..........................................................252 F FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45............41 Fennessy v Clark (1887) 37 Ch D 184............................................................................144 Fenton v Hughes (1802) 7 Ves Jr 287......................................................................... 10, 12, 14 Fenwick v Reed (1816) 1 Mer 114.................................................................................10 Financial Times Ltd v United Kingdom (Application 821/03) [2009] 12 WLUK 451, [2010] EMLR 21.....................................................................................................209 Finch v Finch (1752) 2 Ves Sen 491...............................................................................11 Finers v Miro [1991] 1 WLR 35.....................................................................................178 Fiona Trust & Holding Corpn v Privalov [2007] UKHL 40...........................................257 First American Corpn v Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154........................177 Flood v Times Newspapers [2009] EWHC 411 (QB)....................................................236 Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320.................................................57 Frankson v Secretary of State for the Home Departmet [2003] EWCA Civ 655...........236 G G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB)..........................................189, 201 GEA Group v Flex-N-Gate Corpn 2009 ONCA 619................................................ 52, 87, 130 Gamlen Chemical v Rochem (unreported, 7 December 1979)......................................179, 190 Garden Neptune Shipping v Occidental Worldwide Investment Corpn & Concord Petroleum Corpn [1989] 1 Lloyd’s Rep 305...........................................................54, 212 Garnet Investments v BNP Paribas 2207-08 GLR 73.....................................................40 Gartside v Outram (1856) 26 LJ Ch 113........................................................................66 Gidrxslme Shipping Co Lrd v Tantomar-Transportes Maritimos Lda (The Naftilos) [1995] 1 WLR 299..................................................................................................243 Gilbert v Lewis (1862) 1 De GJ & S 38.........................................................................10 Glaxo Wellcome v Minister of National Revenue [1998] 4 FC 439....................... 87, 130, 162 Golden Eye (international) Ltd v Telefonica UK Ltd [2012] EWHC 723 (Ch).............  4, 6, 7, 81, 103, 140, 142, 156, 162, 185, 188, 193, 194, 195, 196, 201, 202, 263 Goldman Sachs International v Novo Banco SA [2018] UKSC 34...............................86 Goldsmith v Sperrings Ltd [1977] 1 WLR 478..............................................................251 Goodwin v United Kingdom (Application 17488/90) (1996) 22 EHRR 123.................57, 207, 208, 209 Gould v National Provincial Bank [1960] Ch 337..........................................................19 xxvi

Table of Cases Grant v Comr of Police of the Metropolis [2011] EWHC 2177 (Ch).............................105 Grant v Google UK Ltd [2005] EWHC 3444 (Ch).......................................................103, 201 Grapha Holding AG  v Quebecor Printing (UK) plc [1996] 3  WLUK  350, [1996] FSR 711.......................................................................................................197 Greater Beijing Region Expressways, Re (Case HCCW 399/1999)..............................76 Griffin v Archer, Moore et al (1793) 2 Anst 478.............................................................9 Grosvenor Chemicals Ltd v UPL Europe Ltd [2017] EWHC 1893 (Ch).......................199 Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536...............................57 Guinness v Flexitrade (unreported, 1 November 2001)..................................................146 Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB).......... 250, 252 H Haiti v Duvalier (Disclosure of Assets) (No 1) [1989] ECC 54............. 40, 217, 219, 221, 227 Hambrook v Smith (1852) 17 Sim 209........................................................................... 11, 15 Handmade Films (Productions) Ltd v Express Newspapers plc [1986] FSR 463..........188 Harry Freedman v Hillingdon Shirts Co Ltd [1975] 7 WLUK 79, [1975] FSR 449......143 Heath v Crealock (Disclosure of Defendant’s Address) (1872-73) LR 15 Eq 257.........180 Hegglin v Persons Unknown [2014] EWHC 2808 (QB)................................................224 Helitune Ltd v Stewart Hughes Ltd (No 2) [1994] FSR 422..........................................162 Hicks v Royal Bank of Scotland, Sir Martin Broughton [2012] EWHC 1373 (Ch)......162 Hillman’s Airways Ltd v Societe Anonyme d’Editions Aeronautiques Internationales [1934] 2 KB 356..................................................................................................... 17, 19 Hilton v D IV LLP [2015] EWHC 2 (Ch)......................................................................181 Hourani v Thomson [2017] EWHC 432 (QB).......................................................204, 206, 210 House of Spring Gardens v Waite (No 1) [1985] FSR 173.............................................157 Houseman v Ratemd’s Inc [2017] SKQB 321................................................................201 How v Best & Hase (1820) 5 Madd 19...........................................................................10 Howard v Beall (1889) 23 QBD 1..................................................................................246 Howglen Ltd (Application for Disclosure), Re [2001] 1 All ER 376.............................246 Hughes v Carratu International plc [2006] EWHC 1791 (QB)...................................... 4, 103 Hunt v Maniere (1864) 34 Beav 157.............................................................................. 26, 27 I IG Index Ltd v Cloete [2014] EWCA Civ 1128........................................................... 198, 199 Idoport v National Australia Bank [2004] NSWSC 695.................................................75, 243 In2uitive Ltd v Educare Learning Ltd (unreported, 8 October 2018).............................232 Industrial Furnaces v Reaves [1970] 1 WLUK 138, [1970] RPC 605............................151 Inquiry under the Company Securities (Insider Dealing) Act 1985 (No  1), Re [1988] AC 660.........................................................................................................206 Initial Services v Putterill [1968] 1 QB 396...................................................................66 Interbrew SA v Financial Times [2002] EWCA Civ 274.....................20, 67, 69, 76, 103, 116, 118, 138, 208, 209, 210, 211 Intercase UK Ltd v Time Computers Ltd [2003] EWHC 2988 (Ch)...........................  146, 242 International Credit & Investment Co (Overseas) v Adham (unreported, 22 January 1997)............................................................................................................. 179, 180, 244 Irving v Thompson (1839) 9 Sim 17......................................................... 10, 12, 13, 14, 15, 26 Isofoton v Toronto Dominion Bank (2007) 85 OR (3d) 780..........................................89, 183 Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd [2017] EWCA Civ 121.......................253 J JSC BTA Bank v Ablyazov (unreported, 28 October 2013) or [2012] EWCA 1411.....70, 156, 163, 181, 191, 242 JSC BTA Bank v Fidelity Corporate Services Ltd (Case 2010/035)............................ 104, 119 JSC BTA v Solodchenko [2012] EWHC 1891 (Ch)...............................75, 158, 180, 243, 244 JSC Mezhdunarodniy Promyshlenniy Bank v Pucgachv [2015] EWCA Civ 139.........41, 242, 244 JSC VTB Bank v Skurikhin [2012] EWHC 3116 (Comm)............................................243 xxvii

Table of Cases Jade Engineering (Coventry) Ltd v Antiference Window Systems Ltd [1996] FSR 461.................................................................................84, 146, 147, 148, 161, 181, 216, 225, 240, 241, 242 John v Express Newspapers [2000] 1 WLR 1931................................115, 116, 118, 173, 208 John Reid Enterprises Ltd v Pell [1998] 2 WLUK 64, [1999] EMLR 675....................204 Johnston & Frank Johnston’s Restaurants Ltd, Re (1980) 33 Nfld & PEIR 341............87 K Kaefer Aislamientos SA de CV  v AMS  Drilling Mexico SA and Others [2019] EWCA Civ 10.........................................................................................................86 Keith-Smith v Williams [2006] EWHC 860 (QB)..........................................................201 Kenney v Loewen (1999) 28 CPC (4th) 179 (SC, British Columbia).............................. 87, 88 Kensington International v Congo [2006] EWHC 1848 (Comm)................. 70, 102, 107, 154, 157, 177, 186, 212 Kensington International v ICS Secretaries [2007] 3 HKLRD 297................................104 Kerner v WX [2015] EWHC 1247 (QB)...................................................................... 214, 236 Kerr & Chapman v Rew & Kruger (1840) 5 My & C 154............................. 10, 13, 14, 15, 26 Khanna v Lovell White Durrant [1995] 1 WLR 121......................................................238 Koo Golden East Mongolia v Bank of Nova Scotia [2007] EWCA Civ 1443............... 41, 96, 103, 107, 183 Kuwait Airways Corpn v Iraq Airways [2010] EWCA Civ 741.....................................224 Kyriakou v Christie Manson & Woods [2017] EWHC 487 (QB)..................................29 L Lagenes v It’s At (UK) Ltd [1991] 2 WLUK 337, [1991] FSR 492...............................84, 242 Le Texier v The Margravine of Anspach (1808) 15 Ves Jr 159......................................10 Levi Strauss & Co v Barclays Trading Corpn [1992] 5 WLUK 263, [1993] FSR 179..197 Lister & Co v Stubbs (1890) 45 Ch D 1.........................................................................32 Lockton Companies International v Persons Unknown [2009] EWHC 3423 (QB).... 201, 221, 222, 224 London & County Securities v Caplan (unreported, 26 May 1978)........................... 32, 33, 94 Lonrho plc v Al-Fayed (No 2) [1992] 1 WLR 1.............................................................84, 113 Loose v Williamson [1978] 1 WLR 639.........................................................................30, 144 L’Oreal SA v eBay International AG (Case C-324/09) [2012] EMLR 6........................141 Louis Feraud (London) Ltd v Unico Corpn Ltd [1995] 19  WLUK  75, [1996] CLC 122.............................................................................................. 67, 73, 84, 173, 188 Lyell v Kennedy (No 1) (1882-83) LR 8 App Cas 217...................................................17 Lyle-Samuel v Odhams Ltd [1920] 1 KB 135................................................................203 M Macdoel Investments v Federal Republic of Brazil [2007] JCA 69.........................89, 90, 107 Mackinnon v Donaldson, Lufkin & Jenrette Securities Corpn [1986] Ch 482......... 33, 37, 39, 44, 228, 229, 230, 262 Maclaine Watson v International Tin Council (No 2) [1989] Ch 286.................... 40, 187, 223, 242, 243 Mahmoud, Re 2011 ONSC 625......................................................................................183 Manufacturer’s Life Insurance Co of Canada v Harvest Hero International..................217 Marc Rich v Krasner [1999] EWCA Civ 581....................................... 37, 38, 39, 94, 152, 179 Mareva Compania Naviera v International Bulk Carriers [1975] 2 Lloyd’s Rep 509................................................................... 31, 32, 34, 40, 44, 113, 157, 217, 219 Mark v Beyfus (1890) 25 QBD 494...............................................................................163 Mars UK Ltd v Waitrose Ltd [2004] EWHC 2264.........................................................233 Marshall v Sladen (1849) 7 Hare 428.............................................................................11 Masri v Consolidated Contractors International (No 4) [2009] UKHL 43.....................225 Mayor & Commonality & Citizens of London v Levy (1803) 8 Ves Jr 398...................13 Medcalf v Weatherill; Medcalf v Mardell (Wasted Costs Order) [2002]  UKHL  27, [2003] 1 AC 120......................................................................................................54, 212 xxviii

Table of Cases Media CAT Ltd v Adams [2011] EWPCC 6................................. 103, 193, 194, 195, 198, 202 Mediterranea Raffineria Siciliana Petroli v Mabanath (unreported, 1 December 1978). 33, 34 Mercantile Group (Europe) AG v Aiyela [1994] QB 366...................... 44, 45, 57, 69, 70, 100, 107, 133, 150, 188, 212 Mersey Care NHS Trust v Ackroyd (No 1) [2003] EWCA Civ 663........85, 86, 135, 138, 140, 148, 186, 209 Michael O’Mara Books Ltd v Express Newspapers plc [1998] 3 WLUK 47, [1999] FSR 49............................................................................................................ 67, 148, 175 Microsoft Corpn v Plato Technology Ltd [1999] 3 WLUK 215, [1999] FSR 834.........146 Milano Assicurazioni SpA v Walbrook Insurance Co Ltd [1994] 1 WLR 977..............197 Miller Brewing Co v Mersey Docks & Harbour; Miller Brewing Co v Ruhi Enterprises Ltd [2003] EWHC 1606 (Ch).................................................................................190 Mitchell v News Group Newspapers Ltd [2014] EWHC 1885 (QB).............................236 Mitsui v Nexen Petroleum [2005] EWHC 625 (Ch)................ 4, 48, 50, 51, 52, 54, 60, 84, 85, 86, 90, 106, 107, 117, 119, 120, 121, 123, 130, 133, 138, 149, 150, 152, 167, 168, 169, 171, 172 Moet & Pickering (1878) 8 Ch D 372............................................................................190 Montague v Dudman (1751) 2 Ves Sen 396...................................................................68 Moodalay v Morton (1785) 1 Bro CC 468.........................................12, 13, 14, 15, 16, 18, 24, 25, 26, 27, 102 Morgan & Morgan Trust Corpn v Fiona Trust (HCVAP 2005/24)............................... 187, 220 Morris v Johnson 2011 ONSC 3996...............................................................................89 Morse v Buckworth (1703) 2 Vern 443....................................................................... 12, 15, 18 Morton-Norwich Products Inc v Intercen Ltd (No  2) [1980] 11  WLUK  36, [1981] FSR 337.......................................................................................................190 Motorola Credit Corpn v Uzan [2003] EWCA Civ 752.................................................243 Motorola v Uzan (No 2) [2002] EWHC 2187 (Comm)..................................................157 Murphy v Murphy [1999] 1 WLR 282................................... 39, 76, 77, 84, 92, 103, 133, 190 Murray v Clayton (1872-73) LR 15 Eq 115...................................................................15 Murillo, The (1873) 28 LT 374....................................................................................... 15, 25 N NAB v Serco Ltd [2014] EWHC 1225 (QB)..................................................................235 NML Capital v Chapman Freeborn Holdings Ltd [2013] EWCA Civ 589.................... 70, 99 National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] UKPC 16..............189 National Justice Co Naviera SA  v Prudential Assurance Co (The Ikarian Reefer) (No 2) [2000] 1 WLR 603.......................................................................................225 Newman v Godfrey (1788) 2 Bro CC 332......................................................................9 New Media Holding Co LLC v Capita Fiduciary Group [2010] JRC 117............130, 171, 191 Niedersachsen, The [1983] 2 Lloyd’s Rep 600...............................................................83 Nikitin v Richards Butler LLP [2007] EWHC 173 (QB)..........4, 119, 120, 129, 167, 168, 169 Noble v Garland (1816) 4 Ves Jun 742...........................................................................11 Nolan Family Partnership v Walsh [2011] EWHC 535 (Comm)....................................43 Noordeen v Hill & Health Research Authority [2012] EWHC 2847 (QB).................. 164, 165 North Shore Ventures v Plate [2011] EWHC 178 (Ch)..................................................71 Norwich Pharmacal v C & E Comrs [1974] AC 133...........................................1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 15, 16, 17, 19, 21, 27, 29, 30, 31, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 55, 56, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 75, 76, 77, 79, 80, 82, 83, 84, 86, 87, 90, 91, 92, 93, 94, 95, 97, 98, 99, 100, 102, 103, 104, 105, 107, 109, 111, 112, 113, 114, 115, 117, 118, 119, 120, 121, 122, 123, 124, 126, 128, 129, 130, 131, 132, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 151, 152, 153, 154, 155, 156, 157, 160, 161, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 182, 183, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 197, 199, 200, 202, 203, 206, 210, 211, 212, 213, 214, 215, 216, 218, 219, 220, 221, 224, 225, 227, 230, 231, 233, 236, 237, 239, 240, 242, 243, 245, 246, 255, 257, 258, 259, 261, 262, 263, 264, 265, 266, 267 xxix

Table of Cases O O (Restrain Order: Disclosure of Assets), Re [1991] 2 QB 520.....................................242 OCLI Optical Coatings Ltd v Spectron Optical Coatings Ltd; OCLI Optical Coatings Ltd v Fox [1879[ 2 WLUK 278, [1980] FSR 227..................................................31 Olsen v Facebook Inc [2016] NSSC 155........................................................................201 Omar (Mohamed) v Omar (Chiiko Aikawa) [1995] 1 WLR 1428....................42, 84, 197, 200 Ong v Ping [2015] EWHC 3258 (Ch).............................................................................29 Ontario Ltd v Stewart & The Globe & Mail 2012 ONSC 1991.....................................93 Oriental Press Group v Immediahk.net [2012] 2 HKLR 1004.......................................93 O’Rourke v Darbishire [1920] AC 581.........................................................................179, 190 Orr v Diaper (1876) 4 vCh D 92.................................................... 9, 11, 15, 16, 18, 19, 22, 23, 24, 25, 26, 27, 84, 109, 143 P P v T Ltd [1997] 1 WLR 1309.........................................43, 46, 47, 50, 52, 56, 81, 84, 85, 86, 87, 90, 91, 113, 164, 210 PJS v News Group Newspapers Ltd [2016] 2 WLR 1253..............................................209 Panayioutou v Sony Music Entertainment (UK) Ltd [1994] Ch 142.............................37 Parkinson v Hawthorne [2008] EWHC 3499 (Ch).......................................................105, 166 Parry-Jones v Law Society [1969] 1 Ch 1......................................................................161 Patel v Unite [2012] EWHC 92 (QB)...............................7, 151, 156, 175, 185, 187, 201, 263 Phillips v News Group Newspapers [2012] UKSC 28...................................................176 Plummer v May (1750) 1 Ves Sen 426........................................................................... 9, 14 Polydor Ltd v Brown [2005] EWHC 3191 (Ch).............................................................201 Post v Toledo, Cincinnati & St Louis Railroad Co (1887) 11 NE Rep 540.................... 25, 26 Premier Profiles Ltd v Tioxide Europe Ltd [2002] 9 WLUK 220, [2003] FSR 20........162 President of the State of Equatorial Guinea v Royal Bank of Scotland [2006] UKPC 7....................................................6, 117, 121, 122, 124, 125, 126, 127, 128, 129, 130, 131, 137, 138 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU (Case C-275/06) [2008] 2 CMLR 17................................................................................140 Prudential Assurance v Fountain Page [1991] 1 WLR 756............................................197 Q Queen of Portugal v Glyn (1840) 7 Cl & F 466..................... 10, 13, 14, 15, 16, 24, 26, 27, 56 R R v Chief Constable of West Midlands Police, ex p Wiley [1995] 1 AC 274.................163 R v Dadson (Peter Ernest) [1983] 77 Cr App R 91.........................................................246 R v Director of the Serious Fraud Office, ex p Smith [1993] AC 1............................. 176, 178 R v Grossman (Joseph Henry) (1981) 73 Cr App R 302................................................228 R v H, P, S & T [2004] EWCA Crim 3325.....................................................................164 R v Horseferry Road Magistrate’s Court, ex p Bennett (No 1) [1994] 1 AC 42.............62 R v James (Leslie) [2006] EWCA Crim 14, [2006] QB 588..........................................124 R  v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486.................................................................................................................193 R v Manchester Crown Court, ex p Rogers [1999] 1 WLR 832.....................................181 R v Minister of Agriculture, Fisheries & Food, ex p Federation Europeene de la Sante Animale (FEDESA) (Case C-331/88) [1990] ECR I-4023....................................141 R v Mullen (Nicholas Robert) [2000] QB 520...............................................................62 RAC v Allsopp (unreported)...........................................................................................157 R  (on the application of Binyan Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2048 (Admin)...................... 5, 44, 51, 55, 58, 59, 60, 61, 62, 63, 64, 69, 92, 97, 100, 106, 107, 115, 117, 120, 121, 125, 127, 128, 131, 133, 134, 135, 142, 151, 153, 163, 170, 175, 176, 186, 216, 217, 261 R (on the application of British Sky Broadcasting Ltd) v Chelmsford Crown Court [2012] EWHC 1295 (Admin).................................................................................68 xxx

Table of Cases R (on the application of British Telecommunications) v Secretary of State for Culture, Olympics, Media & Sport [2012] EWCA 232........................................................202 R  (on the application of Miller Gardner Solicitors v Minshull Street Crown Court [2002] EWHC 3077 (QB).......................................................................................181 R  (on the application of Njoroge & Mbuthia) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 681 (Admin).............................................62 R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA 118....................................... 5, 6, 62, 91, 106, 128, 131, 132, 153, 170, 172, 186, 216, 217, 218, 259, 260 R (on the application of Omar, Njoroge & Mbuthia) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin).................. 62, 97, 98, 100, 127, 131, 170, 216, 217 R (on the application of R & C Comrs) v W [2008] EWHC 2780 (Admin).................179, 213 RCA Corpn v Reddington’s Rare Records [1974] 1 WLR 1445........29, 30, 84, 114, 115, 153 RFU v Viagogo Ltd [2011] EWCA Civ 1585, [2012] UKSC 55.............4, 5, 6, 103, 106, 126, 131, 132, 133, 142, 151, 157, 174, 188, 201 Ramilos Trading v Byanovsky [2016] EWHC 3175 (Comm)..............4, 44, 45, 52, 63, 83, 86, 106, 128, 155, 216, 217, 218, 220 Ramsden v Brearley (1874-75) LR 10 QB 147..............................................................17 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380.......................197 Rawlinson & Hunter Trustees SA  v Serious Fraud Office [2015]  EWHC  266 (Comm)..................................................................................................................198, 199 Red Bull GmbH v Mean Fiddler [2004] EWHC 735 (Ch).............................................146 Ricci v Chow [1987] 1 WLR 1658................................................................. 19, 101, 102, 106 Rice v Connolly [1966] 2 QB 414..................................................................................68 Riddick v Thames Board Mills [1977] QB 881..............................................................197 Rio Tinto Zinc Ltd v Westinghouse Electric Co [1978] AC 547....................................176 Robb v Green [1895] 2 QB 315......................................................................................151 Roberts v Jump Knitwear Ltd [1981] FSR 527.....................................................197, 241, 242 Rose v Lynx Express [2004] EWCA Civ 447..............................................................233, 234 Roussel Uclaf v Imperial Chemical Industries plc (No 2) [1990] FSR 25.....................162 Rusal v HSBC [2011] EWHC 404 (QB)........................... 4, 39, 51, 69, 74, 86, 103, 106, 107, 127, 134, 135, 137, 152, 154, 171, 172, 179, 187, 216, 228, 229 Russell v Stubbs Ltd [1913] 2 KB 200...........................................................................240 S S (a child) (identification: restrictions on publication), Re [2005] 1 AC 593................139, 142 SES Contracting Ltd v UK Coal plc [2007] EWCA Civ 791.........................................234 SRJ v Persons Unknown [2014] EWHC 2293 (QB)......................................................181 St Paul Dairy Industries NV v Unibel Exser BVBA (Case C-104/03) [2005] IL Pr 31.226 Sabados v Facebook Ireland (unreported, 2018)............................................................201 Samuel Tak Lee v Yan Yan & Co [2010] HKEC 1535....................................................91 Santander UK plc v National Westminster Bank plc [2014] EWHC 2626 (Ch)............ 67, 99, 155, 185, 192, 199 Santander UK plc v Royal Bank of Scotland plc [2015] EWHC 2560 (Ch)............ 67, 99, 155 Sarayiah v Williams (unreported, 12 October 2017)......................................................46 Saunders v Punch (t/a Liberty Publishing) [1998] 1 WLR 986......................................116 Sayers v Smithkline Beecham (Disclosure of Data) [2004] EWHC 1098 (QB)............43 Schmidt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 2 AC 709.............................76 Science Research Council v Nasse [1980] AC 1028......................................................236 Scomadi Ltd v RA Engineerings Co Ltd [2017] EWHC 3342 (IPEC)..........................242 Secilpar v Fiduciary Trust [2003-04] Gib LR 463.......................................... 76, 104, 217, 220 Secretary of Justice v Apple Daily [2000] 2 HKLRD 704.............................................69, 178 Secretary of State for Defence v Guardian Newspapers [1985] AC 339....... 69, 203, 204, 205, 206, 245, 246 xxxi

Table of Cases Seed International v Tracey 2003-04 GLR 98................................................................40 Sega Enterprises Ltd v Alca Electronics [1982] 5 WLUK 201......................................145 Senior v Houldsworth, ex p Independent [1976] QB 23.................................................105 Shah v HSBC Private Bank (UK) Ltd [2011] EWHC 1713 (QB)..................................164 Sharab v Prince Al-Waleed Bin Tala Bin Abdal-Aziz-Al-Saud [2009] EWCA 353......86 Sheffield Wednesday FC v Neil Hargreaves [2007] EWHC 2375 (QB)..........93, 185, 201, 202 Shepherd Homes Ltd v Sandham (No 1) [1971] Ch 340................................................189 Shlaimoun v Mining Technologies International Inc [2011] EWHC 3278 (QB)........ 198, 216, 216 Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (in administration) [2011] EWCA Civ 347...........................................................................................41, 124 Singularis Holdings Ltd v PricewaterhouseCoopers [2014] UKPC 36........................ 217, 218 Smith v ADVFN plc [2010] EWHC 3255 (QB)..................................................... 93, 201, 202 Smith v Day (No 2) (1879) 21 Ch D 421........................................................................182 Smith v Secretary of State for Energy & Climate Change [2013] EWCA Civ 1585.....87, 232 Smith Kline v Global Pharmaceuticals [1986] 13 RPC 394................... 84, 144, 146, 148, 161 Smith Kline Beecham v Apotex Europe [2006] EWCA Civ 658...................................182 Societe Romanaise de la Chaussure SA v British Shoe Corpn Ltd [1990] 3 WLUK 137, [1991] FSR 1........................................................... 47, 114, 115, 145, 150, 153, 216, 225 South Cambridgeshire DC v Persons Unknown [2004] EWCA Civ 1280.....................71 South Staffordshire Tramways Co v Ebbsmith [1895] 2 QB 669...................................246 South Tyneside Borough Council v Wickes Building Supplies Ltd [2004] EWHC 2428 (Comm)...................................................................................................................238 Steward (Dr) v East India Co (1700) 2 Vern 380............................................................9 Straka v Humber River Regional Authority(2000) 51 OR (3d) 1................................... 52, 88 Studdy v Sanders [1832] 2 D & R 347...........................................................................181 Sunday Times v United Kingdom (A/30) [1979] 4  WLUK  163, (1979-80) 2 EHRR 245...................................................................................................117, 139, 209 Symonds v City Bank (1885) 79 LT Jo 175, (1886) 34 WR 364....................................19 Swain v Hillman [2001] 1 All ER 91..............................................................................233 Sybron Corpn v Barclays Bank [1985] Ch 299.............................................................197, 198 T TD, Re [1994] 12 WLUK 128, [1995] COD 337...........................................................213 TSJ  Engineering Consulting v Al-Rushaid Petroleum Investment Co (HCVAP 2010/13)................................................................................................................ 187, 220 Tajik Aluminium Plant v Hydro Aluminium AS [2005] EWCA Civ 1218............167, 238, 256 Tchenguiz v Director of the Serious Fraud Office [2014] EWHC 1315 (Comm)........ 199, 200 Tchenguiz (Robert) v Grant Thornton UK LLP [2017] EWHC 310 (Comm)............. 198, 200 Tetley v Easton (1856) 18 CB 643..................................................................................15 Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182...........................236 Totalise plc v Motley Fool Ltd [2001] 2 WLUK 502, [2001] EMLR 29.......................93, 133, 190, 191, 194, 196, 201, 204 Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch)...................................................................................................185 Twentieth Century Fox Film Corpn v British Telecommunications plc [2011] EWHC 2714 (Ch)...................................................................................................182 Twentieth Century Fox Film Corpn v Tryare Ltd [1991] FSR 58..................................197 U Unilever plc v Chefaro Proprietaries Ltd (Discovery) [1993] 3  WLUK  188, [1994] FSR 135......................................................................................................222, 246 United Co Rusal plc v HSBC Bank plc [2011] EWHC 404 (QB).................................. 51, 69 Upmann v Elkan (1871-72) LR Ch App 130................................................... 9, 17, 18, 22, 23, 24, 25, 26, 95, 100, 109, 152 xxxii

Table of Cases V Various Claimants v MGN [2018] EWHC 708 (Ch)......................................................206 Various Claimants v News Group Newspapers Ltd [2013] EWHC 2119 (Ch).............. 43, 98, 155, 214 W Wadsworth v Granada International Media Ltd [2011] 6  WLUK  139, [2011] EWPCC 20..................................................................................................73 Wakefield v Duke of Buccleugh (1865) 12 LT 628........................................................92, 182 Walsham v Stainton (1863) 1 Hem & M 322.................................................................10 Warman v Wilkins-Fournier 2010 ONSC 2126 (SC, Ontario).......................................89 Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354....................................162 Weise v Wardle (1874-75) LR 19 Eq 171.......................................................................11 Wellcome Foundation v A-G [1992] HKLY 567................................................ 89, 90, 91, 175 Westcott v Westcott [2008] EWCA Civ 818...................................................................163 Whitworth v Davies (1813) 1 V & B 545.......................................................................10 Wilko Retail Ltd v Buyology Ltd [2014] EWHC 2221 (IPEC).....................................147 Williams v Williams; Williams v Barclays Bank plc [1988] QB 161.............................246 Wilson v Church (1878) LR 9 Ch D 552........................................................................10, 101 Wobben v Siemens [2014] EWHC 3173........................................................................147 Wych v Meal (1734) 3 P Wms 310..................................................................... 10, 12, 14, 102 X X v Twitter Inc [2017] NSWSC 1300 (SC, Australia)....................................................201 X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1......................... 103, 143, 206, 208 Y Yukong Line v Rendsburg (Mareva Proceedings: Cross Examination) (unreported, 17 October 1996)....................................................................................................157 Z Z Ltd v A-Z & AA-LL [1982] QB 558...........................................................................182 Zeina-Zade v Mills (unreported, 27 July 2012).......................................................... 4, 74, 166 Zockoll Group Ltd v Mercury Communications Ltd (No  1) [1997] 8 WLUK  198, [1998] FSR 354.......................................................................................................189

xxxiii

1

Introduction

The ability to obtain access to information and evidence in support of a litigant’s case is one of the most fundamental aspects of dispute resolution. Documents and information which derive from a third party can carry a special status because they are from an independent source and so may carry potentially greater probative value. The third party may be the only practicable source. There are, of course, established methods by which a litigant can obtain evidence from a third party. A third party may be called as a witness and, within limits, may be required to produce documents. However, this all assumes that there are proceedings on foot and therefore that the claimant had the means to commence such proceedings. But suppose these elements are missing. A claimant may have no way of identifying the perpetrator of the wrong or, even if he knows the identity of the suspect, a vital piece of information may be missing, such that he cannot properly plead his case. What can such a party do to protect himself? Alternatively, suppose that a company believes that it is the victim of a fraud and has strong suspicions that its agent has been receiving bribes over a consistent period. The agent may recently have resigned and set up home in the Caribbean displaying signs of wealth which are well beyond his known means. Again, what can such a company do to investigate and to seek redress? The Norwich Pharmacal jurisdiction, derived from the landmark decision of the House of Lords in Norwich Pharmacal v Customs & Excise Commissioners,1 offers considerable hope for anyone facing these dilemmas. At its simplest, the jurisdiction obliges a third party who is mixed up in the wrongdoing of others to disclose to a potential claimant the identity of the person against whom the claimant may wish to bring his claim. Relief is available to provide information beyond identities, enabling a claimant to require a third party to disclose the vital ‘missing piece of the jigsaw’ that will complete the cause of action. Further, the same principles can be used by the victim of a fraud to oblige, for example, a bank to disclose beneficial ownership, signatory details and account movements to assist in both identifying the perpetrator of a suspected fraud (ie the controller of the bank account), the source of funds (ie  the potential payer of bribes), the destination of any funds paid out of the account (ie to assist in any tracing 1 [1974] AC 133, including both House of Lords and Court of Appeal judgments. For the first instance decision of Graham J see [1972] 1 Ch 566.

1

Chapter 1 Introduction

exercise and to enable steps to be taken to freeze assets) and potentially any further participants in any fraudulent scheme. Nowadays, Norwich Pharmacal relief can even assist a defendant in criminal proceedings. It can be invoked, it seems, by anyone who is genuinely seeking legal redress or seeking to fulfil a legitimate objective. On any view, the Norwich Pharmacal jurisdiction is controversial. A discussion with any civil law practitioner hearing about the concept for the first time and appreciating its ramifications is guaranteed to lead to a certain level of astonishment. On the one hand the degree of intrusion and potential inconvenience might appear unjustified. On the other hand, to require an innocent third party to provide assistance to the victim of a fraud seems entirely reasonable. It is notable that one of the most creative judicial minds of the twentieth century, Lord Denning MR, resisted the development of the Norwich Pharmacal jurisdiction when that case came before him in the Court of Appeal, before it was fully embraced by all five members of the House of Lords. The first edition of this book, in early 2013, was the first in-depth examination of the Norwich Pharmacal jurisdiction and related principles in a stand-alone text. Since that time, there have been a number of developments in the field, including as regards the level of involvement required and matters concerning cross-border situations. In addition, in recent years the courts have become increasingly willing to make pre-action disclosure orders against prospective defendants, meaning that an enhanced chapter on related principles including Civil Procedure Rule (CPR) 31.16, Subject Access Requests and unexplained wealth orders now appears. This second edition records the law as at 1 November 2018.

2

2

Overview

This chapter provides a brief overview of the subject and the contents of this book and enables the reader to grasp the key concepts at an introductory level. It begins with a summary of the tests that are now applied, before providing a brief summary of each element.

2.1  THE PRINCIPLES The principles for granting relief on Norwich Pharmacal grounds may be summarised as follows: 1 There are at least two threshold conditions (sometimes referred to as limits on jurisdiction) which must be satisfied: (a) a ‘good arguable’ case of wrongdoing (or, possibly, of the existence of a right); and (b) sufficient involvement by the respondent. 2 There is one other significant factor which has at times been regarded as a threshold condition and which is, in any event, of particular significance for discretion: necessity. This is generally linked to the objective for which the relief is sought. 3 There may, in addition, be requirements specific to particular contexts. An example is the set of statutory constraints imposed upon disclosure of journalistic sources (also phrased in terms of necessity). In particular contexts, there may also be considerations relating to fundamental rights 4 If all threshold conditions are met, the court has discretion whether or not to grant relief. In this context it will consider the range of interests involved. Factors including necessity and proportionality are often addressed in this context. The strength of the case on wrongdoing may also be of significance. 5 There are a number of procedural considerations which impact upon the application of the various criteria, including costs and issues around ensuring all interested are represented. 6 In an international context, there may be limits upon national jurisdiction and on the extra-territorial reach of any relief. 3

Chapter 2 Overview

An attempt to summarise the various ingredients can be found in Mitsui v Nexen Petroleum,1 which has often been adopted since.2 Most cases tend to focus upon one or more individual ingredients.3

2.2  AVAILABILITY OF RELIEF The origins of the jurisdiction are considered in Chapter 3. This attempts to lay out the principles as they stood immediately prior to the landmark decision in the Norwich Pharmacal case itself. This includes consideration of the longestablished ‘mere witness’ rule. This rule had generally been thought to prevent discovery being obtained from someone who could be compelled in due course to give evidence at trial, either by oral testimony or by producing documents. The landmark decision itself is considered in Chapter 4, which examines the modern-day revival of the equitable duty to assist imposed on a third party who has become ‘mixed-up’ in another’s wrong-doing. In particular, the chapter examines the varying reasons given in support allowing discovery in each of the five speeches in the House of Lords. One of the most significant applications of principles derived from Norwich Pharmacal has been in addressing the specific needs of the victim of fraud. Chapter 5 looks at Bankers Trust Co v Shapira4 which adopted Norwich Pharmacal principles in this sphere, allowing potentially broad disclosure of bank accounts and other material, principally for purposes of asset tracing. These cases are of particular interest because of the emphasis on the obligation imposed on the third party respondent (usually a bank) to provide ‘full information’ to the victim, overriding the duty of confidence that would otherwise apply. These cases, which are sometimes referred to as involving ‘lifting the latch of the banker’s door’, are of course as much of interest to banks themselves, who must at all times remain mindful of their duties of confidence and the limited circumstances in which such duties can be overridden. Over subsequent years, there have been further developments in the Norwich Pharmacal jurisdiction, as described fully in Chapter 6. First, it was extended to post-judgment enforcement, then to the so-called ‘missing piece of the jigsaw’, before being transformed into a flexible remedy. As Lord Woolf CJ remarked in the leading case of Ashworth Hospital Authority v MGN:5 ‘New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised before. The limits 1 [2005] EWHC 625 (Ch). A decision of Lightman J. As described in the text (Chapter 9), the approach to necessity in the case is not authoritative. 2 For example: Campaign Against Arms Trade v BAE Systems plc [2007] EWHC 330 (QB); Nikitin v Richards Butler [2007] EWHC 173 (QB); Hughes v Carratu International [2006] EWHC 1791 (QB) (at paragraph 19); BNP Paribas v TH Global [2009] EWHC 37 (Ch); Clift v Clarke [2011] EWHC 1164 (QB); Zeinal-Zade v Mills (27 July 2012 (Ch) unreported) and Ramilos v. Buyanovsky [2016] EWHC 3175 (Comm). 3 Of all the relevant cases, Rusal v HSBC [2011] EWHC 404 (QB), RFU v Viagogo [2011] EWCA Civ 1585; [2012] UKSC 55 and Golden Eye v Telefonica [2012] EWHC 723 (Ch), all referred to below, are the most comprehensive. Nonetheless, as will appear in the following Chapters, there is uncertainty surrounding some of the propositions they contain. 4 [1980] 1WLR 1274. 5 [2002] UKHL 29.

4

Threshold requirements – wrongdoing and involvement

which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy.’

This flexibility was endorsed by the Supreme Court in the case of Rugby Football Union v Consolidated Information Systems (formerly Viagogo) (In Liquidation).6 The breadth of the jurisdiction has been affirmed in two later cases, most notably the Mohamed decision. Those cases dealt with detainees held at Guantanamo Bay who sought and obtained broad discovery from the Foreign Secretary to enable submissions to be made to relevant authorities in the US. They appear to confirm that former limits, such as the old ‘mere witness’ rule, no longer constrain the availability of relief and, in appropriate cases, that the principles are sufficiently flexible to allow for extensive relief to be obtained. In the context of foreign proceedings (addressed in Chapter 14), the Court of Appeal in Omar7 qualified the breadth of Mohamed in light of a point not addressed there. This does not appear to impact upon the more general principles as exemplified by that case. The application of Norwich Pharmacal principles to the so-called ‘missing piece’ situation is one of the most exciting, yet challenging, developments in the evolution of the jurisdiction and thus it merits a more detailed introduction to the more complete treatment in Chapter 6. This aspect may be thought to jar most with the established procedures provided under the Civil Procedure Rules, which include defined powers of pre-action disclosure (CPR 31.16) and third party disclosure (CPR  31.17). The first shift towards allowing relief for the missing piece of the jigsaw came in Axa Equity & Law Life Assurance v National Westminster Bank,8 just before the CPR. The claimants were seeking information to determine whether to sue a firm of auditors, but ultimately failed because they already had sufficient material to plead a case and the respondents could therefore be witnesses in due course. Lord Justice Morritt ushered in a new phase in the evolution of Norwich Pharmacal principles when he expressed the view that a claimant seeking a vital piece of information from a third party would not infringe the ‘mere witness’ rule. This has been developed since Ashworth in cases such as Carlton Film Distributors v VCI and VDC.9

2.3 THRESHOLD REQUIREMENTS – WRONGDOING AND INVOLVEMENT Two requirements remain as thresholds that must be passed before Norwich Pharmacal relief can be granted. There must be a link to wrongdoing, dealt with in Chapter 7. The respondent must also have been involved (or have been sufficiently ‘mixed up’) in the wrongdoing, dealt with in Chapter 8. These

6 [2012] UKSC 55, judgment of 21 November 2012. 7 R (on the application of Omar and others) v Secretary of State for Foreign and Commonwealth Affairs [2013]  EWCA  118. The Divisional Court had reached a similar conclusion, albeit on the basis of slightly different reasoning; [2012] EWHC 1737 (Admin). 8 [1998] CLC 1177. 9 [2003] EWHC 616 (Ch).

5

Chapter 2 Overview

chapters deal with the issue of the relevant threshold and the standard to which each of wrongdoing and involvement must be established. There are, in particular, a number of issues surrounding the role of wrongdoing as a threshold condition and whether something less than a completed cause of action will suffice. There are also issues over whether it can ever be right for relief to reveal the identity of a potentially innocent party. This is but one aspect of perhaps the most interesting structural issue, the standard of proof required for each of the two threshold conditions: wrongdoing and sufficient involvement.

2.4 NECESSITY Necessity remains a significant factor in determining whether or not to grant relief, though it is no longer regarded as a threshold. This issue is addressed in Chapter 9, along with the related issue as to the objectives that can legitimately be pursued by an application. It is possible, for example, to seek relief to discover the source of a leak of confidential information so as to discipline that source, without any intention to bring proceedings against that wrongdoer. The role of the necessity requirement or ingredient is perhaps the most uncertain aspect of the current test, not least because of a divergence between two principal lines of authority. In origin, the necessity test appears to have been closely linked to the ‘mere witness’ rule and imposed a strict benchmark. Relief needed to be necessary to enable an ultimate trial. Echoes of this remain in some cases, though it has certainly been softened. The issue that remains to be authoritatively determined concerns the availability of relief when other avenues exist. Some cases suggest a test of whether there are other ‘practicable’ sources of the information. A competing formulation, derived from the Privy Council in President of the State of Equatorial Guinea v Royal Bank of Scotland10 looks to whether there is a ‘straightforward and available’ alternative means. The Court of Appeal has concluded (though strictly obiter) that there is no practical or substantial difference between the two tests.11

2.5  DISCRETION AND COMMON OBJECTIONS Assuming that the relevant thresholds have been satisfied, there remains the question whether the court will exercise its discretion to grant relief. Chapter 10 details the relevant principles. The chapter highlights the growth in significance of proportionality, an element mentioned by Lord Woolf CJ in Ashworth but one which has risen to greater prominence in more recent cases, including the Rugby Football Union case 12 and Golden Eye v Telefonica.13 The two-pronged requirement for proportionality alongside necessity owes much to European law, as reflected in the Data Protection Act 1998. The Rugby Football Union 10 [2006] UKPC 7. 11 Omar [2013] EWCA 118. See, in particular, para 30 per Kay LJ. 12 [2012] UKSC 55, judgment of 21 November 2012; [2011] EWCA Civ 1585. 13 [2012] EWHC 723 (Ch).

6

Modern applications

case has highlighted the limited extent to which the courts will take account of the argument that the relief is not proportionate to the degree of intrusion being suffered. The chapter also covers the scope of the relief that can be granted, including cases which have allowed more complex orders and where the court has shown that it intends more closely to supervise and control either the purpose for which the information is used, or the degree of intrusion required to access the information sought. Thus, for example, it considers the range of potential orders, from a single identity through to broader forms of disclosure. More elaborate examples include the Golden Eye case where, in a consumer context, the court reviewed the draft letter before action that would be sent to alleged wrongdoers. Another example is provided by Patel v UNITE14 where the ultimate order permitted interrogation of the respondent’s computer systems by an independent expert. Chapter 11 considers common objections that are encountered in dealing with applications. This chapter draws together a number of points raised in the previous discussions, including the focus upon alternative avenues that might be available to an applicant. One of the most obvious grounds of objection is that to claim that the disclosure sought would put the respondent in breach of another pre-existing duty such as a duty of confidence owed by a bank to its customer. Resolution of such dilemmas will often require a court order so that the respondent knows which duty prevails: the duty to assist or the duty of confidence.

2.6  PROCEDURAL ISSUES A number of procedural issues are gathered together in Chapter 12, which also introduces two draft orders (included in the Appendix) and a commentary upon them. The chapter deals with the practical issue, which has received attention in cases such as Golden Eye, as to how best to ensure that all relevant interests are represented, including the absent intended defendant who may, for example, be a consumer and potentially innocent. The chapter also deals with the important question of costs.

2.7  MODERN APPLICATIONS Chapter 13 deals with modern applications of Norwich Pharmacal principles in the sense of particular sectors and contexts in which special considerations may be relevant including, for example, in dealing with the internet and with defamation, both contexts in which relief is regularly encountered. These are both contexts in which there have been examples of what might be termed abuse, which have led to the courts exercising greater control, including discussion as to supervision of the use made of any resultant information in bringing substantive proceedings. 14

[2012] EWHC 92 (QB).

7

Chapter 2 Overview

2.8  INTERNATIONAL DIMENSIONS There will inevitably be situations where relief is sought in a cross-border situation, where the order may have extra-territorial implications. This term is used to cover scenarios in which relief is sought in England where the substantive proceedings would be elsewhere, as well as cases in which the respondent or the information is outside the jurisdiction. This is addressed in Chapter 14. In addition, however, Norwich Pharmacal principles have been adopted and form part of the laws of a number of other common law jurisdictions. Relevant authorities have been cited in a variety of contexts throughout the text. Such authorities must always be treated with the caution in the context of the law of England and Wales since, to a greater or lesser extent, those other jurisdictions apply principles sharing the same roots as Norwich Pharmacal though potentially diverging in significant respects.

2.9  OTHER TOPICS A  number of related jurisdictions, including those providing for third party disclosure and pre-action disclosure under the CPR, are touched upon in this book. These are summarised in Chapter 15. The chapter also mentions, for completeness, a number of other jurisdictions which may, in appropriate cases, enable disclosure similar to that which might be obtained under Norwich Pharmacal principles. The resolution of commercial disputes is by no means exclusively the domain of the courts and the popularity of international arbitration as an alternative is beyond doubt. Such is its importance that Chapter 16 includes consideration of how the Norwich Pharmacal jurisdiction may operate where parties may be confined by a contractual commitment to arbitrate their disputes. Finally, the concluding chapter looks at what might lie ahead for the Norwich Pharmacal jurisdiction. Will it remain in its current relatively unfettered form, ebbing and flowing in the sea of judicial creativity? What themes can be identified which may help to shape its development in the future?

8

3

Background to the Norwich Pharmacal case

This chapter aims to set out the prior authorities that were ‘disinterred’1 in the Norwich Pharmacal case and which formed the basis for the critical developments in that case and subsequently. On one view, those prior authorities are of only historic interest. However, some subsequent cases have cited the earlier authorities when developing the Norwich Pharmacal jurisdiction and they may therefore retain some continuing relevance. The primary authorities relied upon by their Lordships in the Norwich Pharmacal case were Orr v Diaper2 and Upmann v Elkan,3 both decided some 100 or so years beforehand. There were issues over what those cases had actually decided, as well as the extent to which they had been superseded by what seemed to be many years of silence.

3.1  GENERAL PRACTICE OF DISCOVERY By long established practice, a nineteenth-century litigant could not obtain discovery from a ‘mere witness’. This meant that there was no possibility of obtaining written answers to interrogatories seeking information and no prospect of obtaining disclosure (in modern parlance) of documents. However, even a mere witness could be called under sanction to give oral testimony and to produce specified documents to the trial judge by subpoena duces tecum. Both of these avenues for obtaining information from a mere witness remain available today (by witness summons and witness summons to produce documents respectively). The practice preventing discovery from a mere witness was clearly established by the mid-eighteenth century.4 In Plummer v May,5 the Lord Chancellor, Lord Hardwicke, said that discovery against a mere witness would be ‘very 1 2 3 4

5

Hoffmann J in Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911. (1876) 4 Ch D 92. (1871-72) LR 7 Ch App 130. See, further, cases cited below. Also Dr Steward v East India Company (1700) 2 Vern 380; Newman v Godfrey (1788) 2 Bro CC 332; Griffin v Moore (1793) 2 Anst 478; and A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (5th edition, 1847) (‘Redesdale’) by Lord Redesdale at [188]. (1750) 1 Ves Sen 426.

9

Chapter 3  Background to the Norwich Pharmacal case

mischievous’ as such an individual would be properly examinable as a witness.6 In Fenton v Hughes,7 the practice was applied notwithstanding the advantages that discovery would have offered over the prospect of calling the witness. Later authorities,8 most notably Queen of Portugal v Glyn,9 reinforced that this was settled law, acknowledging that calling a witness could be ‘far less effectual’ than obtaining information and documents by discovery. There were exceptions to this practice. The most familiar concerned corporations. Since a corporation could not answer on oath, there was a pragmatic exception under which an officer, though strictly a mere witness, could be required to give discovery. The leading authority was Wych v Meal,10 in which answers were required from the secretary and book keeper of the East India Company in the interests of common justice.11 By the time of Fenton v Hughes, this exception was seen as ‘very singular’ and based upon practice, not to be extended. It was ultimately obviated by the new rules of procedure following the Judicature Acts.12 Of interest in view of much later developments, although not directly relied upon in that context, there was a further exception where an agent (including an attorney) had been involved or concerned in a fraud.13 At one time, an agent could be made a party for the purposes of disclosure, even though no substantive relief was sought against him. 14 This was achieved by adding a prayer that the agent should bear the costs. A  leading nineteenth-century text on pleadings referred to ‘instances in which persons not interested in the subject of the dispute may by their conduct so involve themselves in the transaction relating to it, that they may be held liable to costs’.15 This practice was described as a ‘pretence’ by the Lord Chancellor (Lord Cottenham) in 1838,16 though he was not in a position to overrule prior authority. It was later confined to instances of fraud, where, though

6

Lord Kilbrandon in Norwich Pharmacal [1974] AC 133, at 188B links the so-called mere witness rule to the former principle, abolished by the Common Law Procedure Act 1854, that had prevented someone who had an interest being called as a witness. However, as explained in Fenton v Hughes (1802) Ves Jr 287, the existence of such an interest did not prevent the witness being called by the opposing party. 7 (1802) 7 Ves Jr 287. Note the comments on the report in Irving v Thompson (1839) 9 Sim 17. 8 See Whitworth v Davis (1813) 1 V & B 545; How v Best (1820) 5 Madd 19; Kerr v Rew (1840) 5 My & C 154. 9 (1840) 7 Cl & F 466. See also Irving v Thompson, above. 10 (1734) 3 P Wms 310. See also Anonimous (1682) 1 Vern 117. 11 See also Dummer v Corporation of Chippenham (1807) 14 Ves Jr 245. 12 See Wilson v Church (1878) LR 9 Ch D 552. It had been partially superseded in any event by the Common Law Procedure Act 1854, s 51 insofar as concerned actions at law. 13 A similar exception applied to arbitrators: see Bray The Principles and Practice of Discovery (1885) (‘Bray’) p 51, described below. 14 The practice is referred to in, for example, Dummer v Corporation of Chippenham (1807) 33 ER 515 and Le Texier v The Margravine of Anspach (1808) 15 Ves Jr 159. In Gilbert v Lewis (1862) 1 De GJ & S 38 the practice is described as being for the purpose of obtaining discovery from, in that case, a solicitor. The practice is stated in very general terms (anyone privy to the fraud) in Walsham v Stainton (1863) 1 Hem & M 322. See also Bray p 49. For the purposes of document disclosure, custody by an agent may be custody by the principal and the agent may, if necessary, be joined to obtain production: Fenwick v Reed (1816) 1 Mer 114, in the case of an attorney. 15 A  Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (5th edition, 1847) (‘Redesdale’) by Lord Redesdale, with additional contributions to later editions. 16 Attwood v Small (1838) 6 Cl & F 232.

10

Early ancestors of Norwich Pharmacal

anomalous, it was limited in scope.17 By 1874, a subsequent Lord Chancellor (Lord Selbourne) recorded that the court had set its face against adding parties simply to charge them for costs where no substantive relief was sought.18 In 1885, Edward Bray (later His Honour Judge Bray) published The Principles and Practice of Discovery, intended to be ‘a complete and comprehensive work on discovery’.19 This text stated the general rule that a mere witness could not be made a party for the purposes of discovery, however essential that discovery might be.20 It then recorded that the current of recent opinion was ‘set very strongly’ against the various exceptions, including those mentioned above.21

3.2  EARLY ANCESTORS OF NORWICH PHARMACAL Bray’s text also mentioned a further exception for discovering names for the purposes of bringing an action, based upon Orr v Diaper22 and a line of earlier authorities.23 Those same cases and others, as well as the text itself, were later relied upon in the Norwich Pharmacal case. Before examining these authorities, it is necessary to draw the procedural distinction between bills for discovery and bills for relief. The relevant exception was stated to apply only in the case of bills for discovery:24 bills which sought only discovery and no substantive relief.25 Such bills were the means by which the courts of equity allowed for discovery in support of an action pending at law or in another court.26 Substantive proceedings needed to be either pending or intended.27 The costs of complying with a bill for discovery would be borne by the plaintiff.28 In the case of a bill for relief, the general principle applied; a mere witness could not be joined as a party for the purpose of discovery, subject to the principal exceptions outlined above.29 The defendant to the substantive relief could nonetheless be required to provide disclosure including as to the names of others against whom an action might be brought.30 Against this backdrop, there was a line of cases which at least appeared to allow bills for discovery against third parties (ie those against whom no relief was

17 Marshall v Sladden (1849) 7 Hare 428. On this basis the practice was not extended to a bankrupt in Weise v Wardle (1874-75) LR 19 Eq 171. 18 Barnes v Addy (1873-74) LR 9 Ch App 244. This was repeated in Burstall v Breyfus (1884) 26 Ch D 35 where the Lord Chancellor added that this meant that they could not be made parties for the mere purpose of making discovery. The same view was expressed by Cotton LJ. 19 See Preface. 20 Bray pp 40-42. 21 Bray pp 55-57. 22 See Ch 3.5 below. 23 Bray p 20, notes on pp 40, 609 and 612. 24 Bray p 40. 25 Redesdale [53] at p 64. 26 Redesdale [53] at p 64. There was an issue over the extent to which this applied to assist foreign courts: see Ch 6.3.2 below. 27 Cardale v Watkins (1820) 5 Madd 18. Redesdale [191] at point V. 28 Redesdale [201] at p 237. Noble v Garland (1816) 4 Ves Jun 742. 29 Bray p45. 30 Finch v Finch (1752) 2 Ves Sen 491; Hambrook v Smith (1852) 17 Sim 209. Bray p19.

11

Chapter 3  Background to the Norwich Pharmacal case

sought) designed to identify a proper defendant. The reports are often somewhat difficult to follow (and in some instances were corrected in material respects in the course of subsequent judgments). An early example is Morse v Buckworth,31 in which the ship Turkey Merchant had caught fire destroying the plaintiff’s freight, apparently by the neglect of the master or crew.32 The action was brought (presumably against the master, though this is not entirely clear) to identify the owners of the ship so that an action could be brought. Discovery was permitted. A similar result was reached in Heathcote v Fleete33 where discovery was sought by the owner of goods following a lighter having overturned due to the negligence of the lighterman. Discovery was ordered (against, it seems, the lighterman) as to the owner of a wharf and lighter. In Moodalay v Morton,34 the bill was brought against the East India Company and its secretary seeking information about the authority under which a tobacco lease had been granted to others, thereby dispossessing the plaintiffs who held an earlier lease.35 The plaintiffs wished to know whether those who executed the lease did so as servants of the company, in which case the claim would lie against the company, or acted without authority, in which case the claim would lie against them personally. The secretary was made a party by virtue of the pragmatic exception for corporations, referred to above.36 Aside from issues as to the status of the East India Company as a private company rather than as a sovereign power, the key issue was whether discovery could be ordered before any substantive action was brought. It was argued that this was possible where the defendant was otherwise unknown, on the authority of Heathcote v Fleete. The Master of the Rolls (Sir Lloyd Kenyon) ordered discovery. There must be some doubt, however, about the currency of this possible exception by the early nineteenth century. Two significant authorities state the ‘mere witness’ rule in terms which arguably leave little room for the exception. The first was Fenton v Hughes,37 referred to above as a leading authority on the mere witness rule. The case concerned a bill for discovery brought in support of separate substantive proceedings to which the respondent was not a party. There was an allegation that the respondent was interested in the outcome of those substantive proceedings and, indeed, had been their instigator.38 The Lord Chancellor (Lord Eldon) concluded that, in the case of a bill for discovery, an allegation of an interest was not sufficient to displace the mere witness rule and 31 (1703) 2 Vern 443. 32 For earlier authorities see Holdsworth’s History of English Law (3rd edition, 1947, Vol 5) at 332, note 8. 33 (1702) 2 Vern Jr 398. Reported in combination with Morse v Buckworth (above). 34 (1785) 1 Bro CC  468, reproduced at 28  ER  1245. It is also reported at SC  2 Dick 652. The first (Brown) report was criticised in the subsequent case of Angell v Angell (below), at least according to one of the two reports of that decision, at SC 1 LJ Ch (OS) 9; the criticism does not appear in 1 Sim & St 82, reproduced in 57 ER 33. 35 The bill was seeking a commission to examine witnesses in India. This was treated as a bill for discovery. 36 The Master of the Rolls cited Lord Talbot in Wych v Meal, above. 37 (1802) 7 Ves JR 287. 38 Further detail as to the allegations made were set out in Irving v Thompson (1839) 9 Sim. 17 at 23, based upon the Vice Chancellor having called for the original briefs in Fenton v Hughes. It appears that it had been alleged that the respondent there was entitled to a share of the proceeds of the substantive action.

12

Persons having an interest

therefore to permit discovery.39 He left open the issue of whether such an interest would be sufficient on a bill for relief. 40 In reaching his conclusions, he confined the exceptions for corporations and agents to bills for relief. No mention was made of any other exceptions that might apply in the case of bills for discovery: the mere witness rule as stated seems to have been absolute, by contrast to the less certain position in the case of bills for relief. The second case suggesting a more absolute rule was Mayor and Commonality and Citizens of London v Levy.41 In that case, there was an issue as to liability for duty on imported goods alleged to have been those of an alien, Zachariah Levy. The bill sought discovery against a number of individuals to provide information as to whether the goods belonged to Mr Levy and whether he was then an alien. In particular, it sought discovery against two partners, one of whom had been recorded with the customs authorities as the importer. The Lord Chancellor (Lord Eldon) did not allow discovery because there was no clear statement as to the intended targets of the substantive action. He reasoned that some of the respondents (to the bill of discovery) must therefore necessarily have been mere witnesses, stating that ‘you have no right to a discovery except against the person, against whom you aver, that you mean to bring the action.’42 Nonetheless, in Angell v Angell,43 the Vice Chancellor (Sir John Leach) cited Moodalay v Morton and characterised this as applying to a bill to ascertain the appropriate defendant and therefore as necessarily preceding the action itself. This supported his conclusion that, in general, a commission to examine witnesses (a form of discovery) would not be available where an action could be brought but had not been. Of relevance for present purposes, he regarded Moodalay v Morton as the exception which proved the rule.

3.3  PERSONS HAVING AN INTEREST In the first half of the nineteenth century, there were also a number of cases dealing with how to treat someone having an ‘interest’ in the proceedings, though not otherwise a party. The choice was between treating them as mere witnesses (such that no discovery would be possible) or as equivalent to the parties (such that discovery would be possible). To a certain extent, this became an issue about how ‘interest’ was to be defined.44 The ultimate conclusion was that discovery would not be permitted unless such a person had sufficient interest that a substantive decree could be made against them.45 Having a financial interest in

39 This point was the subject of subsequent cases, ultimately reaffirming the conclusion recorded here. See Irving v Thompson (1839), Kerr v Rew (1840) and Queen of Portugal v Glyn (1840), all cited above. 40 The issue of whether a party interested in the outcome of the substantive action could be made the subject of a bill of discovery was the subject of a number of authorities: see Ch 3.3. 41 (1803) 8 Ves Jr 398. Referred to for simplicity as Levy below. 42 (1822) 8 Ves Jr 398 at 405. 43 1 Sim & St 83. 44 See Lord Cross in Norwich Pharmacal at 192B. 45 See Bray p 41.

13

Chapter 3  Background to the Norwich Pharmacal case

the outcome was not sufficient ‘interest’ for these purposes and discovery would not be permitted on this ground. The determining case was Queen of Portugal v Glynn.46 The background was that Don Miguel, as King of Portugal, obtained bills of exchange from London bankers in connection with his issuance of bonds. After his dethronement (following conflict), the new Queen Donna Maria arranged for the bills to be endorsed, purportedly by the same treasurer who had served under the King, to one Soares, resident in England, with instructions to recover the sums due and to remit them to her Government. Soares duly began an action at law against the acceptors of the bills. They then applied for discovery against Soares and the Queen as to the circumstances of the endorsement by the treasurer, on the basis that any duress might provide a defence at law. It was submitted that discovery could only be ordered against the parties. At first instance, in 1836, the Lord Chief Baron, Lord Abinger, rejected this, holding that discovery could be ordered against anyone having an interest, including the Queen in the case before him. He reasoned that in Fenton v Hughes no interest had been alleged and thus discovery was rejected, whereas in Plummer v May an interest had been alleged and thus discovery was allowed. Of interest for present purposes, he considered that this conclusion was supported by cases including Wych v Meal, Moodalay v Morton and Levy which established a principle that, where justice requires it, discovery could be ordered against a mere witness, even if they had no interest.47 He considered that they were exceptions which supported the general rule that discovery would be permitted against a party with an interest, but not normally against a mere witness. The case was appealed to the House of Lords, with judgment being given in 1840 (after argument in 1837). In the meantime, similar issues had been raised in Irving v Thompson48 and Kerr v Rew,49 in both of which the opposite conclusion had been reached. Discovery had been refused against someone with an interest in the outcome who was nonetheless not a party. On appeal in Queen of Portugal, the majority allowed the appeal, concluding that discovery was limited to the parties and could not be granted against the Queen merely because of her interest. Lord Wynford, dissenting, regretted that the Court was being tied up by ‘absurd forms’ and that its conclusion on a ‘mere technical ground’ would lead to injustice: an interest should be sufficient to allow discovery against someone who was not a party. 46 (1840) 7 Cl & F 466 in the House of Lords. 47 (1836) I Y & C Ex 644 at 680. 48 (1839) 9 Sim 17. Following the loss of a ship and its cargo, Thompson had begun proceedings on an insurance policy. The insurers brought a bill for discovery against him and also against Kruger, who was said to have had an interest in the policy, though he was not a party to the action brought on that policy. They sought discovery of matters relating to seaworthiness and to whether the goods were on board the ship. The Vice Chancellor (Sir Lancelot Shadwell) rejected discovery against Kruger on the basis that he was not a party to the record at law. It was irrelevant that he might benefit from that action. In reaching this view, he noted that in Fenton v Hughes, according to researches into the original brief, there had been an allegation of an interest in the success of the action. That case therefore stood as authority for the proposition (since applied) that an interest in the outcome did not make someone anything more than a mere witness, against whom discovery would not lie. 49 (1840) 5 My & C  154. In addition to supporting Irving v Thompson, Lord Cottenham LC drew attention to the fact that the report of Fenton v Hughes mentions that the respondent could not be a witness for the plaintiff at law on account of his interest.

14

Orr v Diaper

The speeches for the majority contain broad statements requiring that the respondent must be a party for substantive relief, not merely interested. These might suggest that discovery would only ever be ordered against a party, thereby overruling past exceptions. However, there is no sign that any of Morse v Buckworth, Heathcote v Fleet or Moodalay v Morton were cited in Queen of Portugal,50 though Lord Cottenham LC (giving the leading judgment for the majority) records having examined all cases on the subject. Moreover, there was no mention, at least by the majority, of the cases dealing with corporations or agents, both of which exceptions seem to have survived.51

3.4  SUBSEQUENT AUTHORITIES There appears to be no further authority on these issues until the key case of Orr v Diaper.52 The intervening years saw the contraction of at least some of the earlier exceptions to the mere witness rule. This included opposition to joining an agent for the purposes of costs and thus, as a party, for discovery.53 The closest to a relevant authority may be Dixon v Enoch,54 which dealt with the argument that discovery of the identity of the proprietor of a newspaper under statutory provisions55 should be limited by equitable principles, including that a bill for discovery would not be available against a mere witness. The case was decided on the basis that no such limit was intended. In passing, the Vice Chancellor (Sir John Wickens) noted that witnesses were for some purposes considered proper defendants to bills for discovery. It may well be that this was intended to be a reference to cases such as Moodalay v Morton, though there is no record that this was cited.

3.5  ORR V DIAPER The case of Orr v Diaper56 was the ‘sheet anchor’57 relied upon by the plaintiffs in the Norwich Pharmacal case. Unfortunately, it suffers from being the subject of several inconsistent reports. 50 The same can be said of Irving v Thompson, and Kerr v Rew. 51 See Ch 3.1 above. 52 See Ch 3.5 below. A number of other authorities were cited in Norwich Pharmacal dating from this period and said to illustrate that discovery of the name of a prospective defendant was an exception to the general rule that discovery could not be obtained against a witness: [1974] AC 133 at 155C-D. Other than those mentioned above, the remainder appear to relate to discovery against actual parties, albeit as to the identity of other individuals against whom claims might have been possible. The clearest example is Tetley v Easton (1856) 18 CB 643. Other examples, not apparently cited, could be given: Hambrook v Smith (1852) 17 Sim 209, Murray v Clayton (1872-73) LR 15 Eq 115. One case that appears on first sight to involve disclosure from a third party is The Murillo (1873) 28 LT 374; however this appears to have been a special procedure in Admiralty against a shipowner. 53 A key case was Barnes v Addy (1873-74) LR 9 Ch App 244. 54 (1871-72) LR 13 Eq 394. 55 Section 19 of 6 & 7 Will 4 c 76, passed in 1836, as later re-enacted by the Newspapers, Printers and Reading Rooms Repeal Act 1869 (c 24), Sch 2. 56 (1876) 4 Ch D 92. 57 [1974] AC 133, per Lord Morris at 179.

15

Chapter 3  Background to the Norwich Pharmacal case

The plaintiffs manufactured sewing cotton and thread which they sold both in England and overseas. They discovered that inferior cotton was being sold overseas, especially in Valparaiso, packed and marked in imitation of their own. They also discovered that the defendant shippers were responsible for certain shipments to Valparaiso and accordingly they sought information about the persons who had supplied the thread to the shippers. When no response was received, they applied for discovery so that they could bring proceedings against the counterfeiters. The defendants resisted discovery, principally on the basis that they were not parties against whom any relief was sought. This was supported by reference to cases including Dixon v Enoch, Queen of Portugal v Glyn and Levy, as well as passages from Redesdale. Those passages included a section stating, in general terms, that the jurisdiction on a bill of discovery ‘is exercised to assist in the administration of justice in the prosecution or defence of some other suit, either in the court itself or in some other court’, citing Moodalay v Morton. The passage dealing with the mere witness rule was not (at least, specifically) cited.58 Hall VC concluded that discovery should be provided. He said that ‘nothing but absolute necessity’ would compel him to the opposite conclusion, adopting language used in Dixon v Enoch (in the statutory context of newspaper proprietors). He concluded that the shippers were more than mere witnesses: ‘their position, they being the actual shippers, is different from that of mere witnesses. I think that the Plaintiffs do shew a title to sue’.59 The Vice Chancellor highlighted the fact that the plaintiffs did not know and could not discover the names of the wrongdoers and that justice required a solution: ‘In this case the Plaintiffs do not know, and cannot discover, who the persons are who have invaded their rights, and who may be said to have abstracted their property. Their proceedings have come to a dead lock, and it would be a denial of justice if means could not be found in this Court to assist the Plaintiffs.’60

The above is based upon the report of the case in the Law Reports.61 A  more detailed but generally less authoritative report62 suggests that the Vice Chancellor held that there was title to sue because there was a basis for an injunction restraining what appeared to be a continuing practice of shipping the thread. On that basis discovery could be ordered without making any exception to the general rule that there should be no discovery except against a substantive defendant. It has been observed that the abbreviated version in the Law Reports may have been the result of alterations by the judge.63 Orr v Diaper (1876) was decided after the Judicature Acts and after the passage of the Rules of Court 1875 which provided a new unified regime for 58 Redesdale [188] at p 223, at point III. 59 (1876) 4 Ch D 92 at 96. He distinguished Dixon v Enoch (as being based upon statute and criminal matters) and, on another point, Carver v Pinto Leite (1871-72)  LR  7 Ch App 90 (as being about restricting the scope of discovery). 60 (1876) 4 Ch D 92 at 96. 61 (1876-77) LR 4 Ch D 92. Similarly, 46 LJ Ch 41. 62 25 WR 23. See also to like effect 35 LT 468. 63 Lord Kilbrandon in Norwich Pharmacal at 202A-B.

16

Upmann v Elkan

discovery, Order XXXI. In the case itself, all the relevant authorities and texts cited were about prior Chancery practice and there was no explicit mention of the new rules. Those rules provided for discovery only as between parties to the litigation.64 However, it became settled over subsequent years that the new rules were not intended to be exclusive and thus prior practice survived except where specific provision was made.65

3.6  UPMANN V ELKAN The case of Upmann v Elkan66 is also significant and was heavily relied upon in Norwich Pharmacal. In that case, certain cigar manufacturers in Cuba discovered that imitation cigars bearing their brand had been imported into England. They sought an injunction against the consignees, Messrs Elkan. The St Katherine’s Dock company was also made a defendant, though it appears no relief was sought against that company. An ex parte injunction was obtained against Elkan seemingly to restrain them from removing the cigars and from infringing the mark. An interim injunction appears to have been granted without opposition, Elkan having expressed a willingness to act as directed but preferring an order to undertakings.67 In the meantime, they had provided information as to the consignors and the persons to whom the cigars were to be delivered. They also agreed to act as the court might direct. Accordingly, by the time of the hearing the only real issue concerned costs as between the plaintiffs and Elkan.68 This appears to have turned upon arguments as to whether an injunction could ever have been granted and whether they had acted properly once they became aware of the situation. Lord Romilly MR stated that, in the case of a spurious brand, the dock company and the consignee would be under a duty to give information and to avoid dealing with the goods until the brand had been removed. He reasoned that they were ‘mixed up’ with a shipper who makes use of spurious marks and that the situation arose from their having such a dishonest correspondent. Two passages are worth citing in full given subsequent developments:69 ‘I assume, then, in addition, that the person so applied to is innocent and ignorant of the fraud. It is his duty at once to give all the information required, and to undertake that the goods shall not be removed or dealt with until the spurious

64 Order 31 rule 1 (interrogatories) and Order 31 rule 12 (documents). Brown v Watkins (1885) 16 QBD 125 confirmed that the reference was to parties to the litigation. 65 See, for example, The China Transpacific Steamship Company v The Commercial Union Assurance Company (1881-82) LR 8 QBD 142, Attorney General v Gaskill (1881-82) LR 20 Ch D 519 and Lyell v Kennedy (No 1) (HL, 1882-83) LR 8 App Cas 217. See also Bray, p5. That text, published 1885, devotes much attention to the principles and practice existing before the Judicature Acts. Ramsden v Brearley (1875) 33  LT  322 decided that the statutory procedure for discovery of the identity of newspaper printers, publishers and proprietors must survive, albeit in adapted form, after the demise of the bills for discovery procedure by the Judicature Acts. See also Hillman’s Airways, below. 66 (1871-72) LR 7 Ch App 130. 67 (1871) 12 LR Eq 140 at 141. 68 The plaintiffs had agreed to pay the dock company’s costs but sought to recover them from Elkan: (1871) 12 LR Eq 140 at 142. 69 (1871) 12 LR Eq 140 at 145 and 147.

17

Chapter 3  Background to the Norwich Pharmacal case brand has been removed, and to offer to give all facilities to the person injured for that purpose …’ ‘I also think that the answer of the Defendants is not sufficiently distinct as to the steps they ought to have consented to take to avoid being mixed up with the transaction … In fact, the Defendants treat the matter as if the consignment had been made to the order of a stranger, and they had never undertaken to act as friendly agents. It is, no doubt, very unfortunate to be mixed up with a shipper who makes use of spurious trade-marks; but the person who is injured by the fraud is not called upon to indemnify the consignees for the losses they have sustained by reason of the misconduct of the shipper.’

The outcome was appealed by Messrs Elkan but was upheld. The Lord Chancellor (Lord Hatherley) stated that an injunction would have been granted if no offer of redress had been made.70 Even though innocent themselves ‘it was still their duty, from the first moment, to give all the information they possibly could and to offer all redress.’71 He concluded that they were right to provide details of the consignors.

3.7  LATER DEVELOPMENTS As has been mentioned above, the procedures involving the bill for discovery were superseded after the Judicature Acts. However, the old authorities remained relevant. In 1885, Bray’s text identified Orr v Diaper as the leading authority for what he regarded as an exception to the normal rules, allowing discovery to be obtained from someone who was not otherwise a party or interested in the action.72 The other authorities cited in support were Heathcote v Fleet, Morse v Buckworth, Moodalay v Morton and Angell v Angell, all described above.73 Bray noted that Levy contained passages inconsistent with Orr v Diaper but said that the language used by Lord Eldon there ‘perhaps required some little qualification’.74 The text does not cite Upmann v Elkan. In 1890, an attempt was made, in Elder v Carter ex parte Slide and Spur Gold Mining Company,75 to obtain production of documents from a third party mining company on the basis of Order 37, rule 7. This provision gave the Court the power to order the attendance of any person ‘at any stage of the proceedings’ for the purpose of producing any documents which that such person could be compelled to produce a trial. The Court of Appeal rejected this attempt to create a generalised right of third party disclosure. In doing so, Lindley LJ stated that: ‘It has long been a rule well established (the origin of it I do not recollect) that you cannot get discovery except from a party to your action. There is another rule,

70 71 72 73

(1871-72) LR 7 Ch App 130. Ibid at 133. Bray p 40. See also pp 609 and 612. The passages also cite a number of other cases but those mentioned above are those that appear to deal specifically with disclosure from a third party. 74 Bray p 614. 75 (1890) LR 25 QBD 194.

18

Later developments

equally old and well established – that you cannot make a mere witness a party in order to get discovery from him.’ To similar effect, in Burchard v Macfarlane76 Lord Esher MR stated that ‘In the Courts of Chancery before the Judicature Acts there was no such thing as a bill of discovery against a third person to discover matters in an action between other parties in which he had no interest.’77 This statement was made in the course of reviewing the general English authorities to determine the proper interpretation of a statute requiring a witness to produce documents for the purposes of a commission related to proceedings in Scotland. The conclusion was that a broad interpretation, effectively creating a general right of discovery, should be rejected. In his Digest of the Law of Discovery published in 1910, His Honour Judge Bray considered that an action for discovery mirroring the old bill of discovery could still be brought, including (amongst others78) in the circumstances of Orr v Diaper.79 He gave no later examples in this context. He cited Burchard on the general point that a person could not be made a party for the purposes of disclosure, being a mere witness.80 In his Law of Discovery, in 1912, Robert Ross recorded that the bill of discovery remained of relevance for discovering the names of those against whom an action could be brought.81 There are no subsequent authorities prior to Norwich Pharmacal which deal directly with the issues ultimately decided there. In the Hillman’s Airways case,82 the statutory process for disclosure of the identity of newspaper proprietors was reaffirmed notwithstanding that bills of discovery were no longer available after the Judicature Acts. There are other cases where, to varying degrees, there was a statement of general principle that discovery would only be available against proper parties to the substantive claim.83

76 [1891] 2 QB 241. 77 Ibid at 247. The similar statement by Fry LJ (at 251) was less absolute. 78 The other heads included the statutory claim to discover the identity of newspaper proprietors and the possibility of actions for discovery in support of overseas proceedings and arbitrations. 79 Point 14 of his Digest, p 5, developed further at p 37. 80 Also Symonds v City Bank (1885) 79 LT Jo 175; (1886) 34 WR 364. 81 Ross Law of Discovery (1912), p 11. 82 Hillman’s Airways Limited v Societe Anonyme d’Editions Aeronautiques Internationales [1934] 2  KB  356. In fact, the provision was later re-interpreted as removing a privilege rather than as conferring a basis to obtain disclosure: Ricci v Chow [1987] 1 WLR 1658. 83 A good example is Gould v National Provincial Bank [1960] Ch 337 in which discovery was sought against a party to the proceedings but was refused on the basis that he was not properly a party and thus should not be ‘retained as a party for no purpose other than discovery’ (Russell J).

19

4

The Norwich Pharmacal case

This chapter summarises the central case of Norwich Pharmacal Co and others v Customs and Excise Commissioners.1 At first instance, the judge had ordered that discovery should be provided by the Commissioners to identify alleged wrongdoers. This was then overturned unanimously by the Court of Appeal (led by Lord Denning MR) before being unanimously reinstated by the House of Lords. There are five full speeches in the House of Lords and, whilst all of their Lordships supported the existence of an action for discovery in circumstances including the case before them, differences exist in the reasoning employed. Those differences have been significant in the subsequent developments and are thus explored at some length in this chapter.

4.1  THE FACTS The registered proprietors and licensees of patents for the chemical furazolidone (a medicament for poultry) were aware that unknown third parties were importing that chemical into the UK. They considered this an infringement of their patent rights and wanted to find out the names and addresses of the importers so that they could bring proceedings. The Customs and Excise Commissioners were thought to have this information since, by virtue of their statutory powers, they required importers to complete such information on a number of forms. The plaintiffs argued that the Commissioners were infringers of the patent for a number of reasons, including that they were aiding and abetting the importers’ infringement by not exercising their powers to seize the goods. They also argued that they had a free standing right to obtain discovery, whether or not the commissioners were infringing the patents. They made plain that their only real interest in the substantive claim against the commissioners was to obtain information. The Commissioners admitted the validity of the patents, the fact of import and that they knew names and addresses. They objected to providing disclosure on the basis that they were not infringing the patent themselves and could not 1

[1974] AC 133, including both House of Lords and Court of Appeal. For the first instance decision of Graham J see [1972] 1 Ch 566.

21

Chapter 4  The Norwich Pharmacal case

disclose information obtained pursuant to a statutory power, particularly since that would discourage importers from providing accurate information to the commissioners in future. This last was supported by affidavit evidence. The matter came before the court at the discovery stage when the plaintiffs sought to challenge the commissioners’ claim that they were precluded from providing documents either by statute or by public interest privilege.

4.2  FIRST INSTANCE Mr Justice Graham was unimpressed by the substantive claim for infringement against the commissioners but concluded that there was a free standing basis for ordering disclosure. The judge acknowledged the general rule that there was no independent action for discovery against a party against whom no reasonable cause of action could be alleged. However, Orr v Diaper2 was in his view authority for allowing an exception in proper circumstances. It had never been overruled and had been cited without disapproval in Bray3 and, more recently, in Halsbury’s Laws of England.4 He relied also upon the fact that the plaintiffs had been entitled to discovery in Upmann v Elkan5 and, in particular, had been so entitled against the non-infringing dock company. The customs authorities in the present case had in some respects more control over the goods and thus (having rejected public interest privilege and similar arguments) it was appropriate to order discovery.6

4.3  COURT OF APPEAL The Court of Appeal (Lord Denning MR, Buckley and Roskill LJJ) unanimously rejected any substantive cause of action. On the question of an independent action for discovery, they disagreed with the first instance judge, unanimously holding that no such action was supported by authority. Although the issue did not therefore arise, they also found that the public interest would have blocked disclosure, principally because they would not wish to discourage candour in reporting to the authorities. Lord Denning MR regarded both Orr v Diaper and Upmann v Elkan as cases where a cause of action existed for an injunction. Discovery of names could be ordered during such proceedings under normal principles. By contrast, he 2 (1876) 4 Ch D 92. See Ch 3.5 above. 3 Bray The Principles and Practice of Discovery (1885), described in Ch 3, above. 4 3rd edition, 1955, p 11 note (u) (the edition that was current at the relevant time). That note cites Orr v Diaper for the proposition that an action for discovery could be brought in special circumstances, despite being practically unknown since the Judicature Acts. 5 (1871-72) LR 7 Ch App 130. See Ch 3.6 above. 6 He said that it was impossible to catalogue in detail the special cases where discovery might be appropriate. His test appears to have been whether discovery would ‘aid the proper and expeditious administration of justice’ (p 583D). He also adopted from Bray the test that ‘such interest as that a decree could be made against him or as that he might be affected by the decree’. However, in that passage (pp 40–41) Bray was using ‘interest’ in a technical sense, closely related to the formal parties: see pp 42–48.

22

House of Lords

regarded the present case as one where there was no reasonable action which the plaintiff was intending or capable of bringing. He allowed the appeal. Buckley LJ was of the same view. He drew attention to the fact that an injunction had already been granted on an interim basis in Upmann v Elkan. As to Orr v Diaper, he highlighted that the fuller report suggested that Hall VC had found that the plaintiffs did have a right to sue the defendant shippers, as required by the rule stated in Lord Redesdale’s text on pleading.7 The shippers were ‘exposed to the risk of being restrained by injunction from continuing to ship the goods.’8 The basis for that injunction was that they must not aid the infringement by letting the goods get into the hands of others. This and the proposition that there might be a duty to give information were based upon Upmann v Elkan. There was nothing similar in the present case and thus there could be no substantive relief. Roskill LJ also allowed the appeal, concluding that Upmann v Elkan was a case in which equity intervened by injunction and thus was not an authority supporting an action for discovery alone, whilst Orr v Diaper should (based upon the more detailed reports) be similarly understood as a case in which the plaintiffs were entitled to substantive relief such that it was an illustration of rather than an exception to the rule.

4.4  HOUSE OF LORDS As noted above, the unanimous decision of the Court of Appeal was subsequently reversed, again unanimously, by the House of Lords, determining that there was an independent substantive claim for discovery. The thread that links all five speeches is that it would not be right to make the availability of discovery depend entirely upon whether the respondent had incurred some minor liability which the plaintiff might not have any intention of pursuing. Where there could otherwise be no proceedings, discovery of names should be ordered against someone who had sufficient involvement (here there were several formulations of the test) to make this appropriate. Lord Reid noted that the origins of the so-called mere witness rule lay in the assumption that eventually testimony would be available from that witness in proceedings. Its purpose was not to prevent but to postpone access to the information sought; it should not be divorced from its proper sphere.9 As to the authorities: ‘[The authorities] are not very satisfactory, not always easy to reconcile and in the end inconclusive. On the whole, I  think they favour the appellants [plaintiffs], and I  am particularly impressed by the views expressed by Lord Romilly MR and Lord Hatherley LC in Upmann v Elkan. They seem to point to a very reasonable principle 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

7 Redesdale A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (5th edition, 1847). 8 [1974] AC 133 at 145. 9 [1974] AC 133 at 174B.

23

Chapter 4  The Norwich Pharmacal case who has been wronged by giving him full information and disclosing the identity of the wrongdoers.’10

He referred to one who had ‘unwittingly facilitated’ the perpetration of the wrong.11 It was quite illogical that disclosure depended upon whether a person who was ‘mixed up in the affair’ had to any extent incurred liability, even if there was no intention to bring a claim. Pausing there, Lord Reid’s reference to a ‘duty to assist’ has been very influential in the subsequent development of the jurisdiction. It has often been cited where the boundaries have been extended. Similarly, the meaning of his reference to ‘full information’ has been addressed on many occasions. Lord Morris accepted that there was a general principle that there should be no independent cause of action for discovery against a mere witness. He also concluded that Orr v Diaper ‘perhaps need not on its facts have been regarded as an exception’ but had been so regarded.12 He relied upon the fact that Bray had regarded it as a special case and, in so doing, had not seen it as being heretical. As to Upmann v Elkan he concluded that the circumstances of the commissioners differed materially given that the information came to them under statutory powers; there could be no obligation on them to disclose information without court consideration. Even so, he said that they were not mere outsiders or bystanders. He concluded that the interests of justice required discovery. On the authorities, Viscount Dilhorne referred to Moodalay v Morton as the most helpful case, concluding that it had not been inferentially overruled by the general statements of principle in cases such as Queen of Portugal v Glyn,13 which it had been argued decisively disposed of the notion of discovery where the needs of justice required this. He noted that Upmann v Elkan was not a case on discovery at all. As to Orr v Diaper, he considered that the decision was based upon two grounds: first, the shippers were not mere witnesses (being actual shippers) and, second, they could have been sued for an injunction. He thought that the decision could well have been the same even if the second basis had not existed. In any event, he was influenced by the fact that the case had been followed in other countries and was consistent with the textbooks. The thread linking each of Moodalay, Upmann and Orr was that the respondents were ‘involved in the transaction’14 and he concluded that the commissioners were so involved in the present case. Lord Cross undertook perhaps the most extensive review of prior authorities. In so doing, he noted the difficulties arising from examining such old authorities15 but concluded that the mere witness rule had nothing in principle to do with the question of whether discovery could be ordered as to the identity of someone against whom the plaintiff wished to claim relief: ‘in such cases there can be no 10 11 12 13 14 15

24

[1974] AC 133 at 175A. Ibid at 175C. Ibid at 180F. See Ch 3.3 above. The authorities referred to further below are all discussed in Ch 3. [1974] AC133 at 188A. Recognising that the lawyer of today can at best have only a superficial understanding of the procedure developed when law and equity were administered in separate courts and when the reports were in the form of brief notes which mean very little to the modern reader: at 191F.

House of Lords

question of calling the defendant to give evidence at the hearing since without the disclosure of the name proceedings cannot be brought at all.’16 On one side of the argument, he noted that reliance could be placed on Moodalay v Morton and its apparent support in Angell v Angell. On the other he noted the language of Lord Eldon LC in Levy. He then turned to Orr v Diaper and reasoned that an injunction could have been obtained, on the authority of Upmann v Elkan.17 For that reason, the defendant was not a mere witness.18 However, he noted that it would be ‘utterly illogical’ to make the availability of discovery depend upon whether relief could be obtained against the shippers in Orr v Diaper, giving the example of shippers who had ceased to trade. On the authority of Upmann v Elkan they would still owe a duty to provide information. He cited Bray19 which treated Orr v Diaper as an instance of an older principle, without referencing the fact that it so happened that proceedings could have been brought in that case.20 Further, he found ‘great assistance’ in the decision reached in 1887 by the Supreme Court of Massachusetts in Post v Toledo, Cincinnati and St Louis Railroad Co.21 In that case, the plaintiffs sought discovery of the identities of stockholders of an Ohio corporation since they wished to bring proceedings against them, under statute in Ohio. The discovery action was brought in Massachusetts against the officers, who were based there (no effectual service having been possible on the corporation itself). The court reasoned that Moodalay v Morton had not been cited in Levy and that the facts in the latter case did not require that it be overruled. Orr v Diaper was cited in support of the view that discovery could be granted of names where otherwise no action could be brought.22 The court concluded that discovery should be ordered since the officers were persons ‘who stand in some relation to [the persons against whom the plaintiffs intend to bring a suit] or to their property’. Lord Cross noted that the Post decision was from a court of high standing, which had decided the case on the basis of old English Chancery authorities which, as the case was decided back in 1887, the judges were probably in a better position to understand. Against this background, he reiterated that it would be ‘quite irrational’ to make the availability of discovery depend on being able to obtain some other relief. The test, as in Post, should be about the nature of the relation between the respondent to the discovery request and the persons whose names are sought. On the facts, the commissioners had effective control of the goods and thus (having rejected other points such as public interest privilege) would be required to give discovery. Lord Cross concluded by dismissing fears that this would lead to fishing requests since the case had nothing to do with the collection of evidence but was simply about asking for the name of a potential

16 [1974] AC 133 at 192F. 17 Ibid at 193G. 18 Ibid at 195B. 19 Bray The Principles and Practice of Discovery (1885). 20 [1974] AC 133 at 195D-F. 21 (1887) 11 N.E.Rep. 540 (Field J). 22 So too The Murillo (1873) 28 LT 374.

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Chapter 4  The Norwich Pharmacal case

defendant.23 He also outlined the way in which the Court should approach future requests (a passage often cited since):24 ‘[In] any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the court. Then the court would have to decide whether in all the circumstances it was right to make an order. In so deciding it would no doubt consider such matters as the strength of the applicant’s case against the unknown alleged wrongdoer, the relation subsisting between the alleged wrongdoer and the respondent, whether the information could be obtained from another source, and whether the giving of the information would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant. The full costs of the respondent of the application and any expense incurred in providing the information would have to be borne by the applicant.’

Lord Kilbrandon noted at the outset that the case had become a pure action for discovery, without alleging infringement. He considered that ancient precedents could not provide positive assistance, due to inconsistencies in the reports25 and thus the issue was whether one could identify principles that were prima facie acceptable, provided that they had never been authoritatively negatived.26 On the last point, he noted that Queen of Portugal gave rise to some difficulty. It was however a case with curious features, judgment being given after three years and with an unusually controversial debate27 and, in any event, did not deal specifically with the problem of identifying a proposed defendant. He reasoned that it would be ‘incredible’ if vulnerability to an action should be a decisive characteristic in determining whether discovery should be ordered; this would not be a rational distinction.28 The mere witness rule had no application where ‘there can be no litigation’ without disclosure.29 Here the commissioners were ‘mixed up with the transaction’ (Upmann v Elkan) or ‘stand in some relation to’ the intended defendants or their property (Post) or to the underlying goods, such that they should be entitled to discovery of the names.30 Turning to the authorities, he acknowledged that there was no direct authority that supported the entitlement.31 It was however not inconsistent with Upmann v Elkan and Hunt

23 24 25 26 27

28 29 30 31

26

[1974] AC 133 at 199C–E. Ibid at 199F. Ibid at 202C, citing Moodalay v Morton and Orr v Diaper in particular. [1974] AC 133 at 202C. Referring, presumably, to the fact that Lord Wynford’s dissenting speech was interrupted by several ‘interlocutory observations’ from Lord Lyndhurst and seems to have been subject to replies from each of Lord Brougham, Lord Lyndhurst and Lord Cottenham LC. This observation would not apply to the cases of Irving v Thompson and Kerr v Rew which had endorsed the same principle. [1974] AC 133 at 202H–203A. Ibid at 203B. Ibid at 203F–204D. Ibid at 204D. He had earlier noted that Orr v Diaper was a case in which there was a cause of action against the shippers: ibid 201D–F.

Subsequent developments

v Maniere32. Moreover, ‘what is more important, if one is searching for principles rather than collating decisions, is that there are broad statements to be found in authoritative sources which are in harmony with the spirit of the decisions, and do not seem to depend upon any seemingly extraneous fact, such as the liability of the defendant in discovery to be sued …’.33 He then cited a number of texts34 which treated cases such as Moodalay v Morton and Orr v Diaper as authority for discovering the names of an intended defendant, ignoring Queen of Portugal. He also cited authorities in other jurisdictions.35 In particular, in Colonial Government v Tatham,36 the courts in Natal had considered Orr v Diaper and had ordered discovery of names on the basis that this was necessary for the administration of justice. Lord Kilbrandon referred elsewhere in his judgment to the decision in Massachusetts, in Post. He concluded that discovery should be granted given the relationship in which the commissioners stood to the goods imported, this being the ‘only practicable source’ of the information.37 All five of their Lordships also determined that there was no objection to discovery on the basis of confidence or public interest immunity, whether by virtue of the statutory powers by which the Customs commissioners had obtained the information or otherwise.38

4.5  SUBSEQUENT DEVELOPMENTS The Norwich Pharmacal case established (or revived) the jurisdiction ‘to bring an action to identify the name of a wrongdoer’. Someone who was ‘mixed up’ or involved in the wrongdoing came under a ‘duty to assist’39 by providing this information. The various factors relevant in deciding whether or not to grant relief in this context have of course developed since, as addressed in subsequent chapters, particularly Chapters 7 to 11. Before dealing with those factors, however, it is convenient to deal with the expansion of the applicable principles and, in particular, the ‘duty to assist’ beyond the context of identifying a wrongdoer. This is described in Chapters 5 and 6.

32 (1864) 34 Beav 157. This case concerned wharfingers who had been notified by the holders of a true mark that certain champagne was an imitation, bearing a counterfeit mark, and that they would be seeking an injunction to prevent is distribution. The wharfingers accordingly refused to deliver the wine to its intended recipients, one of whom then brought an action at law for conversion. Proceedings were then brought by the wharfingers for an injunction restraining the action at law. The court granted the injunction, holding that wharfingers had been fully justified in their actions as they would have acted culpably if they had delivered the champagne. 33 [1974] AC 133 at 204D–E. 34 Bray The Principles and Practice of Discovery (1885), Joseph Story Commentaries on Equity Jurisprudence: as administered in England and America (1838, 1892) and Snell’s Equity (1868), which cites Angell v Angell and Levy in support of the proposition that discovery can be sought to ascertain the identity of the proper party against whom the suit should be brought, albeit that this is a rare occurrence. 35 [1974] AC 133 at 204E–205G. 36 (1902) 23 Natal LR 153 (Bale CJ, Finnemore J and Beaumont AJ). 37 [1974] AC 133 at 205G-H. 38 Public interest immunity is dealt with further at Ch 11.4 below. 39 (1871-72) LR 7 Ch App 130 per Lord Reid at 175A.

27

5

Full information to assist the victim of fraud: Bankers Trust

This chapter considers the origins and scope of so-called Bankers Trust orders by which the court is prepared to compel third party disclosure by banks and others in favour of the victims of fraud who are seeking to establish the whereabouts of misappropriated assets and identify those who may have been involved in either perpetrating the fraud, concealing it, or in laundering the proceeds. The development of this strand of the jurisdiction has been one of the reasons why English law (and those systems based on it and which have regard for the decisions of the English courts) has proved so popular in attracting the victims of fraud to the English courts. It is with the benefit of these judge-made remedies that the courts have reacted to the needs of these victims and a general trend towards transparency in commercial dealings. It is clear that relief may be granted in relation to any form of assets.1 The starting point – before turning to the Bankers Trust decision itself – is an examination of the early developments of the Norwich Pharmacal principles and the ongoing developments in the 1970s in relation to what can loosely be described as ancillary disclosure in relation to injunctive relief in various forms. Related procedural issues are considered in Chapter 12.2

5.1 EARLY DEVELOPMENTS FOLLOWING NORWICH PHARMACAL The relief sought and obtained in Norwich Pharmacal was limited to the names and addresses of the importers who were believed to be importing in violation of the applicant’s patents. In due course the provision of this information led to substantive proceedings. There were soon cases in which discovery of names of other potential defendants was ordered at an interlocutory, even an ex parte stage: RCA  Corporation v 1

For recent examples, see Kyriakou v Christie Manson and Woods [2017] EWHC 487 (QB), dealing with misappropriated antiques and jewellery; and Ong v Ping [2015] EWHC 3258 (Ch) recording the basis for a Bankers Trust order made in relation to the proceeds of sale of a house by the representative of an estate. 2 See, in particular, Ch  12.4 as regards secrecy. The related jurisdiction under the Bankers Books Evidence Act 1879 is mentioned in Ch 15.10.

29

Chapter 5  Full information to assist the victim of fraud: Bankers Trust

Reddingtons Rare Records3 and Loose v Williamson.4 In both of those cases the existence (or imminence) of substantive proceedings would tend to suggest that further names might have awaited conventional discovery in due course. However, the earlier grant of discovery is consistent with the ‘duty to assist’ theme which underpins Norwich Pharmacal. In RCA v Reddingtons the issue related to pirate music and the applicants sought an injunction against certain retailers, as well as broad disclosure regarding the makers of the records, against whom they also wanted to proceed. Mr Justice Goff granted injunctive relief and further expressly applied Norwich Pharmacal in finding that in light of the ‘strong prima facie evidence’ of infringement the respondents were under a duty to assist in providing the names of the makers of the records. In Loose v Williamson the applicant sought declarations and injunctions restraining two boat owners from removing shellfish from a fishery. He also sought discovery as to the names of individuals who had been on the two boats, as well as details of a third boat which had apparently been assisting them in the alleged wrongdoing. Mr Justice Goulding granted the discovery, again citing Norwich Pharmacal, and, in particular relying on Lord Reid’s enunciation of the relevant principles (ie that where someone is mixed up in the tortious acts of others so as to facilitate their wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and the identity of the wrongdoers). It is of some significance in Loose v Williamson that the applicant’s request for discovery was at a very early stage (in effect ex parte) and that it was sought by way of an application or ‘motion’ within substantive proceedings against the boat owners. It was also challenged as coming within an impermissible category of fishing by way of interrogatories. The judge rejected this challenge and cited Norwich Pharmacal as having recognised a ‘right to relief … distinct from the right to serve interrogatories during the course of an action.’5 It was perhaps also of significance that the judge perceived an imminent danger to the applicant’s fishery from poachers who could inflict ‘irreparable damage’. This was no doubt a feature which in the judge’s mind justified the ex parte nature of the relief and to some degree foreshadows the later application of Norwich Pharmacal principles to what is sometimes called ‘the hot pursuit’ of the proceeds of fraud for which the Bankers Trust order was specifically designed. The other case relied upon (in name at least) in Loose v Williamson was EMI v Sarwar,6 a decision of the Court of Appeal applying the now famous case, Anton Piller KG v Manufacturing Processes Limited.7 That case had endorsed a recent line of authorities in which the courts had granted ex parte orders requiring defendants to permit the plaintiffs’ solicitors to enter their premises and to inspect (and if necessary remove) documents and other evidence including physical evidence (such as items made in breach of IP rights) where there was a

3 [1974] 1 WLR 1445. 4 [1978] 1 WLR 639. 5 [1978] 1 WLR 639 at 639H. 6 [1977] FSR 146. 7 [1976] Ch 55.

30

The Mareva line of authorities

concern that otherwise such evidence might be destroyed (and so not be available on discovery in the intended action). In EMI  v Sarwar, the Court of Appeal8 permitted an extension of Anton Piller in requiring disclosure of the names and addresses of those responsible for supplying infringing tape recordings, as well as immediate disclosure of documents relating to the acquisition, disposal and distribution of the tape recordings. Norwich Pharmacal itself does not appear to have been cited but perhaps that is not altogether surprising because in EMI  v Sarwar there was a substantive action being brought against the respondent (ie  other than for the discovery alone) and the absence of any such substantive cause of action against the person required to give discovery had been Lord Denning’s principal objection to the Norwich Pharmacal ‘duty to assist’ principle.9 A further early example is provided by OCLI Optical Coatings v Spectron.10 In that case, four individuals had defected to a rival business and were accused of misusing information confidential to the plaintiff. An Anton Piller order had been granted at first instance, although the judge refused to give ancillary discovery requiring the defendants to identify anyone to whom they had supplied or from whom they may have received confidential information. This part of the application was refused on grounds of the privilege against self-incrimination. The Court of Appeal allowed the appeal and made the order for ancillary discovery.

5.2 THE MAREVA LINE OF AUTHORITIES The modern-day freezing injunction comprises an interim order which prohibits a party from disposing of or otherwise dealing with its assets.11 It is designed to prevent a defendant from hiding, moving or otherwise unjustifiably dissipating its assets so as to render itself judgment proof. The order is therefore typically sought by a claimant to preserve the defendant’s assets until any judgment can be obtained or satisfied. It can be obtained at any stage in proceedings, including after judgment has been given, but typically it is sought at the outset of proceedings and can represent a very significant tactical advantage, especially if it catches the defendant unawares. The English court has the power to grant a freezing injunction both in respect of assets within England and Wales (domestic) and also assets situated abroad (worldwide). Such power is now derived from the Senior Courts Act 1981, s 37. It is irrelevant where the defendant is physically located, so long as the court has jurisdiction over it. The relevant provision is CPR r 25.1(1)(f), which provides that the court can make such orders by way of interim remedy.

8 The Court of Appeal included Lord Denning MR, who had been instrumental in developing the Anton Piller jurisdiction, but who had in the Court of Appeal rejected any duty to assist in Norwich Pharmacal. 9 See generally Ch 4.3 above. 10 [1980] FSR 227. 11 For a fuller treatment, see S Bushell and P Burrell International Fraud and Asset Tracing (3rd edition, 2014), Section 4.

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Chapter 5  Full information to assist the victim of fraud: Bankers Trust

The freezing injunction described above derives from the Court of Appeal’s well known decision in Mareva Compania Naviera v International Bulk Carriers12 in which the ship owners were granted an injunction against time charterers of the vessel to prevent them from removing outside the English jurisdiction the money they had received from sub-chartering the vessel. In reaching this decision, the Court of Appeal overturned the earlier practice which, based upon Lister v Stubbs,13 had proceeded on the basis that injunctive protection could not be given to a potential creditor until judgment had actually been obtained. The freezing injunction in the Mareva sense prohibits the defendant from disposing of or dealing with its own assets to defeat the claimant’s prospective judgment. Such an order can comprise a prohibition relating to a single identifiable asset, specific assets, an order linked to an amount covering the likely sum that the claimant would recover at trial; and an unlimited order covering all of the defendant’s assets. Alternatively, where the claimant has a proprietary interest in respect of an asset, or its proceeds (ie it asserts that they are, or represent, its own property), it may seek that a proprietary injunction be granted over the specific assets. The distinction between the pure freezing injunction and the proprietary injunction has some practical significance because in relation to the former the claimant will need to show that there is a ‘real risk of dissipation’ ie that assets will be put beyond the reach of the claimant and thereby frustrate the enforcement of any judgment. In relation to a proprietary injunction, the claimant does not have to address that threshold because he is asserting a claim to the assets themselves.

5.3  IMMEDIATE PREDECESSORS OF BANKERS TRUST It is in relation to the development of the proprietary injunction that the path was first laid for the emergence of what later came to be known as a Bankers Trust order. The first predecessor cases were cases in which an injunction was granted to restrain dealings with property said to represent the traceable proceeds of the plaintiff’s property. In the first, London and County Securities v Caplan,14 disclosure was granted by Mr Justice Templeman against an innocent bank. For present purposes, it is relevant to note that the underlying case was one of fraud in which the plaintiff was seeking to recover some £5 million of monies which the defendant, Mr Caplan, had embezzled whilst employed as the plaintiff’s manager. The defendant had de-camped to the United States, where part of the monies was believed to be. The judge was faced with a strong prima facie proprietary claim in circumstances where there was a sense that the defendant would attempt to conceal the embezzled funds and put them beyond the plaintiff’s reach. A Mareva injunction had been granted on an earlier occasion, also by Templeman J, which also included assets outside the jurisdiction, the evidence being that certain sums were held at accounts in some foreign banks which were subsidiaries of Lloyds Bank. In the process, Templeman J made an order against Lloyds Bank to 12 [1975] 2 Lloyd’s Rep 509. 13 [1890] 45 Ch D 1. 14 Unreported, 26 May 1978.

32

Immediate predecessors of Bankers Trust

procure from their subsidiaries statements of the bank accounts of their foreign subsidiaries and to disclose them to the plaintiffs. It appears that this order was made specifically on the basis that it was to enable the plaintiff to piece together what assets Mr Caplan had belonging to the plaintiff and to take steps to seize them. His later judgment records that ‘All that was done because the plaintiffs wished to find out where the assets which they said had been embezzled by Mr Caplan had gone to’ so that they would be able to ‘take steps to seize [assets] if in truth they derive from the plaintiffs’ assets’.15 In other words, the analysis was proprietary. Lloyds Bank was not a party to the proceedings, but intervened and was allowed to challenge the scope of the order made. The matter came back before Templeman J and the judgment is noteworthy in two respects. First, in reaffirming the disclosure order, the judge neatly side-stepped the issue of the precarious position in which the foreign banks would find themselves, if complying with the order would put them in breach of a local law. This risk was avoided by providing a specific exemption from compliance if that was the case.16 The second noteworthy point is that Templeman J specifically dismissed the question of ‘jurisdiction’, in the sense of the court’s ability to make such an order. He said: ‘Mr Chadwick submitted that there was no jurisdiction to make an order against the foreign banks … but in my judgment it is not so much a question of jurisdiction, but is a question of discretion. I agree … that the relief which is now sought is onerous and is to be granted only in the most exceptional circumstances. But this is an exceptional case … the relief which is now sought is essential to enable [the plaintiffs] to put right what is a very serious wrong.’

In the second immediate predecessor to Bankers Trust, Mediterranea Raffineria Siciliana Petroli v Mabanath17 the Court of Appeal (Lord Denning MR, Bridge and Templeman LJJ) refused to stay a disclosure order made at first instance against a number of individuals designed to reveal the whereabouts of a fund. The case involved a string of suppliers and buyers of a cargo of gas oil. The cargo was delivered to the ultimate purchaser which paid its immediate supplier, a Panamanian company. The original seller received nothing and so sought to follow the money to discover what had happened to it. There was some suggestion that it was held in a bank in Geneva. Orders had been made to freeze the money and for discovery as to its whereabouts and as to the control of the Panamanian company itself. These orders did not produce the required information. Thus a further order was made against various deponents, who appear to have been involved as companies (and associated individuals) who had indemnified the Panamanian company in respect of the cargo. The Court of Appeal upheld that order, on the basis that the applicants had a case to ‘follow the money’ (Lord Denning MR) and the order would be an

15 Unreported, 26 May 1978 at pp 2F to 3A of the transcript. 16 The question of whether the order was an unjustified interference in the sovereignty of the overseas jurisdictions in question does not seem to have been considered (though it was fully so in the later case of Mackinnon v Donaldson, Lufkin and Jenrette, below). See also Ch 14. 17 Unreported, 1 December 1978, transcript available via Westlaw.

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Chapter 5  Full information to assist the victim of fraud: Bankers Trust

effective way to ascertain where the money had gone. As Lord Justice Templeman put it, ‘a court of equality has never hesitated to use the strongest powers to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears, by the time the action comes to trial, equity will have been invoked in vain.’ He added that this is ‘why orders of this sort were made long before the recent orders for discovery … to see that the stable door is locked before the horse has gone’. This reference to recent orders for discovery may well have been a reference back to Norwich Pharmacal and the cases described at Chapter 5.1 above. In the third predecessor case, A  v C,18 the plaintiffs had obtained a Mareva injunction against five defendants who, they claimed, had been the perpetrators of a fraud. In addition, they had obtained an injunction on proprietary grounds restraining those five defendants as well as a defendant bank from disposing of a certain sum held on account at the bank. Finally, they had obtained an order for disclosure from all defendants as to the amounts held in the bank and/or the whereabouts of the sum if it was no longer there. The disclosure orders had been discharged but the court was asked again to restore them. Mr Justice Robert Goff considered that where there was a tracing claim, there was a basis for an injunction and also, on the basis of the two earlier cases referred to above (Mediterranea Raffiniera being Court of Appeal), that disclosure should be ordered to determine the whereabouts of the property. He also considered that disclosure could be ordered in support of a Mareva injunction to ensure that the injunction achieved its objective. In A  v C  Robert Goff J  cited the all-important passage in Meditterranea Raffiniera from the judgment of Templeman LJ to the effect that equity had never hesitated to protect a trust fund, referred to above.

5.4  BANKERS TRUST V SHAPIRA The facts in Bankers Trust v Shapira19 were these. On 20 September 1979, two men presented to the plaintiff bank (Bankers Trust) in New York two cheques, each for half a million dollars, purportedly drawn on a bank in Saudi Arabia and made payable to one of the men. Bankers Trust paid over the total of one million dollars and, on their instructions, credited certain sums to accounts of the two men at the London branch of another bank. It transpired that the cheques were forgeries, which Bankers Trust should have noticed, and, accordingly, they reimbursed the bank in Saudi Arabia. Shortly thereafter, Bankers Trust commenced proceedings in the English High Court against the two individuals (who were outside the jurisdiction) and against the other bank. It is not clear whether the bank was a defendant other than for tracing purposes. A  Mareva injunction was sought and obtained purporting to freeze the monies held at the defendant bank.20 At 18 [1981] QB 956 19 [1980] 1 WLR 1274. 20 Although not entirely clear from the judgments, this was probably not an injunction against the bank itself but an injunction against the substantive defendants which would impact upon the bank by virtue of notice.

34

Bankers Trust v Shapira

the same time, an order was sought, but refused at first instance by Mr Justice Mustill, requiring disclosure by the bank of: (i) all correspondence between the two individuals and the bank relating to any account in either of their names; (ii) all cheques drawn on such accounts; and (iii) all other internal documents (eg  transfer applications) relating to any account held in the names of either individual from 20 September 1979 onwards. Before examining the reasoning given by the Court of Appeal (Lord Denning MR, Waller and Dunn LJJ), it is worth reflecting on the account given of Mustill J’s grounds for rejecting the application for disclosure.21 He appears to have been particularly concerned by two things: first, that service had not been effected on the principal defendants (the anticipated account holders at the defendant bank); and, secondly, that the judge could not see that the disclosure was necessary to prevent injustice, taking the view that the ‘money would have vanished long since’ and that accordingly the disclosure sought would ‘unnecessarily put at risk that confidentiality which is an essential part of banking.’ It is perhaps not surprising that, in their grounds of appeal, Bankers Trust challenged the fact that by requiring the individual fraudsters to be served as a pre-requisite this was giving them, in effect, even more time to cover their tracks and make it difficult if not impossible to trace the fraudulently obtained monies. As far as the threat posed to the relationship between bank and customer and the duty of confidence, this seemed to undervalue the point established in the previous authorities that where a tracing claim was being pursued, early disclosure was desirable. The leading judgment in the Court of Appeal was given by Lord Denning. All three of the preceding authorities reviewed at Chapter 5.3 above were drawn to the Court of Appeal’s attention and referred to by Lord Denning. The remainder of Lord Denning’s judgment is probably the most significant of any since Norwich Pharmacal itself six years earlier and represents a watershed in the expansion of the jurisdiction (bearing in mind that Lord Denning had resisted the development in Norwich Pharmacal at the Court of Appeal stage). In Bankers Trust, Lord Denning said this: ‘Having heard all that has been said, it seems to me that Mustill J. was too hesitant in this matter. In order to enable justice to be done – in order to enable these funds to be traced – it is a very important part of the court’s armoury to be able to order discovery. The powers in this regard, and the extent to which they have gone, were exemplified in [Norwich Pharmacal]. The customs authorities were perfectly innocent: but they had to disclose the names of infringers of patents whose goods had passed through their hands.’22

Lord Denning then set out the ‘duty to assist’ passage in Lord Reid’s judgment in Norwich Pharmacal and then continued: ‘So here the … Bank incur no personal liability: but they got mixed up, through no fault of their own, in the tortious or wrongful acts of these two men: and they come under a duty to assist Bankers Trust by giving them and the court 21 The judgement of Mustill J is itself unreported. It is not clear what authorities were drawn to the attention of the judge. 22 [1980] 1 WLR 1274 at 1282.

35

Chapter 5  Full information to assist the victim of fraud: Bankers Trust full information and disclosing the identity of the wrongdoers. In this case the particular point is ‘full information.’… I think the new jurisdiction – already exercised in the three unreported cases – should be affirmed by this court.’23

Whether he intended to do so or not is unclear, but in his judgment Lord Denning seems to be elevating Lord Reid’s duty to assist reference over and above the principles and reasoning given elsewhere by the House of Lords in Norwich Pharmacal. He also picks upon the words ‘full information’ and makes the point that the duty is to provide more than simply basic information, but everything which could be relevant to the specific needs of a claimant who is looking to trace fraudulently obtained assets. Given that the case was about discovery in an already existing substantive action, it could be argued that this was nothing more than a wide and early form of disclosure. However, the ‘duty to assist’ point and the clearly enunciated circumstances in which a Bank’s duty of confidence to its customer can be overridden appears to have set up the basis for a stand-alone form of jurisdiction: a new branch of Norwich Pharmacal which would in time develop in its own right. Lord Justice Waller gave a concurring judgment in which he stressed that ‘the sooner that steps are taken to try and trace where [the money] is the better.’ In commenting on the breadth of the order, he said that: ‘in my opinion, an order of that breadth is completely justified in a case of this sort because, unless there is the fullest possible information, the difficulties of tracing the funds will be well-nigh impossible.’24

5.5  THE SCOPE OF BANKERS TRUST ORDERS The nature of and limits to the Bankers Trust jurisdiction were later considered by Mr Justice Hoffmann in Arab Monetary Fund v Hashim (No  5).25 In that case, Hoffmann J appeared to apply the brakes in terms of the broad direction in which the development had been travelling. The case itself was another involving allegations of embezzlement and the plaintiff had brought proceedings to recover the assets allegedly misappropriated. During the course of the proceedings the plaintiff applied for an order permitting inspection of all documents in the possession of certain US attorneys based in London relating to the effects of the first defendant, his wife and family and for disclosure of the nature, location and value of any assets presently or formerly held by four named entities believed to be connected to the first defendant. Hoffmann J dismissed the application on the basis the plaintiff had not shown that the information sought might lead to the location or preservation of assets to which the plaintiff was making a proprietary claim and also on the basis that the terms of the order sought was too wide. He

23 [1980] 1 WLR 1274 at 1282. 24 [1980] 1 WLR 1274 at 1283. 25 [1992] 2 All ER 911.

36

The scope of Bankers Trust orders

said that any order must be more restricted than a request to an actual party for general discovery. Hoffmann J addressed head on the restriction he sought to place on Lord Reid’s reference to ‘full information’ which Lord Denning had, in turn, highlighted so pointedly in Bankers Trust. In relation to the rationale for the Bankers Trust jurisdiction, he dealt with the issue thus: ‘What are the limits of the Bankers Trust jurisdiction? They must, I think, be deduced from the reasoning upon which that jurisdiction, like the Norwich Pharmacal jurisdiction, is distinguished form the ‘mere witness’ rule. It rests upon the proposition that unless the assets in question can be located and secured, the ultimate determination of ownership of those assets may be frustrated by their removal or dissipation and there will be no point in calling on the third party at trial to produce the required documents or give the requested information. In my judgment, therefore, the first principle of the Bankers Trust case is that the plaintiff must demonstrate a real prospect that the information may lead to the location or preservation of assets to which he is making the proprietary claim … In Bankers Trust itself Mustill J refused an order because the fraud had happened 8 months earlier and he thought that any money … would long since have vanished.’

Hoffmann J then proceeded to reason why he felt that the plaintiff’s efforts to obtain information were likely to be too late for practical purposes. They had already received some information, but that had not shed any useful light, and Hoffmann J was not prepared to go any further. He also concluded that the scope of the discovery requested was too broad. He cited his own words in Mackinnon v Donaldson, Lufkin and Jenrette,26 a case dealing with the extra-territorial impact of (in particular) a subpoena duces tecum, to the effect that the Norwich Pharmacal order creates: ‘a general duty imposed on persons who become ‘mixed up’ in tortious acts to produce evidence and documents before trial comparable with the general duty on all persons who have relevant knowledge or documents to give evidence at the trial.’

This observation led Hoffmann J to the conclusion that a third party was entitled to the same specificity in the documents he is asked to produce as would be the case if served with a subpoena duces tecum.27 He also added that in respect of additional information this was required to be ‘directed specifically to ascertaining the whereabouts of the assets in question’ and was in this instance too wide-ranging. Further consideration was given to this issue in Marc Rich v Krasner,28 in the Court of Appeal (Morritt, Clarke LJJ and Sir Christopher Staughton). The facts 26 [1986] Ch 482, addressed in Ch 14.3 below. 27 The applicable rules are described in Ch 15.3. The availability of third party disclosure, made possible move generally by the introduction of the CPR, is also described in Ch 15.2. 28 [1999]  EWCA  Civ 581. It is said in C  Hollander Documentary Evidence (13th edition, 2018) at 4–35 that the judgment of Hoffmann J  in Arab Monetary Fund on specificity was disapproved in Panayioutou v Sony Music [1994] Ch  142. However, whilst Nicholls VC did distinguish between the subpoena duces tecum and Norwich Pharmacal relief, this was for a different purpose. Arab Monetary Fund was not cited.

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Chapter 5  Full information to assist the victim of fraud: Bankers Trust

of the case were complicated and involved serious allegations of conspiracy to defraud against a number of former Marc Rich employees who were accused of having devised and implemented a scheme to divert profits away from their employer. The Bankers Trust issue which arose concerned relief being sought against a firm of solicitors, Rakisons. They had acted as solicitors for the principal defendant, Mr Krasner. Rakisons themselves made no objection to the order made at first instance, but Mr Krasner objected on two grounds. First, he contended that the order went beyond what was appropriate in seeking early disclosure of documents to enable the plaintiffs to prove their case as opposed to production of documents to assist in the tracing of their assets. Second, he raised the specificity argument founded on Hoffmann J’s judgment in Arab Monetary Fund. Morritt LJ gave the leading judgment. In relation to the first argument it seems clear from his judgment that the particular disclosure objected to was information relating to the ownership and control of all the various entities highlighted by the plaintiffs and that if ownership or control by Mr Krasner could be demonstrated that would be relevant to any legal or equitable entitlement to trace assets into their hands. In this sense, it was correct that this was information which would go not so much to preservations of assets, but more to establishing the use of a web of companies by the defendant as part of his alleged conspiracy. Morritt LJ found that this information was equally relevant to what he called ‘the prompt protection of misapplied assets as they pass from one corporate vehicle to another’. In support of that endeavour Morritt LJ considered that ‘if the remedy is to have any worthwhile effect the documents to be produced must, in the circumstance of a case such as this, be widely defined.’29 As to the question of the degree of specificity, Morritt LJ went back to Lord Reid’s use of the term ‘full information’ in Norwich Pharmacal itself, and the elevation given to it by Lord Denning in Bankers Trust. He said of Hoffmann J’s judgment in Arab Monetary Fund: ‘I do not understand Hoffmann J to be stating that a Bankers Trust order must be as specific as a subpoena in all cases, and would respectfully disagree with him if he had. No doubt the degree of specificity required will differ according to the facts of each case and those facts will include the relationship between the person against whom the order is sought and the other persons against whom the claims are made. The court must … seek to achieve a just balance between those who seek such orders and those against whom they are sought. In striking such balance it is necessary to consider the onerousness of compliance with the order sought without being tied down by rules relating to subpoenas.’30

Following the Court of Appeal decision in Marc Rich, it has been settled that broad disclosure orders can be made, where appropriate. An interesting illustration is given by the more recent case of Aoot Kalmneft v Denton Wilde Sapte,31 described in further detail in Chapter 6.2.3. Judge McGonigal (in the Leeds Mercantile Court) considered the restrictive approach suggested by Hoffmann J  in Arab

29 Marc Rich v Krasner [1999] EWCA Civ 581 at p 15. 30 Marc Rich v Krasner [1999] EWCA Civ 581 at p 14. 31 [1981] 1 QB 956.

38

Tracing claims and personal claims

Monetary Fund and (though Marc Rich does not appear to have been cited to him) concluded: ‘Of course, fraudsters do not normally disclose the whole picture to their bankers of advisers. Bits of information are revealed to the extent necessary because fuller disclosure would cause respectable bankers and professional advisers to refuse to assist. In my experience the complete picture is often only revealed when the information given to a number of people is obtained so that the wider picture can be reconstructed. In approaching the ‘first principle’ suggested by Mr Justice Hoffmann the Court must, in my view, take a realistic view of how frauds are conducted and be satisfied that there is a real prospect that the information sought may assist in locating and preserving assets by helping build up a complete picture of what was being done.’

The ‘first principle’ to which he was referring was Hoffmann J’s reference to the need for a real prospect of locating or preserving assets. The requirement for specificity was resurrected in the context of extraterritoriality in the case of Rusal v HSBC32 where Mr Justice Tugendhat referred to both Arab Monetary Fund and Marc Rich. He concluded that if he had been minded to make an order (he had refused on a variety of other grounds) he would have had to consider the question of specificity. He highlighted that the concept had originated in Mackinnon.

5.6  TRACING CLAIMS AND PERSONAL CLAIMS Most of the leading cases dealing with Bankers Trust orders have involved proprietary claims in which the applicant33 has been seeking to trace assets.34 On occasions, this category of relief has been described in terms limited to such situations. Thus, for example, in Arab Monetary Fund, Hoffmann J described the limits of the Bankers Trust jurisdiction in terms which emphasised a proprietary origin, stating that ‘[the jurisdiction] rests upon the proposition that unless the assets in question can be located and secured, the ultimate determination of ownership of those assets may be frustrated.’35 Similarly, in Marc Rich, Morritt LJ explained that ‘the purpose of the jurisdiction is to enable the applicant to obtain the information needed to trace and protect the assets he claims.’36 As explained below, there is a firm basis for allowing relief without a proprietary claim in at least one context, involving freezing injunctions. This may be of particular significance in the case of fraud, the typical context for Bankers Trust relief. Beyond this, a basis for granting relief without a proprietary 32 [2011] EWHC 404 See Ch 14.3 below. 33 In Miles Smith v Barclays Bank Plc [2017] EWHC 3338 (Ch), the court held that where a party had a proprietary claim to monies in a third party’s bank account, it was entitled to a Bankers Trust order, even though it was not the ultimate beneficial owner of the monies as it was holding the monies on trust for another. 34 In Murphy v Murphy [1999] 1 WLR 282, Neuberger J sought to distinguish between relief granted on Norwich Pharmacal grounds and relief in respect of proprietary claims. He suggested that the two may have been conflated in some passages in Bankers Trust. 35 [1992] 2 All ER 911 at 918e. 36 Marc Rich v Krasner [1999] EWCA Civ 581 at p 14.

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Chapter 5  Full information to assist the victim of fraud: Bankers Trust

claim might exist either as a development of the Bankers Trust line of authority or as a parallel application of Norwich Pharmacal. There is overseas authority to support such an approach, though the point does not appear to have been considered in any reported decisions in England and Wales.

5.6.1  Freezing injunctions In one of the early cases, A v C,37 Robert Goff J gave two grounds for his decision to allow disclosure. As well as allowing disclosure on the basis of ‘ample authority’ dealing with claims seeking to trace property, he also considered that relief should be available in support of the (non-proprietary) Mareva injunction against the substantive defendant in order to secure the objective of that injunction and to prevent abuse. He concluded that third party disclosure was necessary for the proper exercise of the Mareva jurisdiction. This second ground for ordering disclosure was analysed in A J Bekhor & Co Ltd v Bilton.38 It was treated as an example of the broader power to make all orders necessary to ensure that the exercise of the Mareva jurisdiction was effective.39 This principle is discussed further in Chapter 15.5 below. As described there, recent developments suggest that it is not necessary for there to be a freezing injunction and that a disclosure order can be granted more generally where this is just and convenient to ensure the effectiveness of another order. The principle outlined above has been applied in the context of third party disclosure from banks in Guernsey in Seed International v Tracey.40 The Court of Appeal there rejected the submission that the jurisdiction was available only for proprietary claims.41 The governing principle was said to be prevention of abuse of the freezing injunction, an expression derived from A v C. This would be more easily established where there was a proprietary claim rather than simply a personal claim. The principles established in the Seed case were applied subsequently in Guernsey in Garnet Investments v BNP Paribas42 where the Royal Court, in the exercise of its discretion, refused to order disclosure from a bank in circumstances where a proprietary claim had not been established. The courts’ power to grant an order for disclosure in support of a freezing order (or a contemplated) freezing order is now set out in CPR 25.1(1)(g).

37 [1981] 1 QB 956. 38 [1981] QB  923. Since cited with approval in, for example, Maclaine Watson v International Tin Council [1989] 1 Ch 286. 39 For a further example see Republic of Haiti v Jean-Claude Duvalier and Others (CA) [1989] ECC 54 and the subsequent decision at [1990] QB 202 (CA), after the substantive defendants had been served. In the first case, the Court of Appeal ordered disclosure against solicitors and, though concluding that there was ample evidence that the claim was a tracing claim, queried whether this was a necessary ingredient (para 9). In the latter case, apparently after disclosure by the solicitors, the Court of Appeal concluded on the basis of further evidence that the claim, which was governed by French law, was not a tracing claim, though it might lead to an assertion of ownership. Disclosure was ordered, though the respondents at this stage appear to have been the substantive defendants. For this purpose, the existence of a tracing claim was not essential, but it was relevant to discretion (at p 213H). 40 2003-04 GLR 98. 41 Paragraph 35 (in reliance upon Republic of Haiti v Duvalier, above) and para 44. 42 2007-08 GLR 73.

40

Tracing claims and personal claims

The wide scope of this power was demonstrated in JSC  Mezhdunarodniy Promyshlenniy Bank v Pugachev43 where the Court of Appeal held that it had jurisdiction to order disclosure of detailed information relating to discretionary trusts of which the defendant was a beneficiary in circumstances were there was ‘some credible material’ to support a potential application by the claimant for a freezing injunction over the trusts’ assets. It should also be noted that this power of disclosure (as to the whereabouts of assets) is available as a stand-alone remedy – as a pre-cursor to a freezing order, or otherwise.

5.6.2  Beyond proprietary claims In subsequent chapters, it will be seen how Norwich Pharmacal principles have been extended, such that it is possible to obtain wide disclosure in appropriate cases. The Bankers Trust jurisdiction originated quite separately, developing from equitable concepts relating to the preservation of property rights at a time when Norwich Pharmacal relief was in its infancy and narrowly constrained to the provision of identities. Those limits which applied to its use in its infancy no longer apply and thus there should be no reason in principle why relief should not be granted even in the absence of a proprietary claim. That said, the relief typically granted in a Bankers Trust case is far reaching and such an intrusion will rarely be justifiable, absent a proprietary claim. There may, however, be circumstances in which the relief would be appropriate.44 There is support for granting relief even where there is no proprietary claim in Koo Golden East Mongolia v Bank of Nova Scotia45 where, having concluded that there was no tracing claim, the Court of Appeal was nonetheless prepared in principle to grant relief under Norwich Pharmacal against the bank maintaining an account which ‘does not hold the proceeds of sale but (it appears) the quantity of gold which, in one sense at least, represents the refined gold’. This view may be supported by at least one overseas authority. In A  Co v B Co,46 the Hong Kong Court of First Instance upheld a disclosure order against a bank notwithstanding the absence of a proprietary claim. The case concerned suspected bribes or secret commissions paid to the substantive defendant and companies associated with him. Disclosure was sought from a bank as to accounts through which those secret commissions may well have passed. The judge, Ma J, granted relief, reasoning that Norwich Pharmacal relief was available beyond identities and would be granted to assist a plaintiff in investigating payments into and out of a bank account, following Bankers Trust. It was argued that there was no tracing claim. However, the judge did not regard this as determinative, noting 43 [2015] EWCA Civ 139. 44 In the first edition of this book, it was said that one obvious example was the claim to recover a bribe, since such a claim had recently been held not to be proprietary: Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347. The opposite conclusion has since been reached by the Supreme Court in FHR European Ventures v Cedar Capital Partners LLC [2014] UKSC 45, meaning that such a claim can now support Bankers Trust relief even on conventional grounds. 45 [2007] EWCA Civ 1443. See para 37 of the judgment of Sir Anthony Clarke MR (with whom the other members of the court agreed). 46 [2002] 3 HKLRD 111. See generally Ch 7.6 on the wrongdoing threshold in Hong Kong.

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Chapter 5  Full information to assist the victim of fraud: Bankers Trust

that there was no such claim in Norwich Pharmacal itself. The more important point was the case as to wrongdoing. This illustrates an approach under which Norwich Pharmacal can be used to broaden Bankers Trust beyond its purely proprietary origins. Further support can be derived from Omar v Omar.47 The case itself principally concerned the question of the extent to which information and documents produced by a bank pursuant to a discovery order granted in respect of a tracing claim could be used for allied purposes. Giving his judgment, Mr Justice Jacob said: ‘It is difficult to imagine a situation where there can be a tracing claim in respect of money fraudulently or dishonestly taken and not also a personal claim against those responsible. It is curious that the question of whether Bankers Trust disclosure can be used not only the tracing claim but also an intimately related personal claim has not been expressly considered in the 14 years since the Bankers Trust case was decided.’

On the facts of the case in Omar v Omar, the personal claims came after the original discovery had been given in support of the tracing claims. The judge commented: ‘In the present case the use of the discovered documents for a personal claim seem to me to be entirely legitimate purpose – within the ‘broad purpose’ of the original discovery … the object of the personal claim, as of the proprietary claim, is to see the estate put right.’

The fact that the judge was willing to allow discovery to be used for the personal claims tends to support the view that there should be no absolute distinction between the two. Where the court is considering disclosure in relation to a personal claim, the question should be one of discretion rather than being barred as a matter of jurisdiction.

47 [1995] 1 WLR 1428.

42

6

Extending Norwich Pharmacal

As explained in Chapter 4, the original Norwich Pharmacal case dealt with discovery of the identity of an alleged wrongdoer where this information was needed to enable the applicant to bring proceedings. The scope of that jurisdiction has been developed since and (leaving to one side the Bankers Trust tracing situation, as discussed in Chapter 5) there have been at least three main1 incremental developments, followed by what appears to be a transformation followed by a shift in emphasis towards greater flexibility.2 In chronological terms, the first of the incremental developments was the recognition that relief would be granted even against a wrongdoer and even where there was no intention to bring proceedings against the party identified. This is addressed in Chapter 7.1 (as regards the wrongdoer) and Chapter 9.2 (as regards the objective of the application). The second incremental development was the extension to allow discovery to assist in post-judgment enforcement. Most fundamentally, the third involved discovery of the ‘missing piece of the jigsaw’ required for proceedings, based in part upon the highly significant case of P v T3 and related issues concerning the standard of proof required in relation to wrongdoing. These two developments are addressed in this chapter. The more recent shift in emphasis has involved greater emphasis upon flexibility, involving recognition that relief is not restricted to specific areas. Rather, it is available wherever the thresholds of wrongdoing and involvement are satisfied and where the Court exercises its discretion after balancing the 1

2

3

A minor extension by analogy was envisaged in Douihech v Findlay [1990] 1 WLR 269 which was a case concerning inspection of property (a cello) in the possession and ownership of a third party. RSC Order 29, rule 2 did not permit inspection against a non-party. The deputy judge considered that Norwich Pharmacal might apply by analogy where the third party was mixed up in the wrongdoing, though this was not established on the facts. This would appear however to have been superseded by what is now CPR 25.1(1)(j) and the power in the Senior Courts Act 1981, s 34 (also the source of third party disclosure), as amended following the Civil Procedure Act 1997. This makes it possible for the Court to make such orders against any third party (see for instance Sayers v Smithkline Beecham [2004] EWHC 1098 (QB), where it was exercised against an expert). There has been at least one attempt to establish a broader residual jurisdiction to ordering disclosure where ‘fair just and appropriate’ though this does not appear to have been adopted more generally: Nolan v Walsh [2011] EWHC 535 (Comm) Teare J, doubted in Various Claimants v News Group Newspapers [2013] EWHC 2119 (Ch) by Mann J at para 59. [1997] 1 WLR 1309.

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Chapter 6  Extending Norwich Pharmacal

competing interests. This approach can be traced back to the House of Lords in Ashworth but was made plain in the more recent Mohamed decision.4 This advance is also addressed in this chapter, at 6.3 below. Notwithstanding this flexibility, the relief remains fairly tightly constrained and, whilst there have been exceptional cases where broad relief was granted, Norwich Pharmacal is often described as narrow in scope.5 However, the reality is that its flexibility means that the scope of the jurisdiction can never be marginal or insignificant.

6.1  POST-JUDGMENT ENFORCEMENT In the 1993 case of Mercantile Group (Europe) AG v Aiyela,6 the Court of Appeal recognised that relief should be available on Norwich Pharmacal principles to assist in enforcing a judgment. Chief Aiyela, a man of influence in Nigeria, had been accused of absconding with money advanced to him to pay for a consignment of oil that he had negotiated. His wife had been joined to the proceedings on the grounds that she had received some of the money. The proceedings were settled on certain undertakings to repay the money and, on that basis, causes of action against Mrs Aiyela were abandoned. The money was not repaid. Judgment was therefore entered against Chief Aiyela in accordance with the terms of the compromise. In the course of attempts to enforce that judgment, orders were made requiring disclosure of financial information by Mrs Aiyela relating both to herself and to her husband. It was accepted that there were triable issues as to whether the money in Mrs Aiyela’s accounts had emanated from her husband and, accordingly, that there could not be any challenge to the grant of the orders, provided only that the jurisdiction existed. It was argued that there was no jurisdiction because of the substantive settlement which abandoned all causes of action. Hoffmann LJ considered that, in view of the compromise, the issue was whether the Court could grant discovery against Mrs Aiyela in support of the undisputed post-judgment Mareva that had been granted against her husband. A broad basis for discovery was provided by section 37(1) of the Supreme Court Act 1981.7 He reasoned8 that the effect of the Norwich Pharmacal decision, as expounded in other cases, was that jurisdiction to order discovery exists

4 See Ashworth Hospital Authority v MGN  [2002]  UKHL  29, and R  (on the application of Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin). 5 Contrast the relative extremes of the relief granted in the Mohamed case with the more narrowly focused Ramilos v Buyanovsky [2016] EWHC 3175 (Comm). 6 [1994] QB 366. 7 Now re-named Senior Courts Act 1981. This provision provides the basis for an injunction where ‘just and convenient’. As to the basis of jurisdiction, see further 15.6 below. 8 His reasoning had been foreshadowed to a certain extent by his earlier judgments in Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911 and Mackinnon v Donaldson, Lufkin and Jenrette [1986] Ch 482.

44

Missing piece of the jigsaw

as against a third party9 where: (a) the third party has been mixed up in the transaction; and (b) discovery does not offend against the mere witness principle. Although Norwich Pharmacal was a case about the identity of the tortfeasor, it had been applied in other scenarios where the same two conditions were fulfilled, citing Bankers Trust and A v C. Applying those two conditions to the case before him, he concluded that the mere witness rule had no application since the trial, if any, had by definition already occurred. On the facts, there was prima facie evidence that Mrs Aiyela had become mixed up in the arrangements made by her husband to defeat execution and thus there was jurisdiction to make the order. The remaining test would be whether the order was just and convenient, but that was part of the discretion (and had accordingly been conceded). He also granted a freezing injunction against Mrs Aiyela.10 Steyn LJ and Sir Thomas Bingham MR both agreed, with Steyn LJ stating that there was jurisdiction ‘on the analogy of Norwich Pharmacal’. At first instance, Hobhouse J  had similarly characterised the situation as analogous to Norwich Pharmacal.11 More recent examples are provided in Chapter 13.6 below. Particular issues arising in connection with the tests of wrongdoing and in this context are addressed in Chapter 7.3. below. As also described there, some doubt has been expressed as to whether the postjudgment enforcement cases are properly regarded as applications of Norwich Pharmacal, rather than being an analogy.

6.2  MISSING PIECE OF THE JIGSAW There is now a line of established authority dealing with disclosure of what has been termed ‘the missing piece of the jigsaw’. This refers to a situation in which the identity of the intended defendant is known but something else is still ‘missing’, without which a trial may not be possible. These cases have been put on the basis that disclosure from the respondent is the appropriate way of filling that gap, without which, again, the trial may never happen. The principal line of authority on this topic is described below. It is closely related to developments in two other areas. The first and most important is the extent to which relief of any sort (even identification) can be obtained where there is only an arguable case. The second is the extent to which the relief can ever involve disclosure of documents rather than an identity, as envisaged by the original main line of authority. There have been very few missing piece cases and the most recent authority, Ramilos v Buyanovsky, raises an additional obstacle.

9

Hoffmann LJ was apparently using this term to mean anyone other than the wrongdoers whether or not relief could be obtained against them by injunction (cf Norwich Pharmacal itself in which the focus had been upon the sub-category of third party who would not be before the court absent a valid action for discovery). 10 This order was made under the so-called Chabra jurisdiction against a third party, described further in Ch 8.2 fn 9 below. 11 [1993] FSR 745.

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Chapter 6  Extending Norwich Pharmacal

6.2.1  P v T The case of P  v T12 concerned an employee who had been dismissed on the basis of allegations of gross misconduct made by a third party. He was told by his employer only that those allegations related to his dealings with external contractors and he was not told the identity of the person who had made the allegations. He was thus unable to defend himself. The company admitted that the dismissal had been unfair, but refused to re-engage him notwithstanding an order to that effect from the Industrial Tribunal. The former employee brought proceedings for breach of contract and conspiracy. He also applied for discovery of the allegations and the identity of the complainant and brought a motion seeking this information forthwith. Sir Richard Scott VC concluded that discovery would not be granted in the normal course since the conspiracy claim was bad and the contractual claim had been admitted, the only surviving issue being quantum. Thus disclosure was not relevant to any live issue. Nonetheless, he allowed discovery on the basis of Norwich Pharmacal. There might be an action for defamation (or malicious falsehood) against the informant, though this could not be known for certain until the details were provided: ‘it is in question whether a tort has been committed’.13 In the meantime, the plaintiff was confident that he had committed no act constituting gross misconduct. The judge said that the purpose of any order would be to enable justice to be done and he considered that the individual was in an intolerable position, with no means of meeting the allegations absent disclosure.14 15

6.2.2  Axa Equity & Law Life Assurance v National Westminster Bank plc In this 1998 case, investors had brought a claim against the auditing firm, Coopers & Lybrand in negligence and under section 150 of the Financial Services Act 1986 (false statements) relating to audited accounts and listing particulars which had been relied upon by the investors when purchasing shares in a company, Resort Hotels plc. By separate writ, an action was then brought against the company and its banks16 for discovery to assist in the case against Coopers. Coopers intervened and resisted the application for discovery against the other defendant respondents.17 The investors’ solicitors provided an affidavit saying that they were unable to pursue Coopers because of a lack of information.

12 [1997] 1 WLR 1309. 13 [1997] 1 WLR 1309 at 1318. 14 It is important to note that a pleading in defamation is subject to particular requirements for specificity. See, now, Practice Direction 53. 15 Similar consideration applied in Sarayiah v Williams (unreported, 12 October 2017, QBD). 16 A former managing director and his solicitors had also been respondents to the original action and application but the matter had not been pursued against them on appeal. 17 Rimer J at first instance had noted the unusual procedural position given that none of the defendants objected. However, since the order affected a third party, he acknowledged that Coopers should be heard and that its views might be relevant on the exercise of discretion.

46

Missing piece of the jigsaw

At first instance,18 Mr Justice Rimer refused relief. He said: ‘The Norwich Pharmacal case itself is, therefore, a long way from the present one. The first main difference is that in that case the plaintiffs could not sue the infringers because they did not know who they were, and all they wanted was names and addresses. Here the plaintiffs not only know who the alleged tortfeasors are, they have even issued a writ against them. The other main difference is that what the plaintiffs want from the five defendants is discovery in the nature of documentary evidence which will enable them to assess whether they have a claim against Coopers in tort and, if so, to plead it. Norwich Pharmacal provides no authority for the making of any such order.’19

The judge analysed the authorities, noting that the defendants were ‘in principle, compellable to give evidence at any trial’ and thus the discovery sought would infringe the mere witness rule. He considered that the main line of authority required that a prima facie case of wrongdoing should be established and, whilst P v T did not satisfy that test, it was a ‘fairly remarkable case’ which should be regarded as a product of the ‘special nature of the facts’. It did not establish (and was not intended to establish) a new general principle.20 The case of Societe Romanaise de la Chaussure SA v British Shoe Corporation21 had been cited to the judge as authority (essentially the only authority) for the proposition that relief could extend beyond an identity. There, in an infringement context, Mr Justice Millett had ordered disclosure both of the identity of the overseas supplier plus ‘all information necessary to enable the plaintiff to decide whether it is worth suing the wrongdoer or not’. This was a reference to information about the stock levels and the number of products (shoes) that were on order. In Axa, Rimer J distinguished this case as one dealing with information to enable a plaintiff with a good cause of action to protect its interests, rather than one which allowed what he termed the ‘fishing’ discovery being sought. The Axa case was decided on a different point in the Court of Appeal.22 Morritt LJ (with whom Brooke and May LJJ agreed) considered that the plaintiffs already had enough to plead a case, despite what their solicitor had said. Facts alone needed to be pleaded, not evidence. There was sufficient therefore properly to plead a cause of action and to proceed to discovery. Accordingly, the mere witness rule would preclude discovery under Norwich Pharmacal: there could be a trial and the various parties could be required to give evidence or provide documents by subpoena duces tecum.23 Nonetheless, the missing piece of the jigsaw had been raised in argument: whether disclosure could be ordered to reveal ‘one fact crucial to the proper allegation’ of liability. Morritt LJ found this unnecessary to determine (having concluded that the cause of action could be pleaded) but went out of his way to note that he saw much force in the submission that disclosure should be permitted in such a case. This would be consistent with the mere witness rule 18 [1998] PNLR 433. 19 [1998] PNLR 433 at 443. 20 [1998] PNLR 433 at 454 and 456-457. 21 [1991] FSR 1. This case is considered further in Ch 10.1.2 below. 22 [1998] CLC 1177. 23 In addition, the Court of Appeal concluded that the involvement threshold was not met.

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Chapter 6  Extending Norwich Pharmacal

since ‘without the ascertainment of the missing fact there would be no trial’. It would also give meaning to Lord Reid’s reference in Norwich Pharmacal to the duty to provide ‘full information’.24

6.2.3  AOOT Kalmneft v Denton Wilde Sapte The next significant case was Kalmneft, a decision of His Honour Judge McGonigal in the Leeds Mercantile Court.25 This case has been cited subsequently with apparent approval.26 The application was for documents held by lawyers from a time when they had acted as lawyers for Amerco International Oil Ltd, a Guernsey company that had since been struck off the register. The lawyers had been involved in incorporating Amerco. The circumstances giving rise to the application were complicated. The applicants, Kalmneft had initially supplied crude oil to Amerco for onwards supply to Glencore. The arrangements were subsequently replaced with equivalent arrangements involving another company, Briarwise, in place of Amerco. Ultimately, Briarwise failed to pay Kalmneft and further shipments were suspended. It transpired that Glencore had been pre-paying Briarwise for the crude oil under an agreement to which Kalmneft was, with Briarwise, purportedly a party. Similar arrangements had existed previously with Amerco, the agreement having been witnessed by a partner at the law firm. Glencore brought an arbitration against Kalmneft to recover the pre-payment, Briarwise having been put into liquidation. From various disclosures, including information arising from the liquidation, it appeared that over $10 million of the money pre-paid by Glencore to Amerco and Briarwise had not been paid over to Kalmneft. It also appeared that large payments had been made to Mr Daginov, who had been the former Vice President of Kalmneft and who appeared to have been involved in giving instructions to the lawyers on behalf of Amerco and to have been a shareholder. In those circumstances, Kalmneft sought disclosure from the law firm in relation to Amerco and Mr Daginov. It appears that the disclosure was sought to enable them to bring proceedings against those responsible for diverting the money.27 The judge granted the disclosure. He identified two lines of authority: Norwich Pharmacal and Bankers Trust, in both of which the same test had been adopted: being ‘mixed up’ in the tortious acts of others. That test was satisfied given the lawyers’ involvement in incorporating Amerco and in witnessing the first prepayment agreement. Under Bankers Trust, he concluded that the prepayments were prima facie held on trust by Amerco for itself and Kalmneft and that the dissipation was therefore in breach of trust. He noted the restrictions on ‘full information’ envisaged in Arab Monetary Fund but observed that ‘fraudsters do not normally 24 25 26 27

48

[1974] AC 133 at 175A. Lord Reid’s words are quoted in the text accompanying Ch 4, fn 10 above. [2002] 1 Lloyd’s Rep 417. Mitsui v Nexen (below) by Mr Justice Lightman. [2002] 1 Lloyd’s Rep 417 at para  21. There was a separate purpose in defending the arbitration proceedings brought by Glencore against Kalmneft, but this was not the basis of the decision.

Missing piece of the jigsaw

disclose the whole picture to their bankers or advisers’ and that the court should take a realistic view. Discovery should be allowed if there is a ‘real prospect that the information sought may assist in locating and preserving assets by helping build up a complete picture of what was being done.’28 He rejected the view that the bank statements already available were sufficient in themselves. The judge then turned to consider Norwich Pharmacal. He concluded that a similar test should apply: ‘a real prospect that the information sought may assist in identifying a defendant’. He said that this ‘extends … to his identification as a wrongdoer’29 and, accordingly, that he could see no reason why the principle of Norwich Pharmacal should not extend to information showing that the unknown individual had committed a wrong. The judge’s conclusions on this aspect appear to have been based upon reasoning from first principles as set out in Norwich Pharmacal itself. It does not appear that Axa was cited to him. The judge’s overall conclusion was that ‘The information held by the solicitors in their documents may not conclusively reveal an alternative defendant to Mr Daginov nor conclusively disclose who received any part of the prepayment monies, but I am satisfied that there is a sufficient prospect that the information they hold will assist Kalmneft in its search for the wrongdoers and the funds paid away by Amerco to justify making the orders sought.’30 This case has since been regarded as dealing with disclosure of a missing piece. However, it appears in fact to be somewhat broader in scope. There is no suggestion that Kalmneft had insufficient information to bring a claim against Mr Daginov. It appears to have been seeking details of the identities of other potential wrongdoers. Beyond that, the relief granted was in substance third party disclosure, rather than a specific order addressed to a particular missing piece.

6.2.4  Carlton v VCI and VDC In this case, in 2003, Carlton Film Distributors intended to bring proceedings against VCI who had been licensed to make and distribute copies of certain films, with limits as to quantity.31 The copies were in fact manufactured by another company, VDC. Carlton suspected that there had been over-production at least in certain periods and thus intended to bring proceedings against VCI for breach of contract and, perhaps, for copyright infringement. Nonetheless, Carlton considered that they did not have sufficient to plead a case and to sign a statement of truth. They had sought information from VCI but had been told that they did not have records of the dates of manufacture. Carlton therefore sought disclosure on Norwich Pharmacal principles against VDC. The judge, Mr Justice Jacob, noted that the case was different from Norwich Pharmacal in that Carlton knew their target. He said that things had moved on since Norwich Pharmacal and the jurisdiction of equity to assist in the attainment of justice had been seen to apply to other kinds of case. He mentioned 28 [2002] 1 Lloyd’s Rep 417 at paras 16-17. 29 [2002] 1 Lloyd’s Rep 417 at para 17. 30 [2002] 1 Lloyd’s Rep at para 18. 31 [2003] EWHC 616.

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Bankers Trust and, in particular, P v T and Axa (but not Kalmneft). He said that P v T showed that the jurisdiction extended to where ‘not every piece of what the claimant needs to plead a case is fully in position’ (referring to the decision that the claimant there should be put in a position to clear his name) and that it showed ‘a good indication of wrongdoing’ would suffice. As to Axa, he adopted the obiter comments of Morritt LJ cited above as to ‘the piece missing from the jigsaw puzzle’. He found that VDC were sufficiently involved and that he should make the order, having weighed the intrusion upon VDC’s affairs. It was submitted that Carlton had enough information to bring proceedings and that they would be able to obtain disclosure in due course (a reference presumably to CPR  31.17). The judge rejected this on the basis that Carlton did not have quite enough to start proceedings: they had ‘strong grounds for suspicion but not enough for a statement of truth or particulars of claim’. He added that the information would make the position absolutely clear and that this was a factor in favour of exercising the discretion to make the order.

6.2.5  Mitsui v Nexen Petroleum The next significant case was Mitsui,32 a decision of Mr Justice Lightman. This case arose out of the sale by the EnCana group an English subsidiary of the Nexen Group, which owned and operated an oil field in the North Sea. Mitsui had been in prior negotiations to acquire the English subsidiary but, at the very last minute, EnCana sold instead to the Nexen Group. Mitsui wished to establish whether this sale had been solicited by EnCana in breach of a prior agreement precluding such solicitation. Mitsui was considering bringing proceedings against the EnCana parent, a Canadian Corporation. To assist in making this decision, it sought disclosure by the subsidiary that had been sold, now re-named Nexen Petroleum UK Limited. The application sought disclosure of fairly broad categories of documents relating to the negotiations.33 Mr Justice Lightman explained that the Norwich Pharmacal jurisdiction had developed from its original form and now extended beyond identification of the wrongdoer to cover situations where the claimant ‘requires disclosure of crucial information in order to be able to bring its claim or where the claimant requires a missing piece of the jigsaw’, citing Axa, Kalmneft and Carlton. The judge also proposed a test of three conditions which must be satisfied for relief, one of which was that ‘a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer’. This formulation has been much applied since.34 The label ‘arguable’ appears to have been intended to encompass not only the scenario of a missing piece of the jigsaw but also P v T and the lowering of the standard of proof more generally.35 Having accepted the principle that relief could be available for the missing piece of the jigsaw, the judge nonetheless rejected the application in the circumstances 32 [2005] EWHC 625. 33 [2005] EWHC 625 at para 12. 34 See, for example, the authorities cited in Ch 2.1, fn 2. 35 See Ch 7.6 below.

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Missing piece of the jigsaw

of the Mitsui case. He did so on the basis of ‘necessity’ and the availability of other avenues, notably pre-action disclosure. The ‘necessity’ aspect of the decision has since been doubted and a lower test of necessity now prevails. This is addressed more fully in Chapter 9.1 below.

6.2.6  Binyan Mohamed The Mohamed36 case was not one involving the missing piece of a jigsaw but appears to have recognised the much broader availability of relief.37 For present purposes, it may be significant that the Divisional Court quoted Mitsui on the availability of relief for the missing piece of the jigsaw, with apparent approval.38

6.2.7  United Company Rusal v HSBC Bank and others This 2011 case was set against the background of a battle between two groups, Rusal and Interros, over control over the Russian company, referred to as Norilsk Nickel, the world’s largest producer of nickel and one of Russia’s largest corporations.39 The key events included the sale by certain Norilsk subsidiaries to Trafigura Beheer NV (Trafigura) of shares in Norilsk itself, seemingly without approval by the Norilsk Board.40 Subsequently, a Norilsk subsidiary had made an offer (by Offering Memorandum) to buy back shares in Norilsk, at a premium to market price. Rusal brought proceedings in Russia seeking to set aside both the Trafigura transaction and the buy-back referred to above. Those proceedings had been rejected on procedural grounds, including (in the case of the claim in respect of the Trafigura transaction) for an absence of ‘documents confirming the fact of concluding of transactions disputed’.41 Rusal had obtained an ex parte injunction in Nevis preventing the subsidiaries from voting the shares (but sought no Norwich Pharmacal relief there). Rusal42 then brought the present application in England against Debevoise & Plimpton LLP, lawyers who had acted for Norilsk Nickel and for Interros. The English application sought disclosure of the documents relating to the Trafigura transaction.43 Rusal also brought discovery applications in the US. The case raised a great many issues concerning the availability of Norwich Pharmacal relief. It was ultimately determined on the basis of necessity. For present purposes, however, it is significant that the judge would otherwise have 36 [2008] EWHC 2048 (Admin). 37 See Ch 6.3.2 below. 38 [2008] EWHC 2048 (Admin) at para 93. 39 [2011] EWHC 404. 40 The judge cited the view of the independent directors that the events were ‘completely alien’ to one with an English or US corporate governance background, involving subsidiaries holding shares in the parent. 41 [2011] EWHC 404 at para 32. 42 And also a Rusal appointed director, Mr Sokov. This application was also dismissed. 43 The relief sought is set out in para 115. Within the fairly broad category specified, it appears that Rusal focused submissions principally upon the transactional documents: para 140.

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been willing to order disclosure, although he would have insisted (in part due to considerations of judicial comity) upon higher specificity.44

6.2.8  Ramilos v Buyanovsky This case concerned a failed application for Norwich Pharmacal and/or Bankers Trust orders seeking responses to 39 questions set out over many pages. At the start of his judgment, Mr Justice Flaux recorded that the application amounted to ‘a request for wide ranging pre-action disclosure and evidence’. The underlying case related to a dispute between two 50% shareholders over the affairs of the Polyplastic group of companies. The claimant sought to justify its request for broad orders on the basis that the relief had developed over time. That submission was developed, in part, by reference to the ‘missing piece of the jigsaw’ cases. Mr Justice Flaux concluded that these cases did not obviate the need to establish a good arguable case. The relief remained narrow and exceptional.45 In reviewing the development of the jurisdiction, the judge reasoned that P v T was an exceptional case, probably explained as a situation in which there was clear wrongdoing in the sense of a breach of natural justice. It could not be regarded as lowering the thresholds more generally (a point considered further in Chapter 7.6 below). Turning to the cases on ‘missing piece of the jigsaw’, the judge reasoned that the Court of Appeal in Axa was only concerned with a missing piece that would perfect the cause of action, which would, by definition, be a case where the claimant had a sufficient good arguable case. He observed that the order in Carlton was in a narrow compass and that it had been conceded in Mitsui that there was an arguable case.

6.2.9  Overseas authority In Canada, at least in Ontario, the equivalent jurisdiction has been applied to missing pieces of the jigsaw, with significant reliance upon English authorities. The case of Straka v Humber River Regional Authority46 involved an application to obtain a copy of a reference to enable the applicant to consider whether to bring a claim. The applicant satisfied the threshold requirements for relief but failed on an issue of privilege. The case is considered further in Chapter 7.9.5 below in connection with the standard of proof.47 Similarly, in Hong Kong, relief has been granted for the missing piece of the jigsaw. The cases are addressed in Chapter 7.9.5 as part of the standard of proof more generally. An interesting example is however provided by Equatorial 44 Paragraph 146. See further Ch 10.2.3 on the scope of the order. 45 The judge also concluded that the Evidence (Proceedings in Other Jurisdictions) Act 1975 was engaged and that Norwich Pharmacal relief would not be appropriate – see further Ch 14 below. 46 (2000) 51 OR (3d) 1. Reliance was placed, in particular, upon Axa and P v T. 47 English authorities concerning the availability of relief to evaluate whether a cause of action exists were also referred to with apparent approval by the Ontario Court of Appeal in GEA Group v Flex-NGate Corporation 2009 ONCA 619 (CanLII), citing P v T and Mitsui (see paras 81 and 91).

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Mining v Mapletree Holdings.48 The applicant was an Australian mining company, Equatorial, which had entered into various transactions with Errigal, a company ultimately owned, via intermediate companies, by a trust. The applicant suspected that its former directors had in fact been behind the trust and Errigal and that they had accordingly acted in breach of duty in relation to the transactions. The applicant sought disclosure as to those ‘behind the trust’, meaning details of any financial arrangements with the directors. The application was made against the current and former trustees and against the Hong Kong solicitor responsible for making decisions on behalf of the trust. The judge concluded that the applicant had demonstrated ‘sufficient evidence to show good grounds for supposing’ that the directors were behind the trust, though ‘still insufficient to show a prima facie case’.49 The judge reasoned that ‘without the missing piece, [the applicant] is not in a position to make any claim against any of its former directors for obtaining unauthorised and improper benefits through the office of director’. In response to the suggestion that the applicant already had enough, the judge referred to the evidence from the applicant’s solicitors that ‘it would be improper now for [the applicant] to advance allegations of equitable fraud against the suspected former directors because of the strict rules on the conduct of litigation in New South Wales’ which prevented solicitors from advancing such a claim without material which shows a reasonable prospect of success.’50 Relief was granted.

6.2.10 Discussion The characterisation of the missing piece of the jigsaw cases depends upon the applicable standard of proof for wrongdoing more generally. This is addressed in Chapter 7.6. One notable feature of the missing piece cases is how infrequently relief has been granted. Whatever the precise test for necessity, relief will rarely be granted if either the claimant already has enough to plead a case or can obtain the information by other means, including by pre-action disclosure from the (known) intended defendant (an avenue which had not been introduced at the time of the obiter support expressed in Axa). The two successful applications were Kalmneft and Carlton. The first of these is probably too broad. The judge did not deal with necessity at all and, in substance, granted broad third party disclosure rather than specific relief tailored to the missing piece of the jigsaw. Accordingly, it is perhaps better regarded as a fore-runner of the broader jurisdiction discussed below, rather than as a case specifically dealing with a missing piece of the jigsaw. Carlton is therefore the only robust example of relief being granted on this basis. However, it can be questioned whether any piece was really missing in that case. Before considering this further, it is necessary to examine what it means for a piece to be missing. This must mean that there can be no good pleading. It may be that any pleading would be summarily dismissed (either by strike out 48 [2008] HKEC 1832, Deputy Judge Louis Chan. 49 [2008] HKEC 1832 at para 31. 50 [2008] HKEC 1832 at para 33.

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or summary judgment) for having no real prospect of success.51 Alternatively, it may be that the claimant cannot sign a statement of truth verifying the facts pleaded. For some types of claim, heightened pleading requirements exist.52 In the case of allegations of fraud, they are supported by heightened professional obligations.53 For most purposes, the pleading rules require a claimant to plead facts, not evidence.54 Even where facts remain uncertain, it is therefore still possible to plead a case using primary facts and inviting inferences pending further information and disclosure. In Carlton, the judge recorded that there was ‘what, plausibly, on the evidence, could be a wrongdoing’ and that Carlton had ‘strong grounds for suspicion’. However, he said this was ‘not of course the same thing as having enough to put an allegation that there has been a breach of the contract and signing that as a statement of truth.’ This may be questioned. If they had pleaded the facts that gave them grounds to suppose there was over-production and then pleaded the inference that there had been over-production, they would have been able to sign a statement of truth. A decision to dismiss such a case summarily would be hard to justify since, with strong grounds for the suspicion, there might well have been a real prospect of success. It would not have been necessary for the claimant to sign a statement of truth that there had been a breach of contract. Rather, it would have been necessary to sign a statement of truth as to the facts relied upon coupled with an inference that there had been over-production, such that there was a cause of action for breach of contract. By contrast, a piece was missing in Mitsui. The court there determined that the alternative remedy of pre-action disclosure was to be preferred. As explained in Chapter 15.1, the threshold for such disclosure is relatively low. Even with a more relaxed test of necessity than applied in Mitsui, the pre-action disclosure route still seems likely to be the response in most cases.55 This had not seemingly been possible in Carlton because pre-action correspondence had already revealed that the intended defendant, VCI, had no documents on the question.56

51 The test of no real prospect of success relates to summary judgment in CPR 24.2. A strike out under CPR 3.4(2) is possible if the claim discloses no reasonable ground for bringing a claim. The two tests appear to overlap substantially at least as regards factual issues. 52 See, for example, the regime for pleading defamation in CPR PD 53. Another important example is a claim alleging fraud, where under CPR 16.4(1)(e) and CPR Pt 16, PD 8.2 a claimant is required to set out any allegation of fraud in his particulars of claim where he wishes to rely on them in support of his claim. In such cases, the claimant must state the facts so as to show distinctly that fraud is charged (see Garden Neptune Shipping v Occidental Worldwide Investment Corp and Concord Petroleum Corp [1989] 1 Lloyd’s Rep 305). 53 Under para 704(c) of the Bar Code of Conduct, barristers may not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing any allegation of fraud without reasonably credible material which as it stands establishes a prima facie case of fraud (see also Medcalf v Weatherill [2003] 1 AC 120). Similarly, IB(5.7)(b) of the SRA Code of Conduct provides that solicitors may not draft any documents relating to any proceedings containing any allegation of fraud unless the solicitor has material which he reasonably believes shows, on the face of it, a case of fraud. IB(5.8)(b) also prevents solicitors from suggesting that any person is guilty of a fraud unless such allegations appear to the solicitor to be supported by reasonable grounds. 54 This point was emphasised in Axa by Morritt LJ at para 18. 55 See further Ch 11.9 below. 56 If VCI had nonetheless had the right to obtain documents from VDC, the pre-action application could have been pursued against VCI. In practical terms, the result would have been very similar as the burden of locating the documents would still have fallen upon VDC.

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Thus it seems that it will be relatively rare to encounter a missing piece case where relief is needed. Nonetheless, the extension of Norwich Pharmacal principles into this territory will ensure that relief can be obtained in those relatively few but deserving cases where it will make a difference. This may be particularly significant (subject to the discussion of necessity in Chapter 9) where there is a natural caution about statements of truth based upon inferences and a genuine desire to establish whether or not the missing piece exists.

Other legitimate objectives The missing piece cases have dealt only with information needed to bring proceedings. As will be explained in Chapter 9.2 below, relief has been granted in pure identity cases for other legitimate objectives, such as dismissing a disloyal employee. There would seem to be no reason in principle why the same logic should not be extended to missing information. If so, it would be possible in principle, for example, to obtain information to determine whether an employee has in fact been disloyal and disclosed confidential material.

6.3  THE FLEXIBLE REMEDY This section deals with the transformation apparent in later cases such as Mohamed (2008), but having its origins in the House of Lords decision in Ashworth Hospital Authority v MGN (2002).57

6.3.1  Ashworth Hospital Authority v MGN This case, in 2002, concerned the publication in the Daily Mirror of extracts from the medical records of Ian Brady, one of the Moors murderers who was a patient at Ashworth Security Hospital. The Daily Mirror had obtained the information from an intermediary. As well as considering Norwich Pharmacal relief, the case also involved consideration of section 10 of the Contempt of Court Act 1981, which (as discussed in Chapter 13.2) imposes an additional constraint on disclosure of information in cases relating to journalistic sources. For present purposes, the significance of the case lies in its re-formulation of the conditions required for Norwich Pharmacal relief. The leading speech was given by Lord Woolf CJ, with whom all members of the House agreed.58 Having dealt with the question of wrongdoing, Lord Woolf turned to involvement which he said ‘is not a stringent requirement’ but ‘is still a significant requirement’ which ‘distinguishes [the respondent] from a mere onlooker or witness’.59 It 57 [2002] UKHL 29; [2002] 1 WLR 2033. References below to page numbers are to the Weekly Law Reports. 58 Lord Slynn agreed fully with Lord Woolf’s reasons but also gave a short speech. So too Lord Hobhouse, whose short speech focused upon section 10 and ECtHR case law. Lords BrowneWilkinson and Nolan agreed with both Lord Woolf and Lord Hobhouse. 59 [2002] 1 WLR 2033 at p 2042.

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was a threshold requirement. Even when satisfied, there remained the further protection that the jurisdiction was discretionary: the Court would need to decide whether disclosure was ‘necessary and proportionate in the circumstances’. At that stage, the court would consider the inconvenience of becoming embroiled in the proceedings and take account of the fact that the third party can be indemnified for the costs. Lord Woolf considered that it should make no difference whether the wrongdoing was a breach of contract or tortious. Indeed, he also stated (though the point does not appear to have been material to the issues) that, contrary to prior authority, the commission of crime should qualify as wrongdoing for this purpose. This is addressed in Chapter 7.2. For present purposes, however, it is sufficient to note that he concluded that ‘the more restrictive approach attaches excessive significance to the historic origins of the jurisdiction’.60 Towards the end of his description of the Norwich Pharmacal jurisdiction, he said as follows (emphasis added): ‘The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. 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 not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T [1997] 1 WLR 1309 (where relief was granted because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action).’61

The better interpretation is that the case reformulated the test applicable in all Norwich Pharmacal situations and, in particular, removed the mere witness rule by transforming ‘necessity’ from a threshold into a discretionary factor. In the Norwich Pharmacal case itself, all of their Lordships accepted that it was settled law that discovery could not in general be ordered against a mere witness, but they concluded that this did not prevent discovery in particular circumstances. They did not seek to overrule the so-called mere witness rule established by prior authority, including the House of Lords in Queen of Portugal v Glyn.62 However, they concluded that a qualification (not strictly an exception) applied where there had been wrongdoing and the discovery was needed (or, in later parlance, was necessary) since otherwise there could be no trial of that

60 [2002] UKHL 29 at para 53. 61 [2002] UKHL 29 at para 57. 62 See Ch 3 and, in particular as regards Queen of Portgual v Glyn at Ch 3.3.

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wrongdoing. Necessity was the key to overcoming the mere witness rule. As such, it was a jurisdictional requirement or threshold.63 In subsequent cases, as seen in the earlier part of this chapter and in Chapter 5, the defining characteristic of being ‘mixed up’ in another’s wrongdoing was applied as a foundation for relief in other areas. The mere witness rule remained. The courts therefore sought to explain any new application of the principles by reference to the mere witness rule.64 As the corollary of the mere witness rule, the test of necessity remained robust, even in these new areas. In Ashworth, the ‘necessary’ label remained but became a part of the discretion, alongside proportionality. Lord Woolf provided no definition of ‘necessary’ but linked it closely both to proportionality and to the equivalent concept applicable in the context of the European Convention on Human Rights, which was relevant to freedom of expression and thus journalistic sources. Thus he said (emphasis added): ‘It is for this reason that it is well established now that the courts will normally protect journalist’s sources from identification. However, the protection is not unqualified. Both section 10 and article  10 recognise this. This leads to the difficult issue at the heart of this appeal, namely whether the disclosure ordered was necessary and not disproportionate. The requirements of necessity and proportionality are here separate concepts which substantially cover the same area. In his submissions Mr Browne relied correctly on the decision of the European Court in Goodwin v United Kingdom 22  EHRR  123. I  find no difficulty in accepting the approach that the European Court emphasised, in pp 143-144, para 40 of its judgment, that (i) ‘As a matter of general principle, the ‘necessity’ for any restriction of freedom of expression must be convincingly established’ and (ii) ‘limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court’.’

In other words, the necessity test was (with proportionality) an aspect of assessing the balance amongst competing interests. The use of the term ‘necessary’ in the passage quoted previously appears likely to be intended to reflect the same concept.65 This is consistent with the outline of the jurisdiction given by Lord Kerr (with whom the other members of the court agreed) in the more recent RFU case in the Supreme Court.66 The Supreme Court there emphasised the flexible discretionary 63 The term ‘jurisdiction’ is used in a number of different senses. Its strict meaning refers to the power of the court to make an order. It is also used to reflect the limits that have been put upon that jurisdiction by what might more properly be termed ‘settled practice’, often by judicial precedent. The distinction is drawn by Pickford LJ in Guaranty Trust Co of New Tork v Hannay & Co [1915] 2 KB 536, 563. See, further, Lord Scott in Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320 at 329 (on freezing injunctions). In this chapter, jurisdiction is given its strict meaning. This is to be distinguished from, for example, the term ‘threshold’ as used in Ashworth. The term has a distinct meaning in the context of international litigation: see Ch 14 below. 64 See, for example, Hoffmann J  in Arab Monetary Fund v Hashim (No  5) [1992] 2  All ER  911 explaining Bankers Trust in such terms (there would be no point in calling a third party as a witness if, in the meantime, the assets could not be located and secured); Hoffman LJ in Aiyela [1994] QB 366 as regards post-judgment relief (the rule does not apply once there has been a substantive trial); and Morrit LJ in Axa [1998] CLC 1177 as regards the missing piece of the jigsaw (there could be no trial without the missing piece of the jigsaw). 65 The quotation from para 57 is set out above in this section. 66 [2012] UKSC 55, particularly paras 15–17.

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nature of the remedy, noted that ‘necessity’ does not require the remedy to be one of last resort and underlined that ‘the essential purpose of the remedy is to do justice’. This fits with the increased availability of third party disclosure under the Civil Procedure Rules, which were developed from the consultation and reports produced by Lord Woolf. With effect from April 1999, the CPR had substantially qualified the mere witness rule by allowing third party disclosure in broadly defined circumstances, subject to broad judicial discretion.67 An alternative view of Ashworth might have been that Lord Woolf simply did not deal with the mere witness rule and the alternative formulation of necessity; they were not relevant since it was common ground that ‘the only way in which the source is likely to be discovered is as a result of an order such as that made’.68 It is certainly right that he nowhere mentions the mere witness rule or any of the key authorities on that rule (aside from Norwich Pharmacal itself). However, the description of the jurisdiction provided appears to be intended to be a comprehensive statement of the applicable principles. The mere witness rule would seem to be a substantial limit derived from the infancy of the remedy, which might stultify its use, ie one that Lord Woolf was keen to sweep away. In subsequent cases, the mere witness rule has tended not to feature.69 The concept of necessity has been developed in the manner described in Chapter 9 which appears to have moved away from its original close correlation with the mere witness rule. In recent cases, it has been framed in terms of what is ‘necessary in the interests of justice’. The conclusion appears to be that, in principle, Norwich Pharmacal relief can be granted wherever the two thresholds relating to wrongdoing and involvement are satisfied and the court determines that this would be appropriate in the exercise of its discretion, having regard to necessity.70 The clearest indication that this is now the position is found in the recent cases arising in a very different field, considered below.

6.3.2  The torture cases – Binyan Mohamed From 2008, the courts have dealt with a series of cases involving the application of Norwich Pharmacal to situations involving alleged torture and other illtreatment, as well as the relationship between relief and foreign proceedings. First was the high profile Mohamed series of cases. The lead case in that series, which was followed shortly thereafter in the Aamer case, demonstrated the potential breadth of relief by allowing broad disclosure to assist in making representations to overseas authorities. However, in Omar, the Court of Appeal determined that 67 See Chs 16.1 and 16.2 below. 68 [2012] UKSC 55 at para 19. 69 There are some references still to the ‘mere witness’ but almost always as a synonym for the ‘mere bystander’ who is differentiated from someone sufficiently involved in the wrong. This is a distinct concept. 70 This interpretation appears to have been adopted in CliniSupplies v Park [2012] EWHC 3209 (Ch) (Mark Herbert QC): see para  29. The case in fact was unusual as relief was sought (but refused) against a party to ongoing proceedings.

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relief should not be available in connection with foreign criminal proceedings given the existence of a statutory regime. That qualification is addressed in Chapter 14. For present purposes, it appears, as described below, that the Court of Appeal endorsed in principle the breadth of the available relief and its flexibility, subject only to the statutory qualification which applied there.71

Binyan Mohamed In the principal case of R (on the application of Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs,72 the courts considered the application of Norwich Pharmacal in a very different context.73 The case concerned an Ethiopian national who had been resident in the UK and who had been arrested in Pakistan in 2002 and held since 2004 by the US at Guantanamo Bay, charged with offences that might carry the death penalty. It was alleged that he had been trained in Al Qaida camps and that he had worked on the construction of a radioactive ‘dirty bomb’ to be detonated in the US. When the application was made, it appeared that the so-called Convening Authority in the US would imminently be making a decision on whether or not to refer his case to trial before a Military Commission. The applicant protested his innocence and maintained that confessions obtained from him had been procured by torture by Pakistani and Moroccan authorities, with the connivance of the US  Government, and then by the US authorities at Guantanamo Bay. The US authorities refused to provide any information about his detention prior to Guantanamo Bay. During that period, the UK Security Services had interviewed the applicant and asked questions via the US authorities. The applicant therefore sought disclosure from the Foreign Secretary under Norwich Pharmacal but this was refused. He applied for judicial review of that decision to the Divisional Court (Thomas LJ and Lloyd Jones J). The Foreign Secretary accepted that documents held by the UK  Government could be considered exculpatory or might otherwise be relevant. However, he maintained that documents would be made available during the US proceedings, thereby providing the applicant with a proper remedy, whereas to order disclosure would cause significant damage to national security. The proceedings were held in open and closed sessions using special advocates. The Divisional Court considered a wide range of issues which are addressed in subsequent chapters. For present purposes, however, the significant point is that the court permitted disclosure in a scenario which bears little similarity to the original Norwich Pharmacal case. The court reasoned as follows:74 ‘132. In considering the scope of what can be ordered and the application of the principles in Norwich Pharmacal in an entirely novel area outside 71 See generally C. Taylor, ‘Disclosure of foreign intelligence material: CPIA, Norwich Pharmacal and the war on terror’ (2011) 15 E&P 338. 72 [2008] EWHC 2048 (Admin). 73 The court also considered, but rejected, a parallel application for disclosure founded upon international law. 74 Typographical errors referring to Norwich Pharmacol [sic] have been corrected.

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Chapter 6  Extending Norwich Pharmacal the commercial, confidentially and tracing cases where the jurisdiction has previously been considered, it is important to bear in mind the statements of the highest authority that the remedy is a flexible one. It is sufficient to refer to what Lord Woolf said in Ashworth Hospital at paragraph 57 [quoted above]. 133. It seems to us, therefore, that although the action cannot be one used for wide-ranging discovery or the gathering of evidence and is strictly confined to necessary information, and the court must always consider what is proportionate and the expense involved, the scope of what can be ordered must depend on the factual circumstances of each case. In our view the scope of the information which the court may order be provided is not confined to the identity of the wrongdoer nor to what was described by Lightman J in Mitsui & Co Ltd v Nexen Petroleum UK Ltd … at paragraph 18 as “the missing piece of the jigsaw”. It is clear from the development of the jurisdiction in relation to the tracing of assets that the courts will make orders specific to the facts of the case within the constraints made clear in Norwich Pharmacal and the cases to which we have referred. 134. We accept that the justification for the extension to the provision of more information than merely the identity of the individual or a certain specific fact was justified on the basis that equity was always prepared to assist the tracing of assets. However where in this truly exceptional case information is said to be necessary to exculpate an individual facing a possible death penalty if convicted, we consider that a court is entitled to exercise the jurisdiction to order certain specific information be made available to serve the ends of justice, without the narrow circumscription that some observations suggest. A system of law under which it is permissible to order the provision of information to trace a person’s property, but under which it was not permissible to order the provision of information to assist in the protection of a person’s life and liberty would be difficult to justify.’

The Court found (having reviewed the material) that the information held by the Foreign Secretary was essential for a fair trial on the allegations about torture; it was information ‘capable of providing the only real answer … to the charges made’.75 The reasons for this conclusion were detailed in a closed judgment. Norwich Pharmacal should be extended to cover disclosure in favour of a defendant in the ‘unique circumstances of this case’. Turning to the extent of the disclosure required, the Divisional Court noted that most of the cases concerning this aspect of the Norwich Pharmacal jurisdiction concerned banks under the Bankers Trust line of authority.76 The key consideration was that the remedy was flexible. It would be confined to what was necessary and regard would be paid to proportionality and expense. However, there was no limit in principle, as shown by the Bankers Trust tracing cases. The disclosure sought was fairly broad, with many paragraphs formulated ‘any evidence’ on particular points related to the applicant. The Court did not rule on specific categories, save to the extent of ruling out those requests that did not specifically deal with the applicant.77 A further hearing would be needed once the Foreign Secretary had made detailed claims to public interest immunity. As to discretion more generally, however, the Court concluded that it would grant 75 [2008] EWHC 2048 (Admin) at paras 105-107. 76 [2008] EWHC 2048 (Admin) at para 129. 77 [2008] EWHC 2048 (Admin) at para 138.

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disclosure given the consequences for the applicant and the significance of the prohibition on State torture.78 The Divisional Court’s decision was not appealed. Following the first judgment, issues regarding public interest immunity (ultimately asserted over all of the documents) and discretion were the subject of two interim decisions.79 However the issues had not been determined before they were substantially superseded by developments in the US, including confirmation that the documents would be disclosed to the Convening Authority. Nonetheless, the proceedings were not at an end. Seven paragraphs had been provisionally redacted from the first open judgment at the request of the Foreign Secretary. This issue ultimately ended up before the Court of Appeal.80 The appeal to the Court of Appeal did not deal directly with the original Norwich Pharmacal application. Nonetheless, each of the members of the Court (Lord Judge CJ, Lord Neuberger MR and Sir Anthony May P) provided an account of that earlier stage, without disapproval. Lord Judge CJ specifically recorded his agreement that the Norwich Pharmacal principle was wide enough to encompass the disclosure ordered.81 The Mohamed case was cited (on a point regarding necessity) in the more recent Supreme Court decision in the RFU case.82

Shaker Aamer A similar conclusion was reached by a separately constituted Divisional Court (Sullivan LJ and Lloyd-Jones J) in Shaker Aamer v Secretary of State for Foreign and Commonwealth Affairs.83 This case concerned another Guantanamo Bay detainee who was a British citizen, arrested in Afghanistan. He alleged that he had been tortured and that the UK security services had been involved. He had made certain confessions which he alleged were the result of such treatment. His case, in common with others, had been referred by the US Attorney General to the Guantanamo Review Task Force, which would make a recommendation to a Review Board as to whether he should be prosecuted or released (in which case one option under consideration involved his transfer to Saudi Arabia). The Foreign Secretary had conducted searches and ultimately had provided ‘potentially relevant documents’ to the Task Force but on terms that they should not be disclosed to the applicant or his representatives without consent from the UK Government. For present purposes, it is sufficient to note that the Divisional Court granted relief for the purposes of making submissions to the Task Force rather than for pending court proceedings.

78 [2008] EWHC 2048 (Admin) at paras 139-147. 79 [2008] EWHC 2100 and [2008] EWHC 2519 respectively. 80 [2010] EWCA Civ 65; [2011] QB 218. There was a further issue as to the terms of a paragraph in the judgment of Lord Neuberger MR, decided at [2010] EWCA Civ 158. 81 [2011] QB 218 at 239A, para 30. 82 [2012] UKSC 55. 83 [2009] EWHC 3316 (Admin).

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Chapter 6  Extending Norwich Pharmacal

Omar, Njoroge and Mbuthia A number of defendants were charged in Uganda with involvement in bombings in Kampala. Several brought proceedings in England under Norwich Pharmacal on the basis that the UK intelligence services had been involved during their detention in Uganda. They made allegations of ill treatment. Two alleged that they had been subjected to unlawful rendition from Kenya. Petitions had also been submitted to the Constitutional Court of Uganda alleging unlawful rendition, ill treatment and other wrongdoing. They applied for information and evidence for use in those Constitutional Court proceedings. Their application was formulated as one seeking judicial review of the Foreign Secretary’s refusal to provide that material voluntarily. The case has involved two trips to the Court of Appeal. On the first visit,84 the Court of Appeal considered an appeal against the refusal of permission to bring judicial review proceedings. As a permission hearing, the court was concerned only with whether it was arguable that the ingredients, principally necessity, could be established. Lord Justice Kay (with whom Lord Justice Sullivan agreed85) reasoned that unlawful rendition might provide a defence of abuse of process86 and concluded that the prospect of establishing the defence would be ‘greatly enhanced’ by obtaining documents rather than seeking to rely only on inference. In reaching these conclusions, the Court of Appeal appears to have accepted that broad Norwich Pharmacal relief was in principle available in this type of situation. As a result, the full application for judicial review was heard by the Divisional Court.87 By this point, it had been combined with two other applications in which permission had ultimately also been granted as regards allegations of ill-treatment.88 The principal point addressed by the court was a new point, the existence of statutory means to obtain evidence for foreign proceedings which, it was said, precluded the availability of relief. The Divisional Court refused relief on this basis. This decision was upheld by the Court of Appeal, albeit with slightly different reasoning. This aspect is addressed in Chapter 14. For present purposes, it is important to observe that the Court of Appeal decision does not suggest any broader qualification upon the principles applied in Mohamed and Aamer and, in particular, the broad availability of flexible relief. Rather, the Court of Appeal recognised that there were areas that had been ‘fenced off’ by distinct statutory regimes.

84 R  (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA 1587. 85 Lord Neuberger MR reached the same conclusions but with greater misgivings. 86 Akin to the decision in the English case of R  v Mullen [2000]  QB  520, in which the defendant had been brought back to England from Zimbabwe without proper process; his conviction was later quashed on the basis that he would not otherwise have been tried in England. See also R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42. 87 R  (on the Application of Omar, Njoroge and Mbuthia) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 1737 (Admin). 88 Permission was granted on rendition but refused on ill-treatment in R (on the application of Njoroge and Mbuthia) v Secretary of State for Foreign and Commonwealth Affairs [2012]  EWHC  681 (Admin), but the latter point appears to have been overturned by a single Lord Justice; see para 14.

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Thus, for example, the Lord Chief Justice (Lord Judge) reiterated ‘the need for continuing flexibility in the development of Norwich Pharmacal principles’ save where prohibited by statute.89 Moreover, since the points had been fully argued, the Court of Appeal also addressed a number of points of principle notwithstanding the conclusion on jurisdiction. Those points are addressed in subsequent chapters. They did not include any constraint upon the breadth of the relief sought or any other constraint, aside from statute, upon the availability of relief.

6.3.3  Subsequent Cases In subsequent cases, the courts have continued to refer to the need for flexibility. Thus, for instance, the Supreme Court in Rugby Football Union v Consolidated Information Services90 highlighted the emphasis upon the need for flexibility and discretion. There are some cases where wide ranging relief has been granted. However, some decisions have emphasised that Norwich Pharmacal relief is exceptional and should be narrowly confined. Thus, for example, in Ramilos Trading v Buyanovsky,91 referred to above, Mr Justice Flaux refused the relief sought on a number of grounds, including the breadth of the order sought (which ran to 39 detailed questions, some of which were said to be of truly breath-taking width). These cases are considered in Chapter 7.6 below. The judge also reviewed the development of the jurisdiction in order to address the submission that broad relief should be granted. The analysis of the ‘missing piece’ cases has been addressed above. In addition, the judge reviewed the Mohamed and Omar decisions referred to in the preceding section, concluding that they only required disclosure of what was considered necessary and proportionate in the exceptional circumstances. They did not provide a basis for considering that the jurisdiction had been transformed.

6.3.4  Justice and Security Act 2013 By section 17 of the Justice and Security Act 2013, there is now a statutory restriction preventing the Court from ordering disclosure of ‘sensitive information’, being information held by or relating to the intelligence services or information which the Secretary of State certifies on the basis that disclosure would be contrary to the public interest.

89 Paragraph 2. See also Kay LJ at para 21, referring to the developmental potential of the remedy. 90 [2012] UKSC 55 – see, in particular, Lord Kerr (with whom all other members of the Court agreed) at para 15. 91 [2016] EWHC 3175 (Comm).

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6.4  BROADER IMPACT The principles underlying Norwich Pharmacal have been significant in influencing the development of other areas of law. Thus, for example, in Cartier v British Sky Broadcasting,92 the Court of Appeal upheld blocking injunctions against internet service providers requiring them to prevent customers from accessing websites infringing trade marks. This was based upon the ‘duty to assist’ by analogy to Norwich Pharmacal. The Privy Council has also determined that a common law power exists to order disclosure to assist in a foreign insolvency, drawing an analogy to Norwich Pharmacal to demonstrate the courts’ ability to compel provision on information where necessary to give effect to recognised legal principle.93

6.5 CONCLUSIONS This chapter has reviewed the extension of Norwich Pharmacal into the fields of post-judgment enforcement and discovery of missing pieces of the jigsaw. It has been seen how, since Ashworth, relief under Norwich Pharmacal has been generally available provided that the two thresholds of wrongdoing and involvement have been satisfied and, importantly, that the Court concludes that the case is an appropriate one in which to exercise its discretion (bearing in mind, in particular, necessity). The breadth of this means that cases dealing with the missing piece of the jigsaw represent a particular instance within this broader jurisdiction. Though overruled in the particular context of foreign criminal proceedings, Mohamed confirms that broad relief is in principle available where a deserving case can be made out, subject always to statutory qualifications.

92 [2016]  EWCA  Civ  658. See also Arnold J  at [2014]  EWHC  3354. Similar injunctions had been granted previously in copyright cases, based upon specific legislation in that context. The Court of Appeal decision is under appeal. 93 [2014]  UKPC  36. The Privy Council was unanimous in concluding that the power could not be exercised given the limits on what information would have been available in the foreign insolvency itself. A  majority (Lords Sumption, Collins and Clarke) considered that the power existed. The minority (Lords Mance and Neuberger) considered that there was no such power, both recording that the point might strictly be obiter.

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7

Wrongdoing

This chapter deals with the first of the thresholds that must be established for relief: wrongdoing. Although there has been some doubt at the margins, it remains a central proposition that an applicant must establish the threshold requirement of wrongdoing. It has become settled that an ‘arguable’ case of wrongdoing is sufficient, though there remains some uncertainty about how that concept is to be understood.

7.1  WHOSE WRONGDOING? A  typical application will be based upon the acts or omissions of the alleged wrongdoer (typically the party whose identity is sought), rather than by the respondent. In that scenario, whether or not the respondent is also a wrongdoer is irrelevant to passing the threshold: British Steel Corporation v Granada Television.1 In this case, in 1980, the House of Lords applied Norwich Pharmacal in ordering disclosure of the source of leaked documents provided to the media. The case arose in the context of a national steel strike. A  source, seemingly within the British Steel Corporation, had provided Granada Television with a number of confidential documents which touched upon issues such as the government’s position and its dealings with British Steel regarding the strike. British Steel was told about the documents shortly before a scheduled interview with its Chairman, which was allowed to proceed. British Steel then sought the return of the documents and an injunction restraining their use. The documents were returned, albeit mutilated such that any details that might identify the source had been removed. British Steel thereafter amended its claim to seek an affidavit disclosing the identity of the source. That source had been promised confidentiality by Granada. The House of Lords was split 4:1 in favour of ordering discovery under Norwich Pharmacal. The central issue in the case concerned the ability of the press to protect their sources. The outcome led to the passage of section 10 of

1 [1981] AC 1096.

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the Contempt of Court Act 1981, which now governs in this area. It is discussed in Chapter 13.2. The case is however of broader significance in that it allows relief against a wrongdoer (not just an innocent party). At its lowest point, the television company had obtained the documents in breach of confidence.2 It was accepted by Granada that an injunction could have been obtained in advance to prevent the use of the documents.3 Disclosure was ordered on the basis that the source was a wrongdoer and the journalist had become sufficiently involved in the wrongdoing, whether or not that journalist had also been a wrongdoer. Lord Wilberforce (with whom Lord Russell agreed4) considered that ‘a fortiori’ there would be a remedy where there was a direct cause of action against the immediate defendant.5 Lord Fraser’s speech was to similar effect. Viscount Dilhorne (who had of course participated in Norwich Pharmacal) reasoned that Granada was ‘clearly a wrongdoer, if not a thief’6 and that this was sufficient to impose a duty to disclose since, without disclosure, British Steel ‘would have been unable to secure any redress for the wrong they had suffered at the hands of the taker [ie source].’7 Lord Salmon dissented on the basis that relief should not be extended to the press. The British Steel case involved applying Norwich Pharmacal in new circumstances. The original case had concerned identification of the wrongdoers in circumstances where there was no other way to obtain the information. By contrast, where the respondent to the application was also a wrongdoer, an alternative existed: conventional discovery as part of the litigation against that wrongdoer and, potentially, cross examination of witnesses. There were limits to whether this would always lead to discovery of the names since, in broad terms, discovery would be limited to the issues in those proceedings and, accordingly, the names may not in all circumstances have been revealed.8 The procedural history in British Steel was complicated since there had been a settlement of all but the question of whether or not the source could be revealed. It is suggested that the House of Lords was dealing with matters on the basis that ordinary disclosure would not have led to the name being revealed, such that a separate Norwich Pharmacal application provided the only available route (see, in particular, the passage from Viscount Dilhorne quoted above). The principle that relief can be obtained against a wrongdoer has been applied in a series of cases in the intellectual property sphere.9 In the later Ashworth case,10 the House of Lords re-affirmed that disclosure would be available even 2 Under Gartside v Outram (1856) 26  LJ  Ch  113 and Initial Services v Putterill [1968] 1  QB  396 (Court of Appeal), the duty of confidence on an employee was qualified in circumstances where the employer had been guilty of misconduct or iniquity of such a nature that there was a public interest in disclosure. Granada did not suggest that this exception applied: Lord Wilberforce [1981] AC 1096 at 1169B-C and Lord Fraser [1981] AC 1096 at 1202A-B. 3 Lord Wilberforce ([1981] AC 1096 at 1168C) quoting from the printed case. 4 He gave a short speech stressing some salient points but agreed with Lord Wilberfore, with Viscount Dilhorne (at least as regards privilege against self-incrimination) and also Lord Fraser. 5 [1981] AC 1096 at 1171C-G. 6 [1981] AC 1096 T 1183H-1184A. 7 [1981] AC 1096 at 1184A. 8 Note that documents could be redacted to remove irrelevant material, including names and addresses of others: Carver v Pinto Leite (1871-72) LR 7 Ch App 90. 9 See Ch 10.1.2 below. 10 [2002] 1 WLR 2033: see Ch 6.3.1 above.

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Categories of wrong

if the respondent was a wrongdoer. Lord Woolf CJ concluded that it had been unnecessary for the Court of Appeal in that case to reach any conclusion on whether or not the respondent had been a wrongdoer: ‘It is sufficient that the source was a wrongdoer and [the respondent] became involved in the wrongdoing which is incontestably the position’.11

7.2  CATEGORIES OF WRONG Any civil wrong will suffice and, subject to the discussion below, any criminal wrong appears also to be sufficient. In Norwich Pharmacal itself, the wrong alleged to have been committed by the importers was a tort and the speeches were generally phrased in such terms. In Ashworth Lord Woolf said that ‘Whether the source’s wrongdoing was tortious or in breach of contract in my judgment matters not’.12 There, the case turned upon breach of confidence and contract. By way of illustration only, the principle has been applied to breach of contract,13 breach of confidence,14 breach of copyright,15 trade mark infringement,16 deceit and conspiracy to defraud.17 It has also been applied to unjust enrichment following a mistaken payment.18 It had at one stage been questioned whether the relief extended to breach of contract. In Louis Feraud v Unico,19 Mr Justice Lindsay did not consider it appropriate to decide the point. He had noted that there was at least an argument that a wrong under what was a private code of conduct should be treated differently than a tort. Otherwise, the court might be invited to grant relief in circumstances that would be regarded as heavy handed snooping, though he recognised that the court could exercise its discretion to refuse relief. As to criminal wrongs, there is one clear decision of the Court of Appeal rejecting the extension of the concept into this territory, Interbrew v Financial Times.20 There, Sedley LJ (with whom the other members of the court agreed) reasoned that most crimes involving a victim would involve a civil cause of action, whereas in other circumstances granting relief under Norwich Pharmacal would create a ‘practically untrammelled right to disclosure’. He also referred to

11 [2002] 1 WLR 2033 at 2041. 12 [2002] 1 WLR 2033 at 2041. The issue as to the categories of civil wrongs was addressed in greater detail in the Court of Appeal where Lord Phillips MR (for the Court) noted that the cases before and since Norwich Pharmacal had all been cases of tort but that there was no basis in principle for limiting the jurisdiction and no decision on which the point had been addressed. The references in Norwich Pharmacal to tortious conduct reflected the fact that this was the nature of the wrongdoing alleged there. See [2001] 1 WLR 515 at 528-529, paras 55-62. 13 Carlton v VCI and VDC [2003] EWHC 616. 14 British Steel Corporation v Granada Television [1981] AC 1096. 15 Michael O’Mara Books Limited v Express Newspapers Plc [1999] FSR 49 at 61. 16 The Coca-Cola Company v British Telecommunications Plc [1999] FSR 518. 17 Bankers Trust Co. v Shapira [1980] 1 WLR 1274. 18 Santander v National Westminster Bank [2014] EWHC 2626 (Ch) Birss J, concluding that such an equitable wrong was sufficient. As has been pointed out (see subsequent Santander v Royal Bank of Scotland [2015] EWHC 2560 (Ch) Master Matthews), the involvement criterion may be problematic: see Ch 8.2 below. 19 [1996] CLC 122. 20 [2002] EWCA (Civ) 274.

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established authority that the original bill of discovery in equity did not extend to criminal wrongs, a point which was consistent with Norwich Pharmacal itself.21 He left open the possibility of relief in support of private prosecutions. However, in an ordinary case such as that before him, he concluded that ‘it is immaterial to the Norwich Pharmacal jurisdiction that the wrongdoer may have been guilty of a crime. What matters is that the applicant intends to bring a civil action, or otherwise to assert its legal rights … as soon as it knows who the correct defendant is.’22 The court then considered in detail whether a civil wrong had been sufficiently made out. However, in Ashworth Lord Woolf was critical of this decision, albeit that his remarks on this issue were strictly obiter. He concluded that it should be sufficient for the applicant to show that he wants to obtain the identity in order to enable a prosecution by the appropriate authority: ‘the more restrictive approach attaches excessive significance to the historic origins of the jurisdiction.’23 He said: ‘What I have said in relation to the disclosure of the identity of the source with a view to possible criminal proceedings does not detract from the requirement that the person from whom disclosure is sought must have been involved, whether innocently or otherwise, in the wrongdoing which would in these circumstances be criminal. It is this requirement that means the Norwich Pharmacal jurisdiction does not offend the general principle that at common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries: see Rice v Connolly [1966] 2 QB 414 at 419e per Lord Parker CJ.’24

This principle derived from Rice v Connolly has in many areas been superseded by legislation providing enforcement agencies and regulators with powers to obtain information.25 Lord Woolf envisaged that only a victim or the Attorney General would be able to seek discovery in respect of a criminal wrong: ‘As I understand Sedley LJ’s reasoning, he is concerned that a claim to exercise the Norwich Pharmacal jurisdiction might be made by someone who is not a victim of the wrongdoing. The answer to this concern is not to limit artificially the Norwich Pharmacal jurisdiction but to confine the remedy to the victim of the crime. It is true that crimes are usually offences against the public as a whole but the courts and the law are now progressively showing greater concern for the protection of individual victims of crimes. Certainly, I would agree that an 21 [2002] EWCA 274 at para 21. He referred to Bray (1885, p 3) and, in particular, Montague v Dudman (1751) 2 Ves Sen 396, cited there. He observed that the other authority relied upon by Bray, Cartwright v Green (1803) 8 Ves Jun 405 was a case about the privilege against self-incrimination, which is not quite the same thing. 22 [2002[ EWCA 274 at para 22. 23 [2002] UKHL 29 at para 53. 24 [2002] UKHL 29 at para 58. 25 Police and Criminal Evidence Act 1984, s 8 gives a right of search in defined circumstances and a warrant is obtained. Also s 9 and Sch 1 provide that the police may apply to court for production orders in respect of (inter alia) journalistic material (eg, see R  (on the application of British Sky Broadcasting Ltd) v Chelmsford Crown Court [2012]  EWHC  1295 (Admin)). As to the power of other agencies and regulators, see, for example, Criminal Justice Act 1987, s  2 (as regards the SFO) and Financial Services and Markets Act 2000, ss 165, 165A. This is in addition to the issue a witness summons in connection with criminal proceedings under Criminal Evidence (Attendance of Witnesses) Act 1965, s 2.

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individual who has not suffered in consequence of a crime would not be entitled to bring proceedings. Such proceedings would have to be brought on behalf of the public by the Attorney General. What would be the outcome of such an application I do not have to anticipate. However, allowing the victim of a crime to obtain the identity of the wrongdoer should not involve the dramatic consequences that Sedley LJ fears.’ 26

Where the respondent is himself potentially subject to criminal proceedings, the privilege against self-incrimination (discussed in Chapter 11.13) will be relevant.27 There do not appear to have been any reported decisions in which relief has been granted on the basis of a criminal wrong, at least without a civil equivalent.28 Most recently, in Mohamed and Aamer, the wrongdoing limb was conceded. That said, it was described in terms which appear to owe more to criminal or international law than to their civil equivalents.29 By contrast, in United Co Rusal plc v HSBC Bank plc, 30 Tugendhat J recorded, albeit only in his general description of the jurisdiction, that relief could not be granted in aid of criminal proceedings. This must strictly be correct as a matter of precedent since the comments on the issue in Ashworth were obiter. It remains to be seen whether the logic of Ashworth and the flexibility of the remedy will be authoritatively applied when the issue arises for decision. One point does seem clear, however, namely that if the applicant is the victim of serious fraud (or wrongdoing of a similar nature) the courts do appear to be willing to adopt a more flexible approach.

7.3  POST-JUDGMENT ORDERS As was seen in Chapter 6.1, the court can order disclosure to assist in enforcement of a judgment. On one view, the wrong is self-evident because judgment has already been entered. However, in Aiyela, the Court of Appeal appears to have

26 [2002] UKHL 29 at para 54 (emphasis added). 27 Note also the Hong Kong case of Secretary of Justice v Apple Daily [2000] 2 HKLRD 704. This was an application brought in respect of criminal contempt proceedings. The application was rejected principally on the basis of privilege against self-incrimination as the respondent was a ‘confederate in matters pertaining to the offence’: at 712. 28 In Interbrew itself, there was no appeal to the House of Lords; the Court of Appeal had found sufficient civil wrongdoing in any event. In the earlier case of Secretary of State for Defence v Guardian Newspapers [1985] 1  AC  339, the possibility of criminal proceedings must have been evident, but the specific Norwich Pharmacal issue (an alternative) was based upon the civil wrong of breach of employment duties. Recently, the courts of Canada declined to extend the Norwich Pharmacal jurisdiction to apply to intended criminal proceedings. See Bruno-Manser-Fonds v Royal Bank of Canada 2018 ONSC 918. 29 In Mohamed [2008] EWHC 2048 (Admin) the alleged wrongdoing is described in paras 65 to 67; the concession in para 68. For example, para 67 refers to ‘torture and cruel, inhuman or degrading treatment’ and to having been ‘unlawfully rendered’ between countries. See also para 42 of Aamer [2009] EWHC 3316 (Admin). In Omar [2011] EWCA Civ 1587; [2012] EWHC 1737 (Admin) the alleged wrongdoing involved removal from Kenya to Uganda without judicial process. That alleged wrongdoing was conceded and was treated as being sufficient, both on the final hearing (para 91) and in the Court of Appeal at the permission stage. 30 United Co Rusal plc v HSBC Bank plc [2011] EWHC 404 (QB).

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required involvement as regards the attempts to defeat execution.31 Similarly, in one reported case in the Kensington International v Congo32 series, the judge concluded that the respondent was ‘mixed up, at the very least, in dishonest attempts to defeat execution.’ It would seem, therefore, that there is a need to show something more than that a judgment has been entered: the respondent must be involved in defeating execution, a ‘wrong’ in addition to the fact of judgment. In NML Capital v Chapman Freeborn,33 the Court of Appeal considered an application against a charter broker involved in chartering a plane for the President of Argentina. The application was brought to obtain details of the charter and, ultimately, of the accounts being used to pay for the charter, with a view to assisting in enforcing judgments against the Republic of Argentina. The Court of Appeal rejected the application on the basis that there was no involvement in the relevant wrongdoing, being the non-payment of the judgment debt. The Court emphasised the need for involvement in the wrong of wilful evasion, not merely involvement in trade with the judgment debtor. In light of its principal conclusion, the Court of Appeal found it unnecessary to decide whether Norwich Pharmacal should be available in support of post judgment enforcement, accepting that Aiyela did not compel this conclusion since the disclosure order made there was ancillary to the freezing injunction. Although not expressing a concluded view on this point, the Court indicated that if Norwich Pharmacal relief is available, it is only available in ‘very particular and restricted circumstances’. In particular, it was ‘unlikely that the jurisdiction could be engaged short of involvement in something which in itself and necessarily amounts to what Sir Thomas Bingham MR in Aiyela described as “wilful evasion” by the judgment creditor’.34 That is consistent with the view expressed in the first edition of this book that Norwich Pharmacal relief is not available merely because judgment has been entered but only where there is an additional wrong of seeking to avoid judgment and the respondent is in some way involved in that wrong.35 It does not however appear that any specific further legal wrong is required, whether that be commitment of the judgment debtor for contempt or satisfying the conditions for relief under section 423 of the Insolvency Act 1986 (ie  transactions for the purpose of putting assets beyond the reach of someone making a claim or otherwise prejudicing the interests of such a person).36 No such requirement has appeared in the authorities.

31 [1994] QB 366. Hoffmann LJ at 375E ‘mixed up in the arrangements made by her husband to defeat execution’; Steyn LJ at 376G ‘mixed up in her husband’s attempts to make himself judgment proof’. 32 Morison J [2006] EWHC 1848 (Comm). 33 [2013] EWCA Civ 589. Tomlinson LJ gave the principal judgment; Floyd LJ and Jackson LJ agreed. 34 Tomlinson LJ at paras 31-32. cf Credit Suisse Trust Ltd v Intesa Sanpaolo Spa [2014] EWHC 1447 (Ch) (where the application was unopposed and the point is not directly addressed). 35 In JSC BTA Bank v Ablyazov, 28 October 2013 (unreported, transcript via Westlaw), in relation to disclosure against Mr Tyschenko, it was accepted in principle that Norwich Pharmacal relief could be obtained to support enforcement: see para 46. 36 S Gee Commercial Injunctions (6th edition, 2016) at 23.049 suggests that relief applies where the judgment debtor has set out to make himself judgment proof, which could give rise to claims under Insolvency Act 1986, s 423, ie involving a conventional wrong. See also 23.050. This reconciliation does not feature in the cases.

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he meaning of ‘wrongdoing’

For completeness, CPR 31.17 may also be used to permit disclosure against a third party.37 There is also the possibility of disclosure ancillary to a freezing injunction or to render other orders effective.

7.4  THE MEANING OF ‘WRONGDOING’ There are several issues relating to the meaning of ‘wrongdoing’. It may be questioned whether this ingredient requires a complete cause of action actionable by the applicant (or one where each element of the cause of action is, at least, arguable) and whether the concept might be broad enough to include situations where there is a liability, or even a right, without the existence of a paradigm ‘wrong’. There is a line of authority suggesting that an actionable cause of action is required. This is mostly clearly stated by, for example, Lord Wiberforce in British Steel.38 Moreover, in Interbrew, Sedley LJ concluded that the absence of loss was, at least in relation to certain of the alleged wrongs, sufficient to defeat the potential cause of action and thus any wrongdoing. Nonetheless, this can lead to some surprising results. For instance, it is of course settled that injunctive relief can be obtained in a quia timet scenario. Moreover, if an applicant has reason to believe that a wrong is about to be committed but does not know the identity of the intended wrongdoer, he may be able to obtain a quia timet injunction against persons unknown.39 It would be surprising if Norwich Pharmacal relief was not available to assist in identifying the persons unknown in a situation where injunctive relief could be obtained against them as a class.40 Even leaving aside the quia timet scenario, a requirement for a complete cause of action can lead to what might appear somewhat arbitrary results, particularly where the applicant seeks the information to determine whether to discipline or dismiss an employee and thereby to protect against recurrences.41 As discussed in Chapter 9.2, this is a legitimate objective for Norwich Pharmacal relief: provided that there is wrongdoing, there is no requirement that the applicant must bring 37 North Shore Ventures v Plate [2011] EWHC 178 (Ch); Abela v Baadarani [2017] EWHC 269 (Ch). 38 [1981] AC 1096 at p 1174C. 39 The availability of such an injunction, to prevent threatened breach, is well established. Its availability against persons unknown raises a difficult procedural issue. The leading case is Bloomsbury Publishing v Newsgroup Newspapers and others [2003]  EWHC  1205 (Ch) in which Sir Andrew Morrit VC gave a reasoned decision upholding the practice under the CPR and distinguishing the prior prohibition under the RSC. The decision has since been applied on many occasions and has been referred to without apparent disapproval by the Court of Appeal in South Cambridgeshire DC v. Persons Unknown [2004] EWCA Civ 1280. In the subsequent case of Astellas Pharma v Stop Huntington Animal Cruelty [2011]  EWCA  Civ  752 the point was raised belatedly. The Court of Appeal declined to deal with the point, noting that it raised difficult issues of law (Moore-Bick LJ) and that careful consideration would need to be given to the balance of rights (Ward LJ). 40 There have also been examples of proceedings being commenced against persons unknown and disclosure then being ordered against a third party under CPR 31.17 – see Ch 15.4 below. 41 Compare Community Living Fort Frances v TBayTel [2011] ONSC 2734 (CanLII) where Fregeau J, in the Ontario Superior Court, considered that in a case dealing with potential discipline and dismissal, the wrongdoing threshold should be understood accordingly: ‘“Claim” can be broadly defined to include the subject matter for which any proceeding is brought. [The applicant] is contemplating disciplining or discharging [the employee] as a result of her alleged violation of legitimate employment policies’ (para 45). Note that, in Ontario, the wrongdoing threshold is phrased in terms of a bona fide claim.

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proceedings or even that he must intend to do so. In a case where damage has been averted by, for example, an injunction to restrain publication, refusal of relief would be a particularly harsh outcome. Without damage, some causes of action will be incomplete. It may be possible to discern a qualification to any requirement for a complete cause of action from the comments in Ashworth about Interbrew. In Interbrew the leaked document had been doctored so that it contained false information about a potential takeover bid by the applicant.42 The applicant denied that there had ever been any serious discussion about such a bid and thus no loss or damage flowed from the publication, but nonetheless sought the identity of the source. Sedley LJ reasoned that there was no cause of action for malicious falsehood because there was no damage. Nor could there be a claim for breach of confidence in respect of the false information; that could not be confidential. However, he ultimately concluded that there was a cause of action for breach of confidence in respect of the document itself, but not the elements that had been doctored. In this, he differed from the judge, Mr Justice Lightman, who had emphasised the ‘lethal cocktail’ of fact and falsehood. Against that background, Sedley LJ noted ‘Nor … is it material to the Norwich Pharmacal jurisdiction that Interbrew are able to dismiss the source, if they find him or her within their organisation, for misconduct in falsifying as well as leaking documents’.43 In commenting upon this in Ashworth, Lord Woolf said ‘I do not agree with the views of Sedley LJ set out in the passages of his judgment I have cited. His views on the legitimacy of requiring the identification of the wrongdoer so that he can be dismissed are inconsistent with the statement of the position expressed in the British Steel case.’44 Lord Woolf had quoted a number of passages from British Steel (both in the Court of Appeal and House of Lords) all to the effect that it was not necessary to bring proceedings; other forms of redress would suffice. Those passages included Templeman LJ’s reference to the need nonetheless to establish a cause of action. It is not entirely clear how to interpret Lord Woolf’s disapproval of Sedley LJ’s comments on this topic. One interpretation would be that Lord Woolf was saying that the falsity of the document was a feature of a relevant wrong for Norwich Pharmacal purposes. If so, that would mean focusing on what might ordinarily be termed a ‘wrong’, even though the absence of loss and damage meant that there was no actual cause of action. The alternative (and probably the better) interpretation is that Lord Woolf was saying that the ability to dismiss or discipline an employee based upon falsity would be relevant to discretion, even if it played no part in satisfying a threshold condition. If so, that highlights the peculiarity that the most significant aspect of the leak (its falsity) could not provide a foundation for Norwich Pharmacal relief, but it would weigh (perhaps heavily) in the balance if, by fortune, another cause of action could be established. This perhaps misinterprets the passage in Sedley LJ’s judgment which appears to have been focused solely on the threshold condition.

42 [2002] EWCA 274. 43 See Ashworth [2002] UKHL 29 at para 51, citing Interbrew at para 28. 44 [2002] IKHL 29 at para 53.

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More generally, a rigid insistence upon each ingredient of an actionable cause of action may cut against the flexibility of the remedy and thus the spirit, at least, of Ashworth. There are a number of grounds for considering that the proper test may in fact be somewhat lower and that a conventional cause of action is not required. First, a requirement for a cause of action would not fit easily with the availability of relief based upon criminal wrongs. The applicant in such a case will not be able to point to a cause of action at all, though only a victim (or the Attorney General) is permitted to make an application.45 Second, in the sphere of civil wrongs, a requirement for a complete cause of action would lead to an undesirable outcome in a situation involving a network of contracts where, though it seems probable that one has been broken, it is impossible to determine which. An example might be a sales network involving several tiers, each of which prohibits sale to unauthorised retailers. An application by any one of the intermediate suppliers may be resisted on the basis that there is no reason to think that the wrong arises in this particular part of the supply chain rather than any other. If all the intermediate suppliers combined in an application, the same point could still be made: none of the suppliers will be able to establish that it would have a cause of action once the identity is revealed. There will be circumstances where not even an arguable cause of action can be established. It would seem more sensible to regard this as one piece of wrongdoing, with sufficient connection to each. Similarly, one might consider that the principal supplier, at the top of the chain, may be able to make an application. There is wrongdoing, even though the principal supplier would not have a cause of action against the wrongdoer. There is limited support for allowing relief in such circumstances in Louis Feraud v Unico,46 in which Mr Justice Lindsay (when considering an alternative ground for this decision) spoke of the wrongdoing threshold in terms of ‘breach actionable by the plaintiff or their allies’. Moreover, in Wadsworth v Granada47 the Patents County Court granted relief (albeit in the alternative) where there was a contractual chain and it appeared that one of those in the chain might have been a wrongdoer. In that case the principal candidates appeared to be the respondent itself (the judge had held that there was an arguable claim against that respondent by third party rights) and the party which had contracted directly with the applicant. A related issue arises in the context of potential claims against directors. The cause of action is vested in the company. However, shareholders may bring an action alleging unfair prejudice48 (which petition may or may not allege wrongdoing by the directors) or may seek permission to bring a derivative action

45 See Lord Woolf CJ in Ashworth at para 54 and Sedley LJ in Interbrew at para 20. 46 [1996] CLC 122. 47 [2011] EWPCC 20. 48 Now s 994 of the Companies Act 2006.

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in the name of the company.49 In BNP  Paribas v TH  Global50 the applicant shareholders alleged that they had claims for conspiracy to defraud and/or injury caused by unlawful acts and also had grounds for a derivative action to be brought in the name of the company (in which they were shareholders) against directors involved in asset stripping. Deputy Judge Sheldon QC concluded that the evidence disclosed a reasonable basis for concluding that the applicant was ‘a victim of wrongdoing’ and granted relief. No argument appears to have been made that the derivative action would be insufficient for these purposes. Another example is Rusal.51 An outline of the case is given in Chapter 6.2.7 above. It had been submitted that there were at least three forms of wrongdoing. The judge rejected two of these on the basis that the material before him did not provide a sufficiently arguable case, but he accepted that the third was made out on the evidence. The first submission was that there was a requirement under Russian law for permission to be obtained for the challenged transaction and that, without that permission, the transaction was ineffective. The judge appears to have accepted that it would have been sufficient if made out on the evidence.52 The second submission was that the directors had intentionally disposed of assets at an undervalue. This was rejected on the basis that the allegation reflected no more than mere suspicion based upon speculation, though again it appears that it would have been sufficient if established to the requisite standard on the evidence.53 The third submission, which was accepted, was that the companies formed a group and thus, since they held over 30% of the share capital in Norilsk Nickel, they became obliged to make a takeover offer. The judge accepted that it was arguable that it was unlawful for the directors to have assembled a block of shareholders to act as a group for the purpose of neutralising shareholder conflict. On this ground he concluded that there was sufficient case of wrongdoing. The case does not focus in detail upon causes of action, but rather upon the existence of wrongs, even if not necessarily actionable by the applicant. The case of Zeinal-Zade v Mills54 also provides a further interesting illustration. The applicant sought information relating to his father’s estate, though the administrator of his father’s intestacy had not been contacted about the application. The wrongdoing alleged appears to have involved potential concealment of assets involving the two respondents and the applicant’s halfbrother. The short case summary that is available does not suggest that there was any consideration of whether this would have provided the applicant himself with a cause of action. The focus appears instead to have been upon whether or not there was wrongdoing by concealment. 49 Now governed by ss 260ff of the Companies Act 2006. 50 [2009] EWHC 37. The facts underlying the case may be summarised as follows. The applicant, BNP, held shares in THG which had reported being owed substantial sums by a group of companies. There was a restructuring under which that debt was apparently replaced by debt owed by another company, Spinaker, which had minimal assets. Applications were brought against THG, Spinaker and its parent. The applicant’s purpose was to identify those who were responsible for what it considered to be asset stripping. This appears to have meant the directors and other individuals. 51 [2011] EWHC 404 (QB). 52 [2011] EWHC 404 at para 87. 53 [2011] EWHC 404 at para 88. 54 Unreported 27  July 2012, available as a case summary via Westlaw. No transcript appears to be available.

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Third, there is some support for the availability of relief in cases which do not obviously involve what might conventionally be termed ‘wrongs’. One interpretation is that these cases apply a broader threshold condition which recognises liabilities and rights alongside ‘wrongs’, even where not actionable by the applicant. Strict liability torts provide one example, though they are likely to be accommodated within a category of wrongs without too much violence to the term. More significant may be rights to apply to court for relief where there is no requirement for a conventional wrong. One example would be an application for third party costs against a funder. Another would be an application by a shareholder for relief on grounds of unfair prejudice.55 In the latter case, it might be possible to treat the unfair prejudice as a type of wrong, though this seems somewhat removed from the conventional use of the term in the Norwich Pharmacal cases. There is some limited support for relief being available in such scenarios. As well as the examples given previously, in JSC BTA v Solodchenko,56 the court concluded that it would have had authority to require a defendant’s solicitors to disclose details as to who had funded the litigation. 57 The basis for the jurisdiction was not explored, though Norwich Pharmacal had been mentioned alongside other bases. One possible interpretation is that disclosure would have been appropriate in view of the arguable right to seek third party costs. It might be possible to describe this by reference to a wrong, though it seems more natural to acknowledge that it is the existence of the (potential) liability rather than its characterisation as a ‘wrong’ which is significant.58 The case of Re Branchempire59 provides a further illustration. There, a liquidator proposed to compromise proceedings against a director of the company and his associates. In part, he was influenced by the lack of means available to those defendants. The principal creditor objected to the compromise, which required court sanction.60 He did so principally on the basis that he firmly believed that the defendants had more money available. The compromise was approved by a judge. The principal creditor was nonetheless given permission to appeal. In the meantime, he sought disclosure from the defendants under Norwich Pharmacal and CPR 31.17. Those defendants were not parties to the proceedings regarding approval of the compromise. He also sought disclosure from the Land Registry. Relief was refused on the principal basis that the legislation entrusted the decision to the liquidator. For present purposes, it is interesting to note that 55 Section 994 of the Companies Act 2006. Other examples exist in the field of insolvency, such as applications to set aside transactions at an undervalue and preferences under ss  238-239 of the Insolvency Act 1986. However, these powers are exercised on application by an office-holder who will typically have access to the broader powers to obtain information from third parties under s 236: see Ch 15.7 below. 56 [2012] EWHC 1891 (Ch). 57 See the further discussion in Ch 15.6 The two grounds relied upon elsewhere in the judgment were the Court’s jurisdiction over solicitors as officers and the jurisdiction to make orders required to render other orders effective. Norwich Pharmacal had not been relied upon in those other contexts. 58 Compare the decision in Idoport v National Australia Bank and others (New South Wales Supreme Court) [2004] NSWSC 695 where broad Norwich Pharmacal relief was granted as to the third party funding arrangements. The comparison is weakened as, under the applicable rules at the time, a third party would have been liable only if there had been abuse of process. 59 [2010] EWHC 3017 (Ch) (Deputy Judge Alison Foster QC). 60 Under s 165(2) of the Insolvency Act 1986, which applies to voluntary winding up.

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the Norwich Pharmacal application was contemplated notwithstanding the absence of wrongdoing. The applicant had expressly disavowed any allegation of wrongdoing on the part of the liquidator. Whilst he had a right to be heard on the application to sanction the compromise (and its appeal), this could not be said to have been based upon any wrongdoing. The underlying claim against the defendants was not one to which the applicant was a party. Another example is provided by the Gibraltar case of Secilpar v Fiduciary Trust,61 in which the applicant sought disclosure to assist in an action to enforce section 187 of the Portuguese Companies Securities Act 1999 by which anyone holding a certain proportion of the voting rights in a public company was required to make a takeover bid. The key issue concerned whether there was common control and thus disclosure was sought as to the true shareholders by application against the respondents, who were corporate service providers who held shares on trust for third parties. The Court of Appeal concluded that the respondents ‘have a direct link with the beneficial owner, they have clearly facilitated the concealment of his identity and are, albeit innocently, mixed up in his alleged contravention of section 187.’62 It might be said that the ‘wrong’ was the alleged failure to make a takeover bid though this does not appear to be (or have been analysed as) a civil wrong in respect of which the applicant could bring a claim. A further example is provided by the Hong Kong case of Re Greater Beijing Region Expressways.63 In that case, Le Pichon J  granted relief to enable shareholders to make an informed decision about whether or not to support a petition brought by a fellow shareholder to wind up the company on a just and equitable basis. Relief was granted against the director (and indirect shareholder) whose conduct formed the basis for the petition. The judge noted that the remedy was ‘not a true lis but a class remedy’, based upon a right arising from statute. There is one clear authority for extending relief beyond any situation involving wrongs and even beyond any right to apply to Court. In Murphy v Murphy, Neuberger J  ordered disclosure of the identities of trustees so that a potential beneficiary could make representations that he should receive a distribution from the trust.64 In doing so, the judge relied upon Norwich Pharmacal and related authorities, though acknowledging that no wrong was alleged. The case has been cited with some support since and may be seen as a reasoned extension of Norwich Pharmacal principles.65 The alternative view is that it owes too much to its particular context and to the Court’s inherent jurisdiction to supervise trusts.66

61 62 63 64

[2003-04] Gib LR 463, CA. [2003-04] Gib LR 463 at para 48. See also the description of the roles in para 12. Case HCCW 399/1999. [1999] 1  WLR  282. See, more recently, Global Energy Horizons Corporation v Robert Gray [2014] EWHC 2925 65 Sedley LJ in Interbrew [2002] EWCA Civ 274 considered that it was an intelligible extension but that it was not sufficient to justify the extension to criminal wrongs (on which point Lord Woolf disagreed in Ashworth): see para  23. See also Arsenal v Elite [2002]  EWHC  3057 (Ch), where it was cited without comment. 66 The case was cited in Schmidt v Rosewood Trust Ltd [2003] 2  AC  709, a case concerning the discretionary beneficiary’s right to disclosure more generally as against the trustees. The Privy Council’s conclusion in that case was that such disclosure should be approached as a matter of the court’s inherent jurisdiction to supervise trusts.

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In addition, in the Northern Irish case of Anderson v Halifax67 it had been discovered that an individual had paid out a substantial sum six months prior to his death. Having cited Murphy, the court granted an application by the personal representative for discovery from the bank as to the payee’s name, relying upon Norwich Pharmacal.68 It is not apparent that any wrong was necessarily involved. The judge said: ‘In the present case the widow seeks to ascertain the identity of the recipient of the moneys in order to recover those moneys received by the recipient as a volunteer who received the money either knowing that the deceased did not fully understand and appreciate what he was doing or alternatively received the money as a volunteer as a result of a transfer which was unconscionable or obtained as the result of undue influence or made under a mistake. The widow will thus be asserting claims and remedies which may include a tracing remedy and will raise arguments of a constructive or implied trust.’69

There is some attraction in allowing relief to anyone who possesses a right but who cannot determine who bears the corresponding duty. For example, someone may have forgotten the details of a bank account into which money was deposited many years previously; or a personal representative may be unaware of those details. If a former contact (perhaps someone who set up the account) still knew those details, it might be surprising if the court had no ability to make an order (whether or not it might choose to do so in the exercise of discretion). Another possible scenario would involve an applicant who was seeking to establish suspected grounds to rescind a contract for mistake, lack of authority or other vitiating factor. These scenarios do not (necessarily) involve a wrong. One further attraction of such a shift in emphasis would be that the focus upon rights is often necessary in any event at the stage of discretion, not least because the factors that weigh against disclosure may be founded upon rights of privacy or confidentiality. Moreover, since relief can be granted for forms of redress other than proceedings (see Chapter 9.2 below), this too focuses attention upon the rights of the applicant, whether that be to discipline employees or to take other steps. Caution would be required. Any rights-based analysis would need to be confined to private law rights where there was a corresponding duty imposed upon one or more persons, rather than fundamental rights which can be understood more broadly. This is an area best addressed through the exercise of discretion. Moreover, any extension which allowed disclosure of the missing piece of a jigsaw might easily become excessive if applied generally to rights. For example, if two parties have a contract in which a right is triggered by a certain event, this would mean that disclosure could potentially be sought from third parties to determine whether or not that trigger event has occurred. That said, the substance of this dilemma exists already, since the failure to honour the right will lead to an allegation of breach, a civil wrong, which might lead to disclosure as to the

67 [2000] NI 1 Girvan J. 68 The application was in fact made both under Norwich Pharmacal and under the equitable jurisdiction in A v C, see Ch 5 above. Relief was granted under both jurisdictions: [2000] NI 1 at 5d. 69 [2000] NI 1 at 5b–c.

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same missing piece. Accordingly, this issue must be addressed more generally if disclosure of the missing piece is permitted.

7.5  INTERMEDIARIES, WRONGDOERS AND INNOCENTS In Ashworth,70 the House of Lords ordered disclosure of the identity of an intermediary, it being accepted that disclosure of the intermediary would ‘in all probability’ lead to the identity of the original source.71 Lord Woolf (for the House of Lords) concluded that the source was a wrongdoer. He then quoted from the judgment of Lord Phillips MR in the Court of Appeal to the effect that the intermediary and the publisher were both wrongdoers as they had obtained information knowing of a breach of confidence. Lord Woolf considered that this conclusion was not necessary (although it was, he said, almost certainly correct). In other words, it was appropriate to make an order to reveal the identity of someone who need not be a wrongdoer. Wrongdoing remained an essential element, but this did not need to be wrongdoing by the party to be identified, as long as the identity of the intermediary was a step towards identifying the actual wrongdoer. Where disclosure is sought as to the identity of such an intermediary, there is an issue as to whether any further criteria must be met, aside from the ultimate wrongdoing. In Ashworth, Lord Woolf noted that ‘in all probability’ naming the intermediary would be sufficient to identify the source, i.e. the wrongdoer. This formulation reflected the position accepted by the parties. Whilst it was certainly sufficient in Ashworth, it does not follow that this should be read as being a requirement. Similarly, the person to be identified in Ashworth was an ‘intermediary’, who had conveyed the information disclosed in breach of duty. It might be argued that this imposes a constraint, such that similar relief can only be granted to reveal the identity of someone who is a strict intermediary, rather than of anyone who might act as a stepping stone towards identifying the wrongdoer. As to the first of these constraints, it is suggested that a standard lower than ‘in all probability’ should suffice, at least as the threshold. If the court is otherwise satisfied that the relief is vitally important, it would be strange if no relief could be granted even though there was a chance, even if not a probability, that the relief would lead to a successful identification. The exercise of predicting what use might be made of information that is as yet unknown is inevitably a speculative one (as borne out by the subsequent developments in Ashworth). It would seem unrealistic to impose any requirement higher than a real prospect (as opposed to fanciful one) that the relief will lead to the ultimate identification of the wrongdoer. This reflects the test applied in a Bankers Trust scenario in assessing whether the relief will assist sufficiently in tracing.72 Turning to the second possible constraint, concerning the characteristics of the person to be identified, this does not appear to be supported by Ashworth. The precise description there was: ‘intermediary who supplied the material’ 70 [2002] UKHL 29; [2002] 1 WLR 2033. 71 [2002] UKHL 29 para 13. This was not in fact the case: see the discussion in Ch 13.2. 72 See Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911.

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to the respondent. Why should the fact that someone has been an intermediary in the supply of the material make them susceptible to identification, whilst arranging the meeting at which this was to occur would not? If there is to be any required link to the wrongdoing, it would be more logical for it to be of a general nature. An obvious possibility would be the same requirement as for the respondent, ie sufficient involvement in the wrongdoing. This is supported by the subsequent Arab Satellite case, considered below, in which Mr Justice Underhill said that it had been clear that the intermediary in Ashworth had been mixed up (ie sufficiently involved) in the wrong. He appears to have distinguished the case (in part at least) on that basis when dealing with the possibility of relief that would identify a combined list of wrongdoers and innocents. However, there is nothing in Lord Woolf’s speech which suggests that the person to be identified must satisfy any such test (though on the facts there can be little doubt that the test would have been met). Moreover, the involvement threshold was designed to identify the category of respondents who could be subjected to the requirement to give disclosure, in circumstances where the law did not typically require a mere witness to cooperate. There is no logical reason why a similar constraint need be placed upon the category of persons who can be identified. They may have a legitimate interest in their privacy or in insisting upon confidentiality. However, such considerations are best addressed as part of the discretion. In a case where multiple Norwich Pharmacal applications might be required (as in Ashworth, as matters transpired), there will in practice be a requirement to show that the person to be identified by the first application is, like the first respondent, sufficiently involved in the wrongdoing. Without that element, no second application could be made. Accordingly, the first application has no real chance of leading to the ultimate identification, at least to the extent that it depends upon the success in the second. However, this is not the only situation in which relief might be contemplated. The third party, once identified, may be willing to assist. Alternatively, the identity of that innocent intermediary may be sufficient to reveal the ultimate wrongdoer, whether by reason of associations or following further investigation. A  different aspect of wrongdoing was addressed in Arab Satellite Communication Organisation v Al Faqih,73 which involved the application of the Norwich Pharmacal principles to a situation in which the wrongdoing was sufficiently clear but the list of names to be identified would include others, not just the alleged wrongdoer.74 There was no question here of an innocent intermediary but the two scenarios share some features. The Arab Satellite Communication Organisation was an inter-governmental organisation owned by the member states of the Arab League and it operated four communication satellites broadcasting principally to Northern Africa and the Middle East. The satellites had been used to send transmissions of programmes originally created by the defendants, the association ‘Movement for Islamic

73 [2008] EWHC 2568 (QB). 74 There is a separate line of authority which deals with identification by the wrongdoer of innocent parties. This area is described in Ch 16.4.

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Reform in Arabia’ (MIRA) and its director. It was alleged that the transmissions were unauthorised. Proceedings were brought. In its defence, MIRA and its director acknowledged that they had produced the programmes but denied responsibility for transmission, referring to certain unnamed ‘sponsors’. The applicant made a request for further information to identify those sponsors. In response, the defendants served witness evidence that their sponsors and supporters would face harassment and even torture by Middle Eastern governments if identified. The evidence further explained that opportunities to broadcast via commercial providers had been diminishing due to pressure from the government of Saudi Arabia and jamming practised by that government. Although the defendants had been aware of the particular broadcast, they asserted that they had not been involved in arranging the broadcast and that they believed that space had been obtained legitimately, as had always been done in the past. The director had been contacted by a group of individuals who had given no names. He said that he was not aware that any of his past sponsors were involved on this occasion. The defendants denied having any documents of the types sought (ie communications with sponsors relating to dissemination of programmes) and thus the sole issue related to the identity of those involved.75 An order was granted by the Master in terms extending to the identity of those who ‘may have been involved in any way’ in the arrangements, insofar as known to the defendants. This order was then appealed to a judge. The application proceeded on Norwich Pharmacal principles, rather than under CPR 18 (further information). The judge, Mr Justice Underhill, recorded that he must therefore approach the matter on the basis that the defendants were innocently mixed up in the wrongdoing of others. He rejected the ‘may have been’ wording in the Master’s order as too imprecise, requiring subjective judgment.76 The real issue therefore became whether the defendants should be required in terms to provide information about past sponsors.77 It had been argued that the ‘overwhelming likelihood’ was that those responsible on this occasion were amongst the past sponsors.78 The judge rejected such an order. It would require the identification of a group of people which, at best, may include the culprit.79 The judge recorded that there was ‘no more than a probability’ of the right name being on the list (noting that unauthorised use of the applicant’s satellites would be a change of modus operandi) and, even if it was, that there might be no way to pick out the right name (the defendant having made clear that he knew only some information about some sponsors).80 He concluded that, on the evidence, he could not say with reasonable certainty that any, let alone all, of them would be the alleged tortfeasors. Norwich Pharmacal should not give applicants a licence to fish for information. The judge was also mindful that the past sponsors had been 75 76 77 78

[2008] EWHC 2568 at paras 13–14. Ibid at para 18. Ibid at paras 19–24. The defendants had said that they did not know who had been involved on this occasion and, if the applicants were sceptical, they could pursue this in cross examination at the ultimate trial. 79 [2008] EWHC 2568 at para 20. 80 Ibid at paras 21–22.

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exercising freedom of expression and that to breach confidence would require ‘very good reason’ to believe that they had been acting unlawfully. In view of his other conclusions, the judge did not need to deal with the issue that Article 10 ECHR would have been engaged since a disclosure order would have had a chilling effect on freedom of expression.81 The judge emphasised that he was not saying that there could never be a case in which an order would be made to identify a small pool of potential wrongdoers and innocents, in particular perhaps where the applicant could show that he had the means to ‘sort the sheep from the goats’.82 Such a case would ‘certainly be at the very limits of the jurisdiction’.83 The judge referred to, and relied upon, Ashworth. However, if the analysis in the preceding section is correct, that case provides no obstacle in principle to identification of an innocent person, provided that this will assist in leading to the ultimate identification of the wrongdoer. If an innocent person can be the only name on the list, there can be no objection in principle to such a person being included as one of several names. Against this, it may be argued that Ashworth was dealing with the identification of someone who was at least involved in the wrongdoing, if not in fact a wrongdoer. This interpretation has been considered above and rejected. On that basis, the critical issue would be whether provision of the list would assist in the ultimate identification of the wrongdoer. That question could only be answered by considering the means available to the applicant to distinguish between those identified. At one end of the spectrum, one might expect that objective criteria could be revealed as part of the application. The case could then proceed on the basis that an arguable case needed to be established against each name revealed by those objective criteria. For example, in Golden Eye (International) v Telefonica UK,84 the application was for disclosure of account holders who could be linked to what appeared to be infringement by downloading films. A variety of counter-arguments was possible but would depend upon the particular circumstances of each of the many targets. By contrast, in Arab Satellite the only link between those who would be identified and the arguable wrongdoing was the possibility that the person was someone (unknown) with whom the respondent had dealt previously. There did not appear to be any objective criteria which the applicant or anyone else could apply to distinguish amongst the names. If names had been revealed, it would seem likely that any resulting claim could (if brought in England) have been summarily dismissed. It is possible to imagine circumstances in which it is hard to develop the right objective criteria, even if they exist. For example, further investigations may be 81 He also proceeded on the basis that sufficient wrongdoing had been shown, though there was an issue both as to whether the action would constitute a trespass and whether access might have been legitimately acquired. The judge said that, if necessary, he would have taken into account that this was not an ‘open and shut case’: para 29. 82 [2008] EWHC 2568 (QB) at para 25. 83 The case of P v T [997] 1 WLR 1309 had been relied upon to show that disclosure could be ordered without there necessarily being a cause of action (and thus, by extension, could be ordered to reveal a list including names against whom there might be no cause of action). The judge cited Rimer J in Axa in which he cautioned against treating that case as a general extension. 84 [2012] EWHC 723; see Ch 10.2.4.

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required, perhaps to cross check times and dates or to explore with witnesses whether there is any corroborative information in relation to some of the names, which might be sufficient to support relevant inferences. In some cases, it may be that privacy and other considerations are readily outweighed and that a court can be satisfied that even a long list should be revealed. This will typically be appropriate where the applicant has given sufficient details of the proposed investigations that will follow relief and has been able to satisfy the court both that those investigations have a real chance of reaching the ultimate objective of identifying the wrongdoer and that objective criteria cannot be produced in advance of those investigations. A  regime to protect confidentiality might be developed, at least as regards those whose names can be discarded from the search.85 However, there will be other cases where privacy and confidentiality cannot be outweighed, particularly given the degree of speculation as to the likely success of any investigations. It is suggested that Arab Satellite is properly seen as one such case. There were significant sensitivities given the political activities of those who would be identified, which raised issues as to freedom of speech and fear of oppression. Moreover, no basis had been established for separating sheep from goats.86 This would suggest that there should be no bar in principle preventing disclosure of identities of those who are innocent, but that their innocence will weigh heavily in the discretion. Some support for such an approach may be derived from the case of Brady v PKF.87 The case concerned an allegation that telephone records had been obtained improperly. The judge ordered broad relief (partly by consent) which included the identity of any person that the respondent knew or had reason to suspect fell within certain categories. Those categories included many who might well have been personally innocent. For example, they included anyone ‘involved in’ obtaining the telephone records, anyone who had ever had ‘indirect possession’ or who had handled them. The final order also included anyone who was retained or employed to investigate the bid. In the RFU case, the Supreme Court listed, as factors relevant to discretion, whether relief might reveal the names of innocent persons as well as wrongdoers and whether innocent persons would be harmed. The Arab Satellite case was not cited. Rather, the proposition was supported by a passage from Lord Reid in Norwich Pharmacal88 and by Lord Cross in Alfred Crompton Amusement Machines v Customs and Excise Commissioners (No 2).89 Lord Reid’s statement in fact deals with the standard of proof. His conclusion was that the risk of the traders being innocent was ‘so remote that it can be neglected’. The Alfred Crompton case was (on this point) about public interest immunity as regards documents obtained by the commissioners from third parties under a statutory investigative power. In weighing the public interest, the court noted that the third parties from whom information had been obtained ‘would very much resent its 85 See Ch 11.3.2 below. 86 See S Paterson and A Fitzherbert ‘From Guantanamo Bay to outer space: developments in Norwich Pharmacal relief’ (2010) 29 CJQ 38 at 44. 87 [2011] EWHC 3178. 88 [1974] AC 133 at 176 B-C. 89 [1974] AC 405, 434.

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disclosure’. Identifying the third parties would potentially cause them harm, which could not be said of any trader in Norwich Pharmacal who, in fact, turned out to be innocent. Nonetheless, these two cases, though drawn from different areas, illustrate the broader principle that the courts will be cautious when the relief will or might reveal innocent parties.

7.6  POSSIBLE WRONGDOING – STANDARD OF PROOF A number of issues arise concerning what might be termed possible wrongdoing. Chapter 6.2 dealt with cases concerning the missing piece of the jigsaw. It was seen there that, even though a piece may be missing, relief is available in appropriate circumstances. A broader question arises as to the standard of proof required for the wrongdoing threshold. It is settled that wrongdoing does not always need to be proved on the balance of probabilities; something less is sufficient. The threshold now seems to be that a ‘good arguable case’ is required. This was the conclusion reached in Ramilos v Buyanovsky,90 rejecting the higher ‘much better of the argument’ gloss that had been imported from the context of jurisdiction. In Ramilos, the ‘good arguable case’ threshold was said to be the same as for a freezing injunction, citing the following from Mustill J (as he then was) in The Niedersachsen: ‘a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50 per cent chance of success.’91 As had been suggested in the first edition of this book, the rejection of the higher jurisdictional gloss is to be welcomed. However, one may question whether the threshold should be as high as a ‘good arguable case’, particularly if the missing piece of the jigsaw cases are to be accommodated. In Ramilos, the Mr Justice Flaux rejected any lower threshold, regarding P v T as an exceptional case and concluding that the ‘missing piece’ cases did not require a lower threshold. In particular, the judge considered that the Court of Appeal in Axa envisaged the missing piece being needed to perfect the cause of action, meaning that there would already be a good arguable case in those circumstances. Before commenting further upon the current formulation, it is instructive to consider how the requirement has evolved over time. In Norwich Pharmacal itself, Lord Kilbrandon expressed the principle in terms of applicants who ‘bona

90 [2016] EWHC 3175 (Comm). 91 [1983] 2 Lloyd’s Rep 600 at 605. See Ramilos at para 14.

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fide believe’ that their rights are being infringed.92 Phrases such ‘prima facie evidence’93 or ‘more than mere speculation’94 appear in the cases.95 This came to be expressed by reference to the need for an ‘arguable case’, an expression first employed in Mitsui v Nexen, in which Mr Justice Lightman reviewed the authorities and proposed a three-stage test, which was adopted in a number of subsequent cases.96 His three-stage test included as its first limb ‘a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer’. The precise origin of the ‘arguable’ alternative is not mentioned. The judge listed a number of cases but did not specifically derive this principle from any of them. He referred to P v T, albeit in support of the proposition that disclosure extended beyond tortious wrongs. He then cited Axa, Kalmneft and Carlton (which, in turn, had relied upon P v T) as authorities for the proposition that relief can be granted where the claimant requires disclosure of crucial information in order to be able to bring its claim or where the claimant requires a missing piece of the jigsaw. This combination of authorities seems to have been represented by the label ‘arguable’.97 Prior to P  v T  there had been little consideration of the standard of proof required. In Lonrho v Fayed (No 2), Mr Justice Millett had said that the applicant failed to meet the prerequisite of being able to demonstrate ‘a prima facie cause of action’ against the person whose identity was sought.98 In Louis Feraud v Unico,99 Mr Justice Lindsay had refused relief on a number of grounds. One of them, derived from Norwich Pharmacal itself, was that a ‘clear and perhaps compelling case on the evidence’ needed to be shown as to wrongdoing. The case concerned trademark infringement and the judge noted that there were routes by which the alleged wrongdoer might have received the garments in question without there being any wrong. In Jade Engineering v Antiference,100 Mr Justice Jacob dealt with an application for disclosure of the identity of the supplier of particular machines to the respondent. He concluded (without citing Louis Feraud) that there was an ‘arguable case’ that the supplier was a joint tortfeasor (with the respondent) and that the case therefore fell squarely within Norwich Pharmacal: there was ‘material upon which it is possible that the plaintiffs may have a cause of action against the unknown supplier’.101 92 [1974] AC 133 at p 205G. The reference has been relied upon in the formulation of the test in Canada. Lord Kilbrandon had cited Colonial Government v Tatham (1902) 23 Natal LR  153 in which the test had been summarised in this way. Much of the principal judgment (Bale CJ) deals with cases involving discovery between the parties, though Orr v Diaper was mentioned as were Dutch law authorities. The test of a ‘bona fide claim’ (appearing in both substantive judgments) is not ascribed to any particular authority. 93 Smith Kline [1986]  RPC  394 (1983) Kalmneft [1992] 2  All ER  911, RCA  v Reddingtons [1974] 1 WLR 1445 referred to ‘strong prima facie case’. 94 Arsenal v Elite (Geoffrey Vos QC), [2002]  EWHC  3057 (QB) in partial reliance upon Murphy v Murphy, [1999]1 WLR 282. 95 See also Omar v Omar [1995] 1 WLR 1428. 96 [2005] EWHC 625 (Ch). 97 All of the cases are considered in Ch 6.2 above. 98 [1992] 1 WLR 1 at 13. There was ‘not a scrap of evidence’ (p14C) supporting this. 99 [1996] CLC 122. 100 [1996] FSR 461. 101 Another early decision which had allowed relief where the infringement had yet to be established was Lagenes v It’s At (UK) [1991] FSR 492.

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In Coca Cola Company v British Telecommunications,102 Mr Justice Neuberger was dealing with a more conventional application. The applicant in an infringement case had brought proceedings against one party, who had made allegations that another was involved. The applicant wished to join this person as an additional party. All that was known about him was his name and mobile telephone number, which was ex-directory.103 The applicant therefore sought disclosure from BT of his address. The judge considered P v T and concluded that ‘it is enough, in certain cases at any rate, that the plaintiff has a good and honest reason to believe that a tort has been committed’. He considered that the evidence against the additional wrongdoer was ‘rather thin’ but sufficient to satisfy this limb of the test. Nonetheless, a higher standard was apparently applied in the Mersey Care NHS  Trust v Ackroyd series of cases, which were the sequel to Ashworth. When MGN ultimately revealed the intermediary following the House of Lords judgment, it revealed only the name of a freelance journalist, Mr Ackroyd, who refused in turn to disclose his source. Ashworth, which had by then become part of the Mersey Care NHS  Trust, applied for similar relief against Mr Ackroyd. After summary judgment had been granted and then overturned on appeal,104 the case proceeded to trial.105 On the issue of wrongdoing, Mr Justice Tugendhat concluded that wrongdoing must be established in the normal way and ultimately determined that ‘in my judgment, on the material before me and the balance of probabilities, there was no public interest justification for the disclosure which was in fact made by the source’.106 He nonetheless recorded the practical difficulties in requiring that the wrongdoing be established on the balance of probabilities where, as before him, the substantive defence (that there was a public interest justification for disclosure), would depend on evidence from the source.107 However, though he had concluded that there had been wrongdoing to the requisite standard, the judge ultimately determined that he would not make an order for discovery of the source in view of section 10 of the Contempt of Court Act 1981. This was because there was no pressing need for disclosure in the circumstances as they appeared from the evidence at the trial, in January 2006, roughly six years after the original trial in Ashworth. This decision was then upheld on appeal.108 The Court of Appeal appears to have approved in passing the judge’s characterisation of the test on wrongdoing.109 However, there was no discussion of earlier cases such as Carlton, P v T or Mitsui.

102 [1999] FSR 518. 103 In the event, it transpired that the subscriber for the telephone was in fact the respondent’s wife: see Coca Cola v Mabe [2002] FSR 47. 104 Mersey Care NHS Trust v. Ackroyd [2003] EWCA Civ 663. 105 [2006] EWHC 107. This was the second trial. There had already been a trial in the original Ashworth case, an application for interim relief by way of disclosure having been refused. 106 [2006] EWHC 107 at para 157. 107 [2006] EWHC at paras 70 and 72–73. In the intervening section, the judge refers to a parallel difficulty in relation to whether consent might have been given to the source for disclosure. 108 [2007] EWCA 101. 109 Paragraphs 8 (as to the principles) and 68 (as to their application).

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The apparently higher standard applied by Tugendhat J  in Mersey Care does not appear to have been adopted in subsequent cases. In BNP Paribas v. TH  Global,110 the deputy judge cited the test set out in Mitsui and concluded that ‘the evidence discloses a reasonable basis for concluding that [the applicant] may be a victim of wrongdoing.’ In Clift v Clarke,111 Mrs Justice Sharp again cited the Mitsui test but accepted that it was put somewhat differently in the notes to the White Book at CPR  31.18.5 where the requirement is stated as ‘a wrong must have been carried out, or believed to be carried out.’ No authority is cited in that note for the proposition, but P v T had been referred to in court. Sharp J said that the distinction was not material but she would have been prepared to accept the lower threshold. The case arose in the context of an application to identify two users of a website, where the alleged wrongdoing was defamation. The threshold was apparently raised in Rusal v HSBC, another decision of Mr Justice Tugendhat, which imported the ‘good arguable case’ and, in particular, the Canada Trust gloss from a jurisdiction context. 112 This was not based upon a review of the authorities described above. Rather, the judge drew the parallel to jurisdiction on the basis that there too the court must necessarily reach a conclusion based upon an incomplete picture. As explained above, the parallel to jurisdiction has now been side-lined in Ramilos, preferring the test of ‘good arguable case’ used in a freezing injunction context (although this is still represented by the Mitsui formulation of a wrong ‘arguably’ carried out). Since the paradigm case will involve an imposition upon a third party, it is understandable why something more than merely arguable might generally be required. However, this may prevent relief from being granted, particularly for a ‘missing piece of the jigsaw’, in a case where relief might be warranted. For example, a prospective claimant may need to know one fact – for example whether the potential defendant passed a particular piece of information on to a third party. That might be obtained from the defendant by pre-action disclosure but, if that is not possible, it may be desirable to permit an answer to be obtained via Norwich Pharmacal, provided that is truly necessary and subject always to the exercise of discretion. In such circumstances it is counter-intuitive to weigh up whether, without the missing piece, there remains a ‘good arguable case’ or simply a good basis for suspicion which, if the information is revealed, could well become a ‘good arguable case’. Moreover, since it is established that relief can be granted when the prospects might be below 50%, one can question whether there is any need to require a particular merits threshold applicable to

110 [2009] EWHC 37. 111 [2011] EWHC 1164. 112 Canada Trust v Stolzenberg (No 2) [1998] 1 WLR 547 (Waller LJ at 558D–G, endorsed by Lord Steyn in the House of Lords at [2002] 1 AC 1 at 13H). The text was also endorsed by the Privy Council in Bols Distilleries v Superior Yacht Services [2007] 1 WLR 12 at 28. See also Cherney v Deripaska [2008] EWHC 1530 (Comm) at para 41; Sharab v Al Saud [2009] EWCA 353 at paras 21 and 40; and AstraZeneca v Albermarle [2010] EWHC 1028 (Comm); [2010] 1 CLC 715 at paras 24 to 30. See also the line of recent cases on the formulation of the test in a jurisdiction context, including (most recently) Goldman Sachs International v Novo Banco SA [2018] UKSC 34 and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA and Others [2019] EWCA Civ 10.

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all cases. The parallel to a freezing injunction may be better than the parallel to a jurisdiction application, but is hardly exact.113

7.6.1  Overseas authorities Canada Equitable disclosure based upon Norwich Pharmacal has been adopted in Canada, both in the Federal courts and in some provinces.114 For the most part, it has been regarded as operating in parallel with court rules governing pre-action disclosure. Although the Canadian authorities have developed in parallel, they have relied extensively upon English authorities, including P v T. Of interest for present purposes, the wrongdoing threshold has been preserved but is expressed in terms of whether there exists a bona fide claim.115 This test was adopted in Glaxo Wellcome v Minister of National Revenue’116 where it was derived from the speech of Lord Kilbrandon in Norwich Pharmacal.117 One case which considered this requirement was Kenney v Loewen, in British Columbia.118 A  bank decided not to retain the applicant in connection with defence against a hostile take-over bid for the respondent, apparently on the basis of information from a third party suggesting (inter alia) that the applicant was a spy. Saunders J noted that there were arguments about qualified privilege, thus requiring malice, concluding: ‘[35] The evidence before the court is, in my view, sufficient to establish a bona fide claim, or in the words of other cases, a valid claim of defamation. Mr. Kenney has the requisite subjective belief in the merits of his claim, based upon information which would objectively support the claim. I do not consider that at this stage of legal proceedings the plaintiff needs to meet possible defences the wrongdoer may raise should the action be started. I have concluded the first criteria is met.’

113 In the context of the pre-action disclosure under CPR 31.16, there is no threshold requirement for an arguable case Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585, though similar points may be raised in relation to discretion (at para 28). Compare Kneale v Barclays Bank [2010]  EWHC  1900 (Comm) in which Flaux J  considered that there was such a threshold (‘some sort of prima facie case which is more than a speculative “punt”’: at para 38), though it was a low one given that the purpose of the jurisdiction was to establish whether or not to bring a claim. 114 The leading cases are Glaxo Wellcome, below, a decision on facts similar to those of Norwich Pharmacal itself, and Alberta (Treasury Branches) v Leahy 2000 ABQB 575 (CanLII), a decision of the Alberta Court of Queen’s Bench, affirmed on appeal at 2002 ABCA 101 (CanLII), applied for example in Ontario in GEA Group v Flex-N-Gate Corporation 2009 ONCA 619 (CanLII). 115 See Glaxo and Leahy and the cases cited below. 116 [1998] 4 FC 439. 117 Reference was also made to the way in which a similar test had been imported in relation to Canadian rules of procedure, as in Re Johnston and Frank Johnston’s Restaurants Limited (1980) 33 Nfld & PEIR 341, a decision of the Prince Edward Island Court of Appeal under rules of procedure which (unusually in a Canadian context) allowed pre-action disclosure by Court Order from any third party. Lord Kilbrandon’s reference to a bona fide claim was cited. On the facts, the Court of Appeal concluded that there was no such claim. The principal basis for the decision was that the applicants knew the name of one wrongdoer and thus could bring proceedings against that person. 118 (1999) 28 CPC (4th) 179, Supreme Court of British Columbia. Cited with approval in Leahy.

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In the later Leahy case,119 Mason J in Alberta approved this reasoning, saying: ‘[154] The evidence before me plainly raises a bona fide, valid or reasonable case of bribery of Mr. Leahy. I agree with Saunders J.’s statement in Kenney v Loewen that at this stage of the proceedings, ATB need not meet possible defences Mr. Leahy and the WEM  Defendants have raised. I  also emphasize that it is not my task to make findings on the allegations – that is for trial.’

As can be seen, as well as focusing on a bona fide claim, the case also indicated that there would be no requirement to anticipate potential defences. This would, for example, avoid the need to deal with speculative issues as to the public interest defences that might be run in a breach of confidence case, leaving such issues to be addressed more directly under the separate principles applicable to journalistic sources. In Straka v Humber River Regional Hospital120 the Ontario Court of Appeal dealt with a missing piece of the jigsaw case. It concerned an application to obtain a copy of a reference provided by a known source. On the wrongdoing threshold, Morden JA concluded: ‘[52] If a narrow approach to determining the elements of an action for discovery were to govern this case, it would be difficult to say that a bona fide claim is asserted in this proceeding. The appellant does not know whether he has a cause of action against the reference-givers. It could be said that he is ‘fishing’ to find out if he has a case. I do not think, however, that he is engaged in ‘mere fishing’ (Axa Equity, supra). He does know that the letters damaged his opportunity of being appointed to the active medical staff at Humber. Although it is nowhere expressly stated in the material, it is obviously implicit in the appellant’s position that he is unaware of what facts could have given rise to these letters. He would like to find out so that he may take steps to clear his name through a legal proceedings if this should prove necessary. [53] On these facts, I  do not think that the appellant should be ‘non-suited’ because his claim is not a bona fide one, i.e. that his claim should fail because the threshold requirement of a bona fide claim has not been shown. As I have said, we are concerned with an equitable remedy the granting of which involves the exercise of a discretion. The general object is to do justice. Accordingly, I do not think that a rigid view should be taken of the elements of the claim. With this approach in mind, I think that it is reasonable to accept that sufficient bona fides has been shown to justify consideration of the case as a whole. The nature and apparent strength of the appellant’s case is a factor to be weighed together with the other relevant factors in arriving at the final determination of the claim.’

This was cited with approval in BMG Canada v John Doe,121 a Federal Court of Appeal decision dealing with alleged copyright infringement and an application against internet service providers. Sexton JA (with whom the other members of the court agreed) stated: ‘[34] In my view, it would make little sense to require proof of a prima facie case at the stage of the present proceeding. The appellants do not know the identity of the persons they wish to sue, let alone the details of precisely what was done by 119 2000 ABQB 575 (CanLII). 120 (2000) 51 OR (3d) 1. 121 2005 FCA 193 (CanLII).

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each of them such as to actually prove infringement. Such facts would only be established after examination for discovery and trial. The appellants would be effectively stripped of a remedy if the courts were to impose upon them, at this stage, the burden of showing a prima facie case. It is sufficient if they show a bona fide claim, ie that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons.’

The test was applied in Isofoton v Toronto Dominion Bank122 in circumstances which would, under English law, be regarded as a Bankers Trust scenario. The relief was granted ex parte. Spence J said that the test was that of a bona fide claim, ie  one which was not frivolous or vexatious. He noted that the higher standards required for other forms of interlocutory relief did not apply. A  higher standard is applied in cases involving freedom of expression and privacy. In this sphere, the test is whether there exists a prima facie case. In Warman v Wilkins-Fournier,123 the Ontario Superior Court explained that ‘a more robust standard is required to address the chilling effect on freedom of expression.’124

Jersey In Jersey, the test appears to be something lower than a prima facie case, based upon Lord Kilbrandon’s reference to a bona fide claim and Mr Justice Jacob’s reference in Carlton to the need for ‘reasonable grounds for supposing’ that there had been an actionable wrong.125

Hong Kong In Hong Kong, the threshold appears to have been set at an early stage as being a ‘prima facie case’. In Wellcome Foundation v Attorney General,126 Sir Derek Cons VP was reluctant to attempt a precise definition of what that phrase meant, but noted that ‘clearly the case must not be hopeless or just trumped up for the sake of the application’.127 He said that thoughts of American Cyanamid came naturally mind, which may have been a reference to the serious issue to be tried test. In the Wellcome case, the applicant sought details from the authorities concerning allegedly infringing imports. The cause of action depended upon knowledge on the part of the alleged infringer, which was ‘impossible of resolution to any significant extent’ without knowing the circumstances of the unknown importer. Nonetheless, relief was granted. This was followed in 122 (2007) 85 OR (3d) 780. 123 2010 ONSC 2126 (CanLII), Ontario Superior Court. 124 See also Morris v Johnson 2011 ONSC 3996 (CanLII). 125 Macdoel Investments v Federal Republic of Brazil, [2007]  JCA  69, a case which was principally concerned with the threshold for involvement: see Ch 8.5 below. 126 [1992] HKLY 567, unreported. The transcript is available via the website of Hong Kong Judiciary. The leading judgment was given by Sir Derek Cons VP, with whom Kempster JA agreed. Litton JA gave a judgment dealing principally with the breadth of relief. 127 See p 7 of the transcript.

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Axa China Region Insurance v Pacific Century Insurance128 where it was cited alongside P v T to support the propositions that it was unnecessary to establish that wrongful acts had definitely been committed. However, in the leading case of A Co v B Co,129 Ma J considered the balance between the breadth of the jurisdiction and its extraordinary nature. The earlier Court of Appeal authority in Wellcome was not cited; nor was Axa China. The judge laid down a number of requirements which have been often cited since, including that ‘there must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place.’ The judge did however also refer with apparent approval to P v T, saying: ‘As to the argument that the plaintiff is ‘fishing’ for information, it is to be borne in mind that to an extent, all applications for Norwich Pharmacal relief involve the plaintiff ‘fishing’ for information. That therefore cannot by itself be a ground of objection. It only assumes importance where the plaintiff is unable to demonstrate to the court’s satisfaction those factors I have referred to … above. In this context, I  draw attention to the case of P  v T  Ltd … in which a Norwich Pharmacal order was granted even though it could not even be ascertained without the information sought whether or not a third party had committed a tort against the plaintiff in the first place.’130

In Cinepoly Records v Hong Kong Broadband Network,131 the deputy judge distinguished between the need to show a wrong and the wrongdoer. As to the wrong, the applicant must establish that a serious wrong had been committed, as in A Co v B Co. However, as to the wrongdoer, the applicant needed to establish a bona fide case in the sense that the alleged wrongdoer ‘can reasonably be assumed to be the wrongdoer vis-à-vis the applicant’.132 The case concerned copyright infringement by P2P software and an application to identify users by their IP addresses. The judge concluded that there was sufficient basis to make the order notwithstanding the possibility that there might be multiple users of one IP address such that the registered user was not in fact a wrongdoer. Separately, it was established in Evergreen International Storage v HSBC133 that relief could be granted for a missing piece of the jigsaw. The deputy judge considered the English authorities, including P v T, Axa, Carlton and Mitsui, as well as the Jersey Macdoel case. She concluded that this was consistent with A Co v B Co because of the apparent approval given there to P v T, as quoted above. She emphasised that missing piece cases would be ‘exceptional and rare’: ‘… this is not to say that Norwich Pharmacal discovery to verify wrongdoing is to be lightly ordered. Orders for this purpose must by their nature be exceptional and rare. Although the applicant is essentially not in a position to show a prima facie case of wrongdoing and is acting on no more than a suspicion that wrongdoing may have been committed, such suspicion must be founded upon facts and circumstances which plausibly give rise to the suspicion and which the court can reasonably act on. In this regard, in P v T Ltd, in support of the 128 [2001] HKEC 931. 129 [2002] 3 HKLRD 111. 130 Paragraph 27(3) at 120F. 131 [2006] 1 HKLRD 255, Deputy Judge Poon. 132 [2006] 1 HKLRD 255 at para 19. 133 [2008] 5 HKLRD 49, Deputy Judge Lisa Wong SC.

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possible causes of action in defamation and malicious falsehood, Sir Richard Scott V-C  did have before him evidence that the unidentified third party had made an allegation of gross misconduct against the plaintiff and the plaintiff’s deposition on affidavit that he had done nothing that justified such allegation.’134

This test has been applied since, phrased in terms of whether there are ‘reasonable grounds for supposing’ that a wrong has been inflicted, reflecting Mr Justice Jacob’s words in Carlton.135 More recently, in Chang Wa Shan v Chan Chun Chuen136 Poon J quoted from his earlier decision in Cinepoly, which in turn quotes A  Co v B  Co. He then explained that the Norwich Pharmacal principle had been extended so that it did not just apply where the applicant could show that wrongdoing had been committed, but also applied where there was a prima facie case in the sense of being neither hopeless nor trumped up (citing Wellcome) or where the applicant has reasonable grounds to support his belief that a wrong has been committed (citing P v T). In that case, the applicant was able to show a prima facie case of defamation. The opposite conclusion was reached in Samuel Tak Lee v Yan Yan & Co,137 in which the material before the court was not considered sufficient to meet the requirement for ‘reasonable suspicion that there are alleged unknown or indeed other named wrongdoers’.

7.6.2 Conclusions It has been argued above that a low threshold should be required. The existence of a low threshold would be consistent with authorities in Canada, Jersey and Hong Kong. Two final comments are necessary. First, the discussion above has focused upon final relief. Relief may also be possible by way of interlocutory application as against the respondent. If (contrary to the above) a higher merits threshold is required for final relief, there would seem to be no reason to apply that same threshold to interlocutory relief, where a ‘serious issue to be tried’ should be sufficient on conventional principles. Second, the above discussion has dealt solely with the threshold. The merits of the case on wrongdoing may be one of many factors taken into account on discretion, an issue which is considered immediately below.

7.7  WRONGDOING AND DISCRETION Discretion is addressed in Chapters 10 and 11. For present purposes, however, it is relevant to consider the extent to which the strength of the case on wrongdoing

134 [2008] 5 HKLRD 49 at para 62. 135 Equatorial Mining v Mapletree, [2008] HKEC 1832, as described in Ch 6.2.8. 136 [2009] HKEC 1684, Poon J. 137 [2010] HKEC 1535, Deputy Judge Carlson, paras 22-23.

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may play a part in relation to discretion. The distinct situation of respondent wrongdoing is considered separately in Chapter 8.6. A preliminary question is whether it remains open to the court to consider the strength of the case once it passes the threshold of being arguable. In Norwich Pharmacal itself, Lord Cross said expressly that the ‘strength of the applicant’s case against the unknown alleged wrongdoer’ was one of the factors that should be weighed in deciding whether to grant relief.138 Since, at least in the paradigm case, wrongdoing will be determined in due course in the substantive proceedings, the court may be cautious about expressing views on the merits. There is a parallel here to one of the motivations for the American Cyanamid test. Lord Diplock there quoted Wakefield v Duke of Buccleugh139 in referring to the ‘great object’ of the court ‘viz. abstaining from expressing any opinion upon the merits of the case until the hearing’. The better view is that the courts should be able have regard to the strength of the case in a Norwich Pharmacal context. It would be surprising if lowering the threshold had meant that every case needed to be approached on the assumption that the case was no stronger than arguable, without any ability to differentiate further. That would require reconsideration of cases such as Norwich Pharmacal itself and Ashworth. The parallel to American Cyanamid is only partial since a Norwich Pharmacal application is not interlocutory in nature. Whilst caution may be appropriate as regards reaching a determination on factual questions, this applies with less force where the intended defendant is not even a party. The courts routinely assess the merits against higher thresholds in the context of, for example, freezing and mandatory injunctions. In Ashworth a strong case and true necessity combined to overcome the particular confidentiality and special sensitivity of disclosing a journalist’s source (including section 10). It may be questioned whether a merely arguable case would have been sufficient. By contrast, in Norwich Pharmacal, the strong case and necessity overrode statutory restrictions upon use of information. It is possible that an arguable case would have been sufficient in that context, just as it was in the different circumstances of Mohamed. A stronger case may help to tip the balance where the objections to disclosure are bound up with the strength of the case. For example, the supplier who seeks to protect genuine commercial sensitivity of his customers has a stronger objection if his customers are only arguable wrongdoers. Similarly, the recipient of a commercial leak (or the source) has a stronger argument if the source may in fact have committed no wrong. These are situations in which there is a substantial interest in opposing disclosure which would not carry the same force if wrongdoing could be established. The interest in protecting anonymity may exist in any event but will be all the stronger if no wrong has been committed. The weakness of the case was a relevant factor in one aspect of Murphy v Murphy.140 It has also been relevant in three cases involving allegations of

138 [1974] AC 133 at p199F. 139 (1865) 12 LT 628, 629. 140 [1999] 1 WLR 282 at 295D.

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defamation.141 The first was Totalise v Motley Fool,142 where Owen J  referred in the context of discretion to the existence of a ‘strong prima facie case’ of wrongdoing.143 This was referred to by Richard Parkes QC as deputy judge in Sheffield Wednesday FC  v Neil Hargreaves.144 That case concerned a request for disclosure from the individual operator of a website for fans. He concluded that the words in question were arguably defamatory but, in the exercise of his discretion, took note of the fact that some were ‘barely defamatory or little more than abusive or likely to be understood as jokes’. He reviewed each of the posts individually and allowed relief in respect of some, but not others. In each case he weighed the severity of the alleged statement against the right of the authors to maintain anonymity and to express themselves freely. Some he considered to be no more than ‘saloon bar moanings about the way in which the club is managed, rather than a serious indictment of grave mismanagement’.145 In the more recent case of Clift v Clarke,146 Mrs Justice Sharp refused relief, in the exercise of her discretion, where the claims based upon posts on the respondent’s website were ‘weak and marginal at best, and ones which are highly likely to fail’. It had been conceded that a wrong had arguably been carried out by those making the posts. This case, as well as the decision of Owen J in Totalise (referred to above), was cited in the Supreme Court RFU case as supporting the proposition that the strength of the contemplated cause of action was a relevant discretionary factor. Mention should also be made of the Smith v ADVFN series of cases. An individual obtained disclosure the identities of large numbers individuals who had posted what were alleged to be defamatory statements on the respondent’s bulletin board. That relief had initially been obtained ex parte and was sought in a rush given the imminent expiry of the shorter limitation period for defamation claims. A civil restraint order was ultimately made against the applicant.147 Many of the individual cases that were brought by the applicant were considered to be wholly without merit.

141 Note also Ontario Ltd v Stewart and The Globe and Mail 2012  ONSC  1991 (CanLII), Ontario Superior Court. The applicant sought to obtain information about the sources of newspaper articles which he alleged involved breaches of securities laws and would provide the basis for a class action. Belobaba J concluded that there were possible breaches: ‘not likely, far from probable, but certainly possible’: see paras 52 and 57. He was content to assume that this was sufficient to pass the merits threshold (he refused relief on other grounds) but noted that ‘I will assess the apparent strength of the applicant’s case when I am balancing the interests in the final step of the Norwich analysis’. 142 [2001] EMLR 29. 143 Not considered further in the Court of Appeal. 144 [2007] EWHC 2375 (QB). 145 See also the Hong Kong case of Oriental Press Group v Inmediahk.net [2012] 2 HKLRD 1004, in which the deputy judge cited Sheffield Wednesday and took into account the strength of the case, before concluding that relief should be granted as ‘otherwise, it would give the clearest indication to those who wish to defame others or maliciously publish false statements against others that they can do so with impunity as long as they do it behind the screen of anonymity on the internet’ (para 81), citing Totalise. 146 [2011] EWHC 1164. 147 [2010] EWHC 3255. See also [2010] EWCA 657.

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Bankers Trust In Bankers Trust cases, disclosure typically accompanies one or both of a freezing injunction or search order. Thus the substantive case will have been established to the higher threshold required. Nonetheless, there is an issue whether disclosure could be ordered under Norwich Pharmacal even if that higher threshold had not been established. It is suggested that there is no reason in principle why this should not be possible. However, the paradigm case involves seeking disclosure from a bank of account details. That information will be strictly confidential, a genuine interest that the target is entitled to protect. It is no surprise, therefore, that in practice the threshold has been set somewhat higher. This issue does not appear to have been addressed directly in any reported authority, though it seems that in many of the cases there was strong evidence supporting the case. This, rather than an attempt to define the minimum threshold, may account for references to ‘very strong evidence indeed’ and similar, which can be found in some cases.148 Other formulations suggest a lower threshold, including ‘good grounds’149 or ‘prima facie evidence’.150 In the original London and County Securities v Caplan case, Templeman J noted that he could not say at that stage whether or not the plaintiffs were right in their case.151 In the Arab Monetary Fund, Hoffmann J referred to the need to demonstrate ‘that the order is really necessary to preserve what may be the plaintiff’s assets or realistically lead to the discovery of such assets.’152 He later referred to a ‘real prospect that the information may lead to the location or preservation of assets to which he is making a proprietary claim.’153 This formulation is echoed by the Court of Appeal’s reference in Marc Rich v Krasner to the purpose of the jurisdiction being to ‘trace and protect the assets he claims.’154 Although not dealing directly with the wrongdoing threshold, these references suggest that a proper claim should be sufficient to pass the threshold, subject always to discretionary considerations.

148 Waller LJ in Bankers Trust [1980] 1 WLR 1274. 149 Lord Denning MR in Bankers Trust. 150 Robert Goff J in A v C [1981] 1 QB 596 at page 957F, where he noted that the affidavit evidence was sufficient to establish such a prima facie case but that whether the fraud was ultimately established would depend upon the evidence at trial. 151 Unreported, 26 May 1978, page 1F of the transcript. He noted at p7D-F that the relief was exceptional but that it was appropriate to safeguard the position until the true facts were known. 152 Quoted at p916 of the subsequent reported decision, [1992] 2 All ER 911. 153 [1992] 2 All ER 911 at p918f. 154 [1999] EWCA Civ 581, 15 January 1999.

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Involvement

This chapter deals with the second threshold requirement: sufficient involvement. That term has been adopted here to cover the various formulations that have been employed for this element, including involvement, facilitation, participation and being ‘mixed up’ in the wrong.

8.1  ORIGINS OF THE REQUIREMENT The House of Lords in Norwich Pharmacal was unanimously of the view that some form of involvement was required before discovery would be ordered. In other words, a mere bystander could not be forced to provide discovery, even where this would be necessary or would be the only way to identify the wrongdoer.1 The test was however formulated differently in each of the speeches. Lord Reid referred to the ‘very reasonable principle 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.’2 The reference to being ‘mixed up’ was derived from Upmann v Elkan.3 Viscount Dilhorne referred to ‘involve[ment] in the transaction’4 and appears to have used ‘participation’ as a synonym, mentioned on only one occasion of several. These two speeches have been referred to many times subsequently. The other speeches all distinguished the position of the commissioners from that of a mere bystander. However, they do not contain a statement of such general application. Lord Cross referred to the ‘nature of the relation which subsists or subsisted between the [respondent] and the persons the disclosure of whose names is 1

2 3 4

For the avoidance of doubt, the point is not the same as the ‘mere witness’ rule. The House of Lords considered that this had no application where discovery was the only way to identify the wrongdoer since otherwise there would be no trial and thus no witnesses. That logic would be sufficient to extend discovery even to a mere bystander, but the House of Lords limited the scope to those who were sufficiently involved. [1974] AC 133 at 175B. (1871-72) LR 7 Ch App 130. [1974] AC 133 at 188B.

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sought’, considering that ‘unwitting facilitators’ would be covered.5 Lord Morris said (albeit in an early part of his judgment, before his conclusions) that ‘at the very least the person possessing the information would have to have become actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information’.6 He concluded ultimately that the commissioners were not mere bystanders because ‘they become obliged to have active concern with, to acquire positive knowledge of, and to exercise certain powers in respect of, the affairs of traders and the movement of goods.’ Lord Kilbrandon concluded that disclosure could be ordered against the commissioners ‘in consequence of the relationship in which they stand … to the goods’ and suggested that the judicial discretion (as he put it) might in future be exercised by reference to tests of being ‘mixed up in the transaction’ or ‘stand[ing] in some relation’ to the goods.

8.2  SUBSEQUENT FORMULATIONS Although some uncertainty over the precise formulation and its practical effect has remained, the prevailing test appears to be cast fairly broadly. In the leading Ashworth case,7 Lord Woolf phrased the test in terms of ‘involvement’ (saying that participation added nothing) and noted that it was not a stringent requirement, though still a significant one.8 This appears to have been reinforced by recent authority, though a causal requirement (associated with the need for facilitation of the wrongdoing) has also featured in relatively recent cases. Of the main cases dealing directly with this aspect, the first of note is Koo.9 In that case, the Court of Appeal considered whether it was necessary for the respondent to have been ‘mixed up’ in the wrongdoing itself. The court concluded that this was not required.10 It was sufficient that the respondent bank held ‘gold which, in one sense at least, represents the refined gold’ that was the subject of the claim.11 The related ‘facilitation’ limb does not appear to have been challenged there. The conclusion was that disclosure could in principle be ordered against a bank operating an account into which the proceeds of the alleged tort had been paid. That is also consistent with the Bankers Trust line of authority where the bank is typically involved only in the sense of being an unwitting recipient of

5 6 7 8

[1974] AC 133 at 197B. [1974] AC 133 at 178H. See description in Ch 6.3.1 above. Compare the express powers introduced in Australia, both by the Federal Court Rules and in most individual state jurisdictions, which confer a general discretion upon the court to require a respondent to assist in identification, provided certain thresholds are met. Sufficient involvement is not a threshold requirement. See, for instance, Federal Court Rules (2011), r 7.22. 9 Koo Golden East Mongolia v Bank of Nova Scotia [2007] EWCA Civ 1443. 10 Cf Dubai Bank v Galadari (No 6) The Times, 14 October 1992 (CA), in which the jurisdiction was described as being available where a person has ‘assisted the commission of a wrong’ (according to the transcript) and it was noted that ‘in effect, it is a power to require an agent to disclose his hitherto undisclosed principal’. This would seem to be too narrow. 11 Sir Anthony Clarke MR (with whom Smith LJ and Pumfrey LJ agreed), at para 37.

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misappropriated funds. It suggests, consistently with Ashworth, that a broad concept of ‘involvement’ is to be preferred. However, there were signs of a more onerous requirement in Mohamed. The Divisional Court accepted that there was no requirement for a causal link between involvement and in the wrongdoing,12 but concluded that the appropriate test was whether the respondent ‘became involved in the wrongdoing (even if innocently) by facilitating the wrongdoing’. This conclusion was reached after reviewing previous authority. It appears to have added back a requirement for some form of facilitation. Whilst Mohamed did refer to facilitation, the focus in that case was upon the submission that had been made, though in fact withdrawn, that a causative link was a requirement. It might be said, therefore, that the court did not consider whether involvement alone would suffice. That was not necessary for its decision since even the ‘involvement by facilitation’ threshold was passed.13 The argument was made in Omar, but was rejected by the Divisional Court.14 That court concluded that in Norwich Pharmacal and Ashworth, the respondent ‘had in fact done something that in effect facilitated the wrongdoing’. That phrase ‘encapsulates the degree of involvement that gives rise to the duty to assist’. In other words, the test, as in Mohamed, should be ‘involvement by facilitation’.15 However, the Divisional Court considered that the respondent had facilitated the wrongdoing in both Ashworth and in Norwich Pharmacal and that this must have been the sense in which the phrase ‘involvement’ was used. This was despite the respondent intermediary in Ashworth being involved only after the wrong had occurred. The materials were initially passed to a freelance journalist who later passed on some of them to the respondent. The key factor was that the respondent newspaper had published the information which had been wrongfully obtained.16 Whilst there is a link between the respondent and the wrongdoing sufficient to be termed (albeit loosely) ‘involvement’ this would seem to stretch the concept of ‘facilitation’ of the wrong too far.17 The court referred to facilitating only ‘in effect’, in apparent recognition that this term adds little. A further example is provided by X v Morgan Grampian18 where the journalist had been a passive recipient of the confidential documents. Any publication was restrained by injunction. Lord Bridge’s conclusions did not depend upon the journalist having done anything to facilitate the wrong, for instance by 12 Mohamed [2008] EWHC 2048 (Admin), endorsing the late concession by counsel. This is referred to in Omar [2012] EWHC 1737 (Admin) at para 93. 13 In the Court of Appeal in related proceedings, Lord Judge CJ paraphrased the test in terms of ‘involvement or participation’: [2010] EWCA Civ 65 at para 31. 14 [2012]  EWHC  1737 (Admin). In the meantime, Aamer [2009]  EWHC  3316 (Admin) had been decided in the Divisional Court, applying (after citing Mohamed) a test of whether the respondent was mixed up or involved in the wrongdoing by facilitation. 15 The formulation in Campaign Against Arms Trade v BAe Systems [2007] EWHC 330 that ‘the third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered’ should not be followed. This appears to have been rejected in Mohamed because the remedy was intended to be flexible: para 70d. 16 [2002] UKHL 29 para 34. 17 The Court of Appeal did not separately consider involvement. Lord Phillips MR concluded that the intermediary and the newspaper were wrongdoers [2001] 1 WLR 515 (paras 63 and 64) and that they were ‘susceptible to suit on the ground of the same wrongdoing’ as the source (para 65). 18 [1991] 1 AC 1.

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encouraging disclosure. He (and thus the House of Lords) concluded that there was sufficient involvement from the moment of receipt of the documents.19 It would be surprising if it was necessary to read this as an instance of facilitation. It is suggested that both this authority and Ashworth could only be accommodated within such a test by giving facilitation such an attenuated meaning that it would become simply another synonym for involvement. The Court of Appeal rejected any additional requirement for facilitation in its recent Omar decision, though strictly obiter.20 Lord Justice Kay concluded that there might be a real difference between facilitation and involvement, noting that a person may be attempting to discourage or prevent a wrong. Such a person would not be facilitating the wrong and yet ‘I do not think that the Norwich Pharmacal remedy was intended to be put beyond his reach in such circumstances’.21 Kay LJ detected no insistence on facilitation in Ashworth.22 Against this background, the issue has been touched upon on a number of occasions in recent years. Most significantly, the issue arose in Various Claimants v News Group Newspapers,23 relating to phone hacking. An application was made by victims of phone hacking against the Metropolitan Police for disclosure of information obtained during their investigations. Whilst the newspaper had supported a prior application, on this occasion it opposed any relief. The Metropolitan Police Service (MPS) did not oppose. Mr Justice Mann considered that there was a sufficient basis to order disclosure and, in particular, concluded that MPS had sufficient ‘engagement’ with the wrong people. MPS was not merely a witness but had a duty to investigate and had volunteered some information, indicating that ‘it did so as a result of some sort of unspecified obligation (or feeling that it ought to)’.24 That is a broad interpretation of the relevant threshold, consistent with the emphasis upon flexibility.25 The opposite conclusion was reached on the facts in the Countess of Caledon case,26 where the applicant sought disclosure from the MPS relating to an investigation into an alleged healer/therapist. The applicant was interested in dealings between the healer and her daughter. As well as concluding that there was no relevant wrong, Mrs Justice Slade rejected the case on involvement. She distinguished the News Group Newspapers case on the basis that there was no 19 Though note Campaign Against Arms Trade [2007] EWHC 330 in which it was suggested that these conclusions were obiter as there was evidence that the journalist had in fact done more after receipt. 20 [2013]  EWCA  118, para  40. The Court of Appeal had rejected relief on the point of principle described in Ch 14, but then expressed its views on a number of supplemental issues that had been argued. 21 Paragraph 38. 22 Nor in certain passages in the Supreme Court in the RFU case, where Lord Reid’s speech mentioning facilitation had been cited in support of broader propositions: see para 39 of Omar. 23 [2013] EWHC 2119 (Ch). 24 Paragraph 55. Mr Justice Mann considered that the real question was whether the MPS was a mere witness and that expressions such as facilitation, participation and involvement had been used to identify instances where the respondent was not a mere witness, rather than as necessary ingredients: see paras 52-54. 25 Disclosure was also seemingly ordered against a Police Commissioner in ZAM v TFW (5 November 2015, unreported), providing the applicant with access to a laptop and mobile telephone seized from an arrested individual who was alleged to be defaming the applicant in breach of a prior injunction. The case note available on Westlaw records that the order was made on Norwich Pharmacal grounds by Mr Justice Tugendhat but does not address involvement. 26 Countess of Caledon v The Commissioner of Police for the Metropolis [2016] EWHC 2214.

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perceived obligation to provide information to the applicant. In addition, the investigation had not concerned the applicant directly. Public policy would generally favour preserving the expectation of confidence. It is notable that the MPS opposed disclosure in this case, whereas they had been neutral on the issue in News Group Newspapers. There have also been a number of cases emphasising that some involvement is necessary beyond simply holding potentially relevant information.27 A good example is NML Capital v Chapman Freeborn,28 where a charter broker trading with the Republic of Argentina was considered by the Court of Appeal not to be involved in any wrongdoing associated with attempts to avoid enforcement of prior judgments. In Santander,29 the requirement was also seemingly given a broad meaning when applied to requests for information about mistaken electronic payments. Mr Justice Birss concluded that the claim in unjust enrichment amounted to sufficient wrong and that, since the money was paid into an account at the recipient bank, that bank was sufficiently mixed up in that unjust enrichment to satisfy the threshold conditions.30 As has been pointed out,31 the ‘wrong’ would be the failure to repay and, aside from holding the money, the bank has no involvement directly in that wrong, suggesting a broad interpretation as to what suffices as involvement. The situation is comparable to the typical Bankers Trust scenario, save that the claim is a personal claim in unjust enrichment rather than a proprietary claim to recover misappropriated funds.32 It is also worth noting that the involvement threshold may exclude deserving cases. This has seen the development of an alternative in which proceedings are brought against persons unknown, with third party disclosure then being permitted under CPR 31.17. An example of this is provided by Werner v WX,33 where the claimant wished to bring proceedings against photographers for breaching a prior injunction but could not identify them. The claimant did have a vehicle registration and sought details from the DVLA. Norwich Pharmacal could not apply because the DVLA had no relevant involvement. The solution was that proceedings were brought against persons unknown and third party disclosure was then ordered under CPR  31.17 against the DVLA. Similarly, in Yates v Revenue and Customs Commissioners,34 proceedings were brought against persons unknown and HMRC was then ordered under CPR  31.17 to disclose employment records which, in the context of asbestos claims, would assist in identifying defendants.

27 Thus Hilton v D  IV LLP  [2015]  EWHC  2 in which HHJ  Pelling QC refused disclosure from a solicitor’s firm which had been instructed in relation to a tax challenge and which thus held documents that might be relevant. Also see Zantra Ltd v BASF plc [2016] EWHC 3578 (Ch). 28 [2013] EWCA Civ 589. See further Ch 7.3 above. 29 Santander v National Westminster Bank [2014] EWHC 262. 30 At para 31. 31 Master Matthews in a subsequent related case, Santander v Royal Bank of Scotland [2015] EWHC 2560 (Ch), in which he followed the prior decision but with misgivings. 32 For an analysis of proprietary restitution in the case of mistaken payments, see ‘The availability of proprietary restitution in cases of mistaken payments’, Cambridge Law Journal 74(3), November 2015 pp 534-567. 33 [2015] EWHC 1247. 34 [2014] EWHC 2311.

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In both of the above instances, the third party respondent was a public authority. There are similarities with the requests made of the police in relation to phone hacking, although those were accommodated within the Norwich Pharmacal regime through a broad concept of involvement. Two remaining structural issues require brief comment. First, an issue may arise as to whether the involvement (or facilitation) must be in the wrongdoing or in the transaction. This will in most cases be a distinction without a difference, though it is possible that the ‘transaction’ wording extends more broadly. As has been seen above, the various speeches in Norwich Pharmacal support both possibilities. In Aiyela, Hoffmann LJ expressed the test in terms of becoming mixed up ‘in the transaction concerning which discovery is required’.35 However, in Ashworth, Lord Woolf referred for the most part to involvement in the wrongdoing.36 This formulation appears to have become established and was used, for instance, in Mohamed and in many of the more recent cases cited below. No guidance can be obtained from the Court of Appeal in Omar. This is discussed further in Chapter 8.5 below, dealing with the standard of proof required for involvement. The second remaining structural issue concerns the interaction with the standard of proof required in relation to wrongdoing, discussed in Chapter 7.6. Thus the question is not necessarily whether the respondent was involved (in whatever sense) in wrongdoing, but rather whether he was sufficiently involved in relation to the facts which are sufficient to establish a good arguable case of wrongdoing. It may be objected that someone who is involved in something that is only arguably wrongdoing is not far removed from the mere bystander. He may ultimately be shown to have had no involvement at all in any wrongdoing. However, the connection, as explained above, has never required knowledge of the wrongdoing. As Lord Romilly MR put it in Upmann v Elkan (later relied upon in Norwich Pharmacal) ‘It is, in my opinion, a mistake to say that the person at whose order the goods stand can complain if a suit is instituted against him; it arises from the misfortune of his having a dishonest correspondent.’37 The same could be said now that a good arguable case of wrongdoing appears to have been accepted. The respondent’s misfortune lies in being involved with someone who is arguably a wrongdoer.

8.3  AGENTS AND EMPLOYEES If a company commits a wrong, then it might be said that at least some of the employees or managers of that company are sufficiently involved in the wrong to be subject to Norwich Pharmacal relief. There may be a counter-argument based 35 [1994]  QB  366. This was considered by Neuberger J  in Coca Cola v British Telecommunications [1999]  FSR  518. He reasoned that the different emphasis in the various speeches in Norwich Pharmacal might be explained by a difference between setting a general principle (Lord Kilbrandon) and application to the particular case (Lord Reid). However, he concluded that he was bound by Aiyela to consider whether the respondent had been ‘mixed up in the transaction concerning which discovery is required’. 36 [2002] UKHL 29 at paras 34 and 36. 37 See Ch 3.6 above.

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upon the fact that they were only ever involved as agents or as an emanation of the company and cannot be separately targeted. This issue arose in Harrington v North London Polytechnic.38 Students at the polytechnic had organised a picket to exclude the plaintiff from lectures because of his political affiliation to the National Front party. The plaintiff obtained an injunction against one individual (both personally and in a representative capacity on behalf of others involved in the demonstrations) restraining him both by himself and in combination with others from preventing the plaintiff from exercising his contractual right to attend lectures. A  further picket was nonetheless organised and a photograph was taken of those involved. The plaintiff applied for and obtained against the polytechnic an order for discovery of the identity of the individuals in the photograph. Several lecturers refused to comply with instructions from the polytechnic to provide the information. After a failed appeal by the polytechnic on a point of principle, a further order was obtained, this time against the polytechnic staff. On appeal, the Court of Appeal (in a judgment given by Lord Donaldson MR) upheld this further order on the basis that the servants of a corporation fell within an exception to the mere witness rule, on the authority of Dummer v Chippenham.39 The same applied to agents of a corporation. The court accordingly concluded that there was jurisdiction to make the order. It left open (and for the judge) whether there were discretionary considerations which would weigh against the order being made (ie leading to its discharge here). A rather different approach is suggested by one of the few cases to refuse relief for lack of involvement, Ricci v Chow.40 There, the Court of Appeal held that the secretary of an organisation was not sufficiently involved in publication made by that organisation. The case followed the assassination of the president of the exiled Seychelles National Movement, an organisation which had published an article alleging that the plaintiff had, with the ruler of the Seychelles, been involved in an earlier failed assassination plot. The defendant was the secretary of the SNM. The plaintiff brought an action in libel and sought by interrogatories information including as to the identities of the printers and publishers. The claim was struck out on the basis that there was no evidence that the defendant was in any way responsible for publication, but the judge nonetheless allowed the interrogatories as a claim for discovery. On appeal, Parker LJ said that the secretary had not unwittingly facilitated the perpetration of the libel and was not involved in its publication. This was despite

38 [1984] 1 WLR 1293. 39 (1807) 14 Ves Jr 245. See Ch  3 above above and, in particular, 3.1. As explained there, in the nineteenth century, there was a set of exceptions permitting a bill of discovery to be issued against some agents, including officers of a corporation. These exceptions were largely pragmatic and, by the end of the nineteenth century, opinion seems to have been set fairly strongly against them. For the most part, they were superseded by rules of court which, for instance, allowed a corporation to answer by its agents. This decline appears to have applied to of the pragmatic exception of which Dummer v Chippenham was part, apparently leading to its being superseded by new rules of procedure: Wilson v Church (1878). 40 [1987] 1WLR 1658.

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the fact that he was the secretary of the organisation.41 He was an observer only, akin to the bystander who is merely a witness. Being a member of the same organisation was not sufficient as the tort was committed by individuals rather than the organisation itself. Kerr LJ (the only other judge) gave a judgment in similar terms, specifying the test as involvement in the transaction. He also dealt explicitly with the argument that the old line of authorities42 dealing with officers of a corporation would apply by analogy. He rejected this argument on the basis that those authorities had been incorporated into RSC Order 26, rule 2 (allowing interrogatories to be administered to individual officers of a company) and that no principled basis had been given for extending Norwich Pharmacal. The issues do not appear to have been addressed in any cases since. It is suggested that the better approach is closer to Ricci v Chow. Whilst one would expect the application to be directed against the company in the first instance, there may be good reason for targeting the particular employee if, for instance, he refuses to provide the information to the company to enable the company to comply. In Harrington, the court did not deal with the question whether the lecturers were themselves sufficiently involved in the relevant sense. It is suggested that their status as lecturers would not be sufficient. It would be different if, for example, they had been involved in or had facilitated the pickets. There would then need to be consideration of whether it was appropriate to order disclosure, given considerations such as freedom of expression. In any event, it appears that employees can be targets for relief. In Kensington v International Congo,43 Mr Justice Gross ordered disclosure on Norwich Pharmacal principles44 against two employees, as well as against the companies for which they worked. There the allegation was not merely that those third parties had innocently facilitated the wrong, but that they had actively participated in the plan to avoid judgment. The case concerned the privilege against selfincrimination. The order was upheld on appeal.45

8.4 ILLUSTRATIONS It is clear that the test requires only limited involvement. In Norwich Pharmacal itself, it was sufficient that the Commissioners had control over the goods.46 It has been held to be sufficient that the newspaper respondent had been the

41 Parker LJ noted also that names of the executive committee were set out in the publication along with a correspondence address and thus he had considerable doubt that it was necessary to obtain the names from the defendant. 42 Principally, it seems, Moodalay v Morton. It seems that Wych v Meal had also been cited. These cases form part of the same line of authority as Dummer v Corporation of Chippenham, referred to in the Harrington case above. See further the discussion at Ch 3 above. 43 [2007] EWHC 1632 44 The application was made on Norwich Pharmacal principles and under the Senior Courts Act 1981, s 37 (para 7). Most of the reasoning however focuses upon Norwich Pharmacal relief (eg para 53). The judge did not ultimately state the basis upon which he made the order. The case was regarded by the Court of Appeal as having been made under Norwich Pharmacal (para 2 of the judgment of Moore-Bick LJ with whom the other members of the court agreed). 45 [2007] EWCA 1128. 46 See also the more recent example of On the Application of Pfizer [2007] EWHC 3137, unopposed.

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passive recipient of confidential information, even though it did not ultimately publish that information (because of an injunction);47 that the respondent was the intended, albeit passive, recipient of a leak;48 and that respondent newspapers disseminated the leaked information.49 Turning to other types of scenario, it has been held to be sufficient that the respondent law firm had been involved in incorporating the target company and witnessing documents for that target;50 that the respondent bank maintained an account to which credits had been made reflecting underlying gold (though not traceable proceeds);51 that the respondent law firm was involved in drafting documents which (unknown to the lawyer) formed part of the wrongdoing;52 that the respondent internet service provider provided the account used for arguable wrongs;53 and that the respondent website operator sold tickets that were alleged to have been wrongly marketed.54 Further examples related to the internet and social media are provided at Chapter 13.1 below. In another context, there was sufficient involvement by a law firm who instructed investigators who in turn instructed enquiry agents who appeared to have acted improperly.55 In addition, a settlor (who had retained a power of appointment) was found to be sufficiently involved in relation to rights arising under the trust he had settled, as well as another trust settled by his wife.56 In other jurisdictions, the Postmaster General has been required to identify the holder of a post office box;57 a provider of company secretarial services has been

47 X  v Morgan Grampian [1991] 1  AC  1. Though it should be noted that Sedley LJ in Interbrew [2002] EWCA Civ 274 described as unpromising the submission that relief should be granted against the newspapers even if they had not published. He suggested that this may act as an incentive to publish regardless. See [2002] EWCA (Civ) 274 at para 29. A different view was taken by King J in Campaign Against Arms Trade [2007] EWHC 330 (QB) at para 13. 48 Campaign Against Arms Trade [2007] EWHC 330 (QB). The judge also considered that returning the offending email with name and address details removed constituted sufficient facilitation. This appears circular: it depends upon establishing that there was an obligation to reveal the names and addresses, the very conclusion which it appears to be invoked to support. 49 Interbrew v Financial Times [2002] EWCA Civ 274. 50 Kalmneft, [2002] 1 Lloyd’s Rep 417. 51 Koo Golden East Mongolia v Bank of Nova Scotia [2007] EWCA Civ 1443. The complicated facts are summarised in Ch 14. The wrong alleged related to dealing with property without consent and there was no objection in principle to an order being available against someone who held an account which contained the actual proceeds of the sale. This case was somewhat more complicated as there had been no sale but, rather, the Nova Scotia bank held the quantity of gold that represented the original unrefined gold. The court concluded that in principle Norwich Pharmacal relief would be available. 52 Rusal [2011] EWHC 404 (QB). 53 Media CAT v Adams [2011] EWPCC 6 and Golden Eye [2012] EWCA Civ 1740. See also the simpler example of Grant v Google [2005] EWHC 3444 (Ch). 54 RFU v Viagogo [2011] EWCA 1585; [2012] UKSC 55. 55 Hughes v Carratu International [2006] EWHC 1791. No point on involvement appears to have been argued. The case involved the overlap between Norwich Pharmacal and CPR  31.16 (pre-action disclosure). 56 Murphy v Murphy [1999] 1 WLR 282. This is considered in Ch 7.4 above. 57 Easey Garment Factory v The Attorney General [1980] HKLR 18. The report records (at 19) that the box was being used ‘in order to pass off goods as the plantiff’s’, ie suggesting that the box was part of the means by which the goods were passed off as those of the plaintiff, rather than being simply a contact address.

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held to be sufficiently involved in relation to wrongs of that company;58 as has a firm of accountants (and a provider of business services to those accountants) which was involved in setting up off-shore companies enabling a wrongful scheme to operate;59 as well as the provider of registered agent services.60 In the last case, the conclusion was expressed as follows: ‘Applying the law to the facts in this case, I am satisfied that the respondents by virtue of their very role in providing registered agent services to the companies, a role which is voluntary, cannot on any view be considered as mere onlookers. The companies that they formed are said to have been mere vehicles created for the purpose of defrauding the [applicant] Bank. The respondents, by incorporating and maintaining those vehicles thereby facilitated, albeit innocently, the commission of the fraud and as such were involved in the fraud perpetrated against the Bank … Registered agents and registered office service providers who are used by others to create and maintain for them corporate vehicles for the purpose of effecting fraud must expect that in due course the victims will come to them seeking discovery of the names and addresses and other information and documents that will enable the perpetrators to be discovered and the misappropriated assets traced.’61

In Coca Cola v British Telecommunications62 the application arose from the respondent’s business of supplying generic drinks syrups in containers bearing the applicants’ trademarks. The applicant had already brought proceedings against the respondent, who had in turn mentioned another person, for whom he had only a mobile telephone number. The applicant sought the address of that other person from the telephone service provider. Mr Justice Neuberger ordered the discovery on the basis that it was ‘very likely indeed’ that the use of the telephone in question was of considerable importance in the business conducted between the two individuals. He came to this conclusion with some hesitation, recognising that it involved taking a less strict view of being ‘mixed up’ than in Norwich Pharmacal. He concluded however that the House of Lords had not intended to say that the mixing up had to be as close and connected as it was in that case. Even taking the test as ‘involvement’, the decision appears to be marginal.63 The use of the telephone was only incidental to the wrongdoing, 58 See Secilpar v Fiduciary Trust [2003–04] Gib LR 463 in Gibraltar. This appears to be the position in Hong Kong, referred to in Long Beach v Nguesso [2007] EWHC 1980 at para 11 and, in Hong Kong, in Kensington International v ICS Secretaries [2007] 3 HKLRD 297 (see also [2008] 4 HKLRD 589, Court of Appeal ). 59 Danone Asia Pte v SB Chow & Co [2009] 1 HKLRD 470, Hong Kong. 60 Decision of the Eastern Caribbean Supreme Court’s Court of Appeal in JSC BTA  Bank v Fidelity Corporate Services Ltd, on appeal from the BVI. Case number HCVAP 2010/35. The application had been made against seven respondents and had been rejected at first instance. 61 JSC BTA Bank v Fidelity Corporate Services Ltd; para 27 of the judgment of Mitchell JA, with whom the other members of the court concurred. 62 [1999] FSR 518. 63 Compare Community Living Fort Frances v TBay Tel 2011 ONSC 2734 (Can 211), in which Fregeau J of the Ontario Superior Court considered an application against a telecommunications company for cell phone records, including text messages, between two individuals for the purposes of assessing whether employment policies had been violated by an improper relationship between them. The applicable test for ‘involvement’ was whether there existed a ‘relationship with [the company] such that [the company] is somehow involved in the acts complained of’. The judge concluded that ‘only applying this factor in its broadest possible sense’ could it be said that the company passed the test. Relief was in any event refused on other grounds.

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though it appeared to be the means by which deliveries were agreed. This is a borderline case which shares some similarities with internet service providers who make communication services available for use by customers. In Grant v Commissioner of Police for the Metropolis,64 an order was made against the Commissioner to disclose information about voicemail messages allegedly intercepted by certain newspapers. The judge noted that the Commissioner was ‘not in the traditional sense mixed up in the tort or wrongdoing’ but, since the matter had been conceded, he left the issue open (as he had done previously). In an ordinary situation, there would be no basis for arguing that the police had been sufficiently involved in the wrongdoing. However, it may be that the point was conceded in light of press commentary suggesting that the police might have investigated more thoroughly at an earlier stage. If the wrong could be said to have been ongoing, that would provide a basis for an argument that the police were sufficiently involved for these purposes. Orders have also been made to inspect the register or index of proprietors maintained by the Land Registry. Such an application was granted in Mortgage Corporation v Halifax, though the basis appears to have been an inherent jurisdiction.65 So too in Parkinson v Hawthorne, though the judge did not distinguish between CPR  31.17 (third party disclosure) and Norwich Pharmacal, both of which had been advanced as grounds for disclosure.66 This was a case where judgment had been obtained and efforts were being made to enforce.67 It is arguable whether simply maintaining the register will constitute sufficient involvement for Norwich Pharmacal relief. There is a parallel to Norwich Pharmacal itself where Customs held relevant information because of requirements for forms to be completed (though the Customs commissioners did also exercise some control in that they could refuse to allow the imports). Moreover, as outlined above, the involvement required for relief from a telephone company has been minimal These examples are to be contrasted with the classic mere bystander. Lord Reid, in the Norwich Pharmacal case, gave two examples. His first was a bystander who sees a road traffic accident and who takes down the registration of the car. His second was someone who holds a libellous letter written by another. Lord Reid said that neither could be required to disclose the identity of the wrongdoer, though his second example may need to be qualified where it was

64 [2011] EWHC 2177 (Ch). 65 Times Law Reports, 15 July 1998. The deputy judge appears to have relied upon Senior v Holdsworth Ex parte Independent (CA) [1976] 1 QB 23, a case concerning a subpoena duces tecum for production of film. Although the reference is not clear, it may be to the judgment of Lord Denning MR who (in the minority on this point) concluded that film could not be the subject of such a subpoena but could be the subject of an equivalent order made pursuant to the court’s inherent jurisdiction. (Note: the report at [1999] Lloyd’s Rep PN 159 referred to in Parkinson v Halifax is the judgment in the trial itself.) 66 [2008]  EWHC  3499 (Ch). The possibility of an order under Norwich Pharmacal was apparently contemplated in Re Branchempire [2010] EWHC 3017 (Ch), in reliance upon Parkinson v Halifax. The relief was refused on the basis of necessity. There was no discussion as to involvement. 67 See further the discussion in Ch 15.5 regarding further orders to render existing orders effective.

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not mere coincidence that led to the respondent holding the letter but part of the wrongdoer’s plan.68 Examples of cases where there was insufficient involvement include: an officer of a publisher who was not otherwise involved in the publication;69 banks in relation to alleged misrepresentations made in listing particulars when they had provided information but had not compiled the particulars;70 and a company which was the subject of a sale arguably involving a breach of non-solicitation provisions.71 In Hong Kong, an applicant sought disclosure from a bank concerning the payments in fact made under certain letters of credit issued by that bank.72 The applicant, who had been engaged to carry university uniforms to Iraq via a series of freight forwarders, believed that it had been the victim of a shipping fraud and that claims made against it by a sub-contractor, in Shanghai, did not properly reflect all payments received in respect of the uniforms. The judge dismissed the application on the basis that the alleged wrong was that false claims had been made in litigation. The bank had been involved in processing the sub-contractor’s claim under the letters of credit and in making payments thereunder. However, this did not constitute involvement in the making of the allegedly inflated claim. In reaching this conclusion, the judge rejected the submission that the alleged presentation of forged shipping documents to obtain payment was part of a single transaction with the making of the false claim.73

8.5  STANDARD OF PROOF In Rusal v HSBC, the court applied to involvement the same ‘good arguable case’ test that it applied to wrongdoing, together with the associated gloss of having the better argument.74 That gloss has been rejected in the context of wrongdoing and is unlikely to stand in the context of involvement.75 Of more significance, the Rusal case is in fact the first and only reference to a standard of proof as regards involvement.76 In Mohamed, the conclusion on this issue was that ‘on the basis that what was done was arguably wrongdoing,

68 Campaign Against Arms Trade, above. Lord Reid’s paraphrase in the subsequent paragraph is of ‘a person who has no other connection with the wrong than that he was a spectator or has some document relating to it within his possession’. Arguably, someone who receives a letter as part of the wrongdoer’s plan has a further connection aside from simply holding the letter. 69 Ricci v Chow [1987] 1 WLR 1658. 70 Axa 1998 PNLR 433. The position of the company was however different; it was ‘mixed up’ by virtue of the conduct of its director. See paras 21–22 of the judgment of Morrit LJ, with whom the other members of the court agreed. 71 An alternative ground for refusing the relief in Mitsui v Nexen [2005] EWHC 625 (Ch), para 39. 72 Evergreen International v HSBC  [2008] 5  HKLRD  49. The application was in fact made by an assignee from the original carrier. 73 [2008] 5 HKLRD 49 paras 67 and 71. 74 [2011] EWHC 404 (QB) parags 50–52 (as regards the principles, primarily as regards wrongdoing) and 99–109 (their application as regards involvement). 75 Ramilos v Buyanovsky [2016] EWHC 3175 (Comm). 76 There was no issue on this limb of the test in RFU v Viagogo [2012] UKSC 55. The conclusions reached in Omar [2013] EWCA 118 on involvement were given in a closed judgment.

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the [respondent] facilitated it in the manner and to the extent described’.77 This appears to be a finding applying the normal standard of proof, the balance of probabilities, albeit on the basis of an arguable conclusion on wrongdoing. The same can be said of Koo78 and Campaign Against Arms Trade.79 Moreover, in Mitsui, the test was stated in terms which (by contrast to wrongdoing) envisaged no softening of the standard of proof. The test was then applied, albeit as an alternative basis for the decision.80 To similar effect, the Bankers Trust line of authority appears always to envisage involvement, albeit that this will typically be satisfied by virtue of the respondent bank operating an account used by the defendant. That said, the Jersey Court of Appeal considered the issue in 2007 and, after reviewing the English authorities, concluded that the standard should be the same as for wrongdoing, a low threshold of something less than prima facie evidence.81 This conclusion was reached on the basis that the court could see no reason to require a higher threshold in this context than for wrongdoing.82 That is consistent with the approach taken in Rusal, albeit that the standard itself was somewhat different. In the field of post-judgment orders, it might also be said that a lower threshold has been adopted. As explained below, however, the leading case is in fact consistent with the analysis above, albeit applying a lower standard for the purposes of an interlocutory determination. The leading case of Mercantile Group (Europe) AG v Aiyela83 arose from attempts to enforce a consent order against Chief Aiyela. On the question of involvement, there was, according to Hoffmann LJ ‘prima facie evidence’ that the respondent had been mixed up in the arrangements made by her husband to defeat execution of the judgment. Steyn LJ referred to ‘evidence tending to show’ that the husband’s assets were held by the respondent. Sir Thomas Bingham MR recorded that the allegations were strongly denied by the respondent but that it was sufficient that they were ‘arguable’.84 However, these statements must be understood in the context of the issue that fell to be determined, which was whether the relevant jurisdiction had existed. This issue related to the original order made on an interlocutory ex parte basis. Similarly, in one of the Kensington International v Congo series,85 the judge referred to there being ‘good reason to believe that [the respondent] has been intimately involved in the trading of Congo’s oil and the in the plan to defeat execution of the judgment’ before ultimately concluding that he was sufficiently mixed up in events for Norwich Pharmacal relief to be granted.86 77 [2008] EWHC 2048 (Admin) para 91. More detail is given in paras 87–88 and (according to 86) in a closed judgment. 78 [2007] EWCA Civ 1443 para 37. 79 [2007] EWHC 330 (QB). paras 71–77. 80 [2005] EWHC 625 at paras 21 and 39. 81 Macdoel Investments v Federal Republic of Brazil [2007] JCA 69. 82 [2007] JCA 69 at para 50. 83 [1994] QB 366, see Ch 6.1 above. 84 This reflects the test applied by Mr Justice Hobhouse, who considered that the respondent was arguably a trustee for her husband in relation the money held at the bank: [1993] FSR 745 at 752. 85 [2006] EWHC 1848 (Comm). 86 [2006] EWHC 18482 (Comm) paras 14–17.

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Any difference in standard may be attributable to the fact that there is no clear differentiation in these cases between the wrong (or its equivalent) and involvement. As explained in Chapter 7.3 above, it appears that judgment alone is not enough and that there must be attempts by the judgment debtor to avoid execution. This is the ‘wrong’ or its equivalent, in which the respondent must be involved. If the plan or arrangements to avoid judgment are arguable, it is suggested that it should be necessary to demonstrate that the respondent was involved in that arguable wrongdoing. A different issue arises where there is a sufficient case of arguable wrongdoing by one of several routes, but the respondent would only be sufficiently involved in one of those routes. For example, it might be known that one of ten possible individuals had stolen money. The bank into which the money was paid would be sufficiently involved (as in Bankers Trust cases). If all of the ten individuals used the same bank, it could be said with confidence that the bank was involved, irrespective of which of the culprits had in fact stolen the money. However, if they each banked with different banks, the position is more difficult. In this scenario, each bank is involved only with one particular individual and not, at least not with any degree of certainty, with the actual culprit. There is no arguable case against each individual; it is the ‘wrongdoing’ as a whole which is arguable. A  conclusion that discovery could not be ordered would seem surprising. Involvement requires no knowledge on the part of the respondent and can extend to involvement in arguable wrongdoing rather than certain wrongdoing. The courts have generally sought to assist where, in the context of international fraud, there might otherwise be no remedy. Thus it would seem somewhat surprising that no relief would be available where there was involvement in at least one of the possible scenarios which, with others, amounted to arguable wrongdoing. That said, one might expect the relief to require disclosure of account details only if certain conditions were met, such as the receipt of a large sum around the date in question. An arguable case of wrongdoing against that particular account holder could then be said to exist. By contrast, such a restriction would prevent disclosure of confidential information belonging to those who were in fact innocent.

8.6  RESPONDENT WRONGDOER As has been seen in Chapter 7.1, relief can be granted where the respondent is or may be a wrongdoer himself, rather than the paradigm of an innocent party who has been mixed up in another’s wrong. Whether or not the respondent is a wrongdoer is not relevant to passing the thresholds for relief since all that is required is involvement, as described above. However, wrongdoing by the respondent may be a relevant consideration in exercising the discretion, at least to the extent that the respondent opposes the relief itself, rather than merely on behalf of the intended target. For example, if the respondent relies upon its own interest in commercial sensitivity or confidentiality then the fact that it is or may be a wrongdoer is likely to be a relevant consideration. Indeed, something of this nature is likely to be needed to override any substantial commercial interest of the respondent. 108

Respondent wrongdoer

The same should also apply if the respondent relies upon the inconvenience that will be involved in complying with any order. It may then be relevant that the applicant could bring (or has in fact brought) related proceedings against that respondent. If the information sought would be revealed on disclosure in those proceedings then the respondent has no real basis to object to the inconvenience. Even if the information would not be part of disclosure, it may be thought that an objection made by a wrongdoer, or even an arguable wrongdoer, will weigh less heavily. The relevance to discretion of respondent’s role in wrongdoing is supported by the speech of Lord Fraser in British Steel where he stated: ‘Unless that principle [ie  the duty to assist] is excluded in the circumstances of the present case it would apply very aptly to Granada, who clearly became mixed up in what must have been the tortious act of the person who removed, and probably stole, confidential documents from [British Steel]. Granada could not even be said to have become mixed up ‘through no fault of their own’ as they received the documents from the informant knowing what they were and used them for their own purposes. Their position is therefore weaker than that of defendants who became involved in ignorance of the true position, as in the Norwich Pharmacal case and in the earlier cases of Upmann v Elkan and Orr v Diaper, in both of which the defendants were innocent importers or shippers of goods marked with counterfeit trade marks, or brand marks.’

This factor was also listed amongst the factors generally relevant on discretion in the recent RFU case.87 The discretion in cases involving a respondent wrongdoer is addressed in Chapter 10.1.2.

87 [2012] UKSC 55, judgment of 21 November 2012. Lord Kerr also cites Lord Lowry in X v Morgan Grampian [1991] 1  AC  1 at 54 where he refers to relief being available a fortiori against a joint tortfeasor. Lord Lowry’s words might alternatively be explained as a reference to one of the principal propositions derived from cases such as British Steel [1981] AC 1096 where, as Lord Willberforce said when speaking of the involvement threshold (rather than discretion), the case of a respondent who was potentially a wrongdoer was ‘a fortiori’ one in which the respondent was sufficiently mixed up in the wrong (p1171G).

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9

Necessity

This chapter deals principally with necessity. This is a test which has changed significantly over time, having initially been a threshold requirement, then a significant and distinct aspect of discretion and now arguably only a factor forming part of that discretion. It is to be distinguished from the statutory test of necessity required in cases involving journalistic sources, considered in Chapter 13.2. The analysis below traces the evolution of the test and its recent application. There is then a separate consideration of the legitimate objectives which have, at least until recently, been closely linked to necessity in the sense that relief was required to be necessary to achieve those objectives.

9.1  THE NECESSITY TEST The necessity test can be traced back to Norwich Pharmacal itself. There, as explained in more detail in Chapter 4, the House of Lords dealt with the rule that a mere witness could not be required to provide discovery. The House of Lords concluded that the rule had no application where there would be no trial without discovery. The point was not generally addressed in terms of necessity, but the substance appears the same. Lord Reid, for example, said that ‘if the information in the possession of the respondents cannot be made available by discovery now, no action can ever be begun’.1 Lord Kilbrandon said: ‘This may be the place to dispose of the ‘mere witness’ rule. It is settled, rightly or wrongly, that you cannot get discovery against someone who has no connection with the litigious matters other than that he might be called as a witness either to testify or to produce documents at the trial. We are not here in that territory. The defendant is not a mere witness, or any kind of witness, because the whole basis of the application is that, until the defendant has disclosed what he knows, there can be no litigation in which he could give evidence.’2

1 2

[1974] AC 133 at 174B. [1974] AC 133 at 203B (emphasis added).

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He referred to a Natal authority applying a test whether discovery was absolutely necessary to enable the applicant to proceed with a bona fide claim. In such circumstances, he reasoned, discovery was ‘necessary to the administration of justice.’ He later expressed his conclusion in the following terms: ‘In my opinion, accordingly, the respondents, in consequence of the relationship in which they stand, arising out of their statutory functions, to the goods imported, can properly be ordered by the court to disclose to the appellants the names of persons whom the appellants bona fide believe to be infringing these rights, this being their only practicable source of information as to whom they should sue, subject to any special right of exception which the respondents may qualify in respect of their position as a department of state.’3

The phrase ‘only practicable source of information’ is one that has featured significantly in subsequent developments. In 1980, the House of Lords decided British Steel v Granada, recognising that it was legitimate to seek Norwich Pharmacal relief not only to bring proceedings but also to prevent future wrongdoing or to obtain other forms of legal redress.4 The possibility of other forms of redress remains significant and is considered further below.5 For present purposes, the point of interest is that any requirement of necessity was extended to necessity for the purposes of such redress (not just for the purposes of proceedings). The House of Lords dealt only briefly with the point and did not use the language of necessity. Viscount Dilhorne, for example, reasoned that ‘without such disclosure [British Steel] would have been unable to secure any redress’.6 Lord Fraser said that he agreed with Lord Justice Templeman, suggesting that discovery ought to be available where necessary to enable justice to be done.7 The basic test had been formulated in terms of necessity by Lord Justice Templeman in the Court of Appeal. He summarised Norwich Pharmacal as follows: 8 ‘The decision in the Norwich Pharmacal case established that an innocent person who becomes involved in the actions of a wrongdoer may also be ordered to disclose the identity of the wrongdoer provided that disclosure is necessary to enable the victim to take proceedings against the wrongdoer.’

He concluded that: ‘B.S.C. [ie British Steel] need to establish the identity of their employee because innocent employees are under suspicion, because free and frank discussions between members of the staff of B.S.C. are inhibited, and because further wrongdoing either by the present disloyal employee or by other employees tempted to be disloyal in the future must be prevented and will be prevented if and only if the identity of the wrongdoer is disclosed. Granada do not suggest 3 4 5 6 7 8

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[1974] AC 133 p205G (emphasis added). [1981] AC 1096. The point has been reinforced since, as described below. See for example, Ashworth [2002] UKHL 29 and the cases in Ch 10.1.2. See Ch 9.2. [1981] AC 1096 at 1184A. [1981] AC 1096 at 1200G. [1981] AC 1096, Templeman LJ at 1131D and 1132F (emphasis added). This is a different point from the question of whether the so-called newspaper rule could be overcome, where the authorities also applied a test of necessity.

The necessity test

that B.S.C. have any practicable method of discovering the identity of their employee save the method of obtaining an order of the court that Granada shall reveal his or her identity.’

In other words, once the objective of seeking redress was accepted as legitimate, the counter-argument would be about other ‘practicable methods’ of obtaining the identity sought. This echoes the phrase used by Lord Kilbrandon in Norwich Pharmacal, although that passage was not specifically referenced in British Steel. Pausing there, this test of necessity was arguably a jurisdictional threshold at this stage, being the basis upon which the mere witness rule had been qualified. The extension in British Steel did not change that; it remained a qualification to the mere witness rule. Even where redress would not involve proceedings, this did not challenge that rule since there remained no prospect of proceedings without discovery of the identity. A parallel necessity test was introduced by the Contempt of Court Act 1981, section 10 of which was passed in response to British Steel v Granada. This provides (emphasis added): ‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’

Outside the sphere of press interests, the separate necessity test continued to be applied. In Lonrho v Fayed (No 2),9 Millett J had explained that the jurisdiction was ‘founded upon judicial necessity: its justification lies in the fact that the information would not otherwise become available’. The applicant had not shown that it had ‘no other means of ascertaining the identity’. Again, in P v T,10 the question was whether relief was ‘necessary to enable the plaintiff to bring an action’ and it was envisaged that relief would enable the plaintiff to bring those proceedings, whereas he would otherwise have no means of discovering the relevant identity.11 There were, however, other contexts in which necessity played little or no role. First, in Bankers Trust, discovery was ‘the only way of tracing the money.’12 Before that, in A v C, Goff J had referred several times to relief being ‘necessary in the interests of justice’ and had concluded that the relief was ‘necessary both for the purposes of the tracing claim and the Mareva injunction’. In other words, at this early stage in development, Bankers Trust cases also required necessity, albeit with a different threshold. Relief needed to be necessary for tracing. However, in Arab Monetary Fund v Hashim (No  5),13 Hoffmann J  phrased the test in terms of whether there was a ‘real prospect that the information 9 10 11 12 13

[1992] 1 WLR 1. [1997] 1 WLR 1309. [1997] 1 WLR 1309 at 1316-1318. [1980] 1 WLR 1274, Lord Denning MR at 1282. [1992] 2 All ER 911.

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[sought] may lead to the location or preservation of assets to which he is making a proprietary claim’.14 He considered that this test could be derived from the mere witness rule since without such discovery there would be no point in calling the third party as witness at trial since the determination of ultimate ownership may be frustrated by dissipation of the assets. His ‘real prospect’ test therefore took the place of any necessity requirement. In Kalmneft,15 Judge McGonigal applied that real prospect test in granting relief under Bankers Trust. He went further, however, and granted relief under Norwich Pharmacal on the basis that there was a real prospect that the relief (document disclosure) would assist in identifying the target as a wrongdoer. Necessity does not appear to have been considered in terms. Second, in Aiyela,16 the Court of Appeal had recognised post-judgment Norwich Pharmacal relief. Provided there was sufficient wrongdoing and involvement, the only question was whether the relief was just and convenient. There was no necessity requirement. This is linked to the conclusion that the mere witness rule had no application after trial. Third, Norwich Pharmacal had been used as a basis to order disclosure of more than identities, relying upon Lord Reid’s reference there to ‘full information’. This had been done in RCA v Reddingtons,17 without any reference to necessity.18 A  broader disclosure order was also made in Societe Romanaise19 where Mr Justice Millett considered that the relief should include ‘all information necessary to enable the plaintiff to decide whether it is worth suing the wrongdoer or not’. The existence of the cause of action was clear but there were commercial considerations as to whether it would be worth bringing a claim in Italy. These cases were cited with apparent approval in Axa by Rimer J (the point was not addressed in the Court of Appeal),20 though he concluded that disclosure was not appropriate in that case. The point of interest for present purposes is that Societe Romanaise invoked a necessity test in this connection, but in terms related to making a commercial decision rather than requiring something critical to the applicant’s ability to bring proceedings against the known wrongdoer. Fourth, there were cases in which the necessity test was not applied at all. In CHC Software21 (1992), the court was satisfied that the identities would assist in setting the record straight, which was determined to be a legitimate purpose. The court did not appear to consider necessity. These authorities established a somewhat complicated picture as to whether necessity was required and, if so, as to what exactly needed to be necessary. It is

14 [1992] 2 All ER 911 at 918f. 15 [2002] 1 Lloyd’s Rep 417. 16 [1994] QB 366. 17 [1974] 1 WLR 1445. 18 Goff J quoted the order sought but then recorded that it had been accepted that this was too wide and should be ‘limited to the names of persons and companies known to the defendants’. It seems that this was intended to qualify one phrase within the draft order such that it would still extend, though only in the case of such persons and companies, to providing dates of supply and exhibiting copies of documents relating to such supply. It was not to be limited solely to disclosing the names. This interpretation accords with that of Rimer J in Axa when commenting upon this case. 19 Societe Romanaise de la Chaussure v British Shoe Corp [1991] FSR 1. 20 [1998] 1 PNLR 433, [1998] CLC 1177. 21 [1993] FSR 241.

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suggested that the main thread linking them was the so-called mere witness rule. That rule and the associated necessity test remained at this stage a jurisdictional threshold for pure Norwich Pharmacal relief. By contrast, it played no such role in the Bankers Trust context;22 nor in post-judgment orders; nor in cases where the respondent was already before the court as a defendant, such as CHC Software and RCA  v Reddingtons. Of the cases mentioned above, only Kalmneft and Societe Romanaise cannot be explained on this basis.

9.1.1  The House of Lords in Ashworth As has been explained in Chapter 6.3, the House of Lords in Ashworth23 stated that the Norwich Pharmacal jurisdiction should not be stultified by the limits that had applied in its infancy. It has been suggested above that this case, certainly as applied in cases such as Mohamed since, removed jurisdictional issues of the nature addressed above, including the mere witness rule. In Ashworth, the House of Lords was dealing with a situation to which section 10 and thus the statutory test of necessity plainly applied. However, Lord Woolf summarised the discretionary aspect of Norwich Pharmacal as follows (emphasis added): 24 ‘36 It is not the only protection available to the third party. There is the more general protection which derives from the fact that this is a discretionary jurisdiction which enables the court to be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances: see John v Express Newspapers … The need for involvement can therefore be described as a threshold requirement. The fact that there is involvement enables a court to consider whether it is appropriate to make the order which is sought. In exercising its discretion the court will take into account the fact that innocent third parties can be indemnified for their costs while at the same time recognising that this does not mean there is no inconvenience to third parties as a result of becoming embroiled in proceedings through no fault on their part.’ ‘57 The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. 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 not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T (where relief was granted because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action).’

22 Although note that Hoffmann J nonetheless dealt with the mere witness rule when exploring the limits of Bankers Trust relief in Arab Monetary Fund. 23 [2002] 1 WLR 2033. 24 [2002] 1 WLR 2033 at 2042.

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One key aspect of the decision in Ashworth is that Lord Woolf seemingly downgraded necessity from a jurisdictional threshold to an aspect of discretion. Necessity remained relevant, at least where section 10 applied, but was not one of the threshold criteria mentioned. The mere witness rule was no longer absolute. The other important aspect of Ashworth is that it appeared to establish just one test: whether relief was a ‘necessary and proportionate response in all the circumstances’.25 That would seem to be a generalised test in terms wide enough to cover section 10 but also sufficient to extend more broadly. Lord Woolf referred in this context to the case of John v Express Newspapers,26 which had concerned an attempt to obtain the identity of a source who had leaked a draft counsel’s advice to a newspaper. An injunction had been obtained to restrain publication. Lord Woolf MR gave the judgment of the Court of Appeal. He noted that, but for the fact that the case concerned a journalist’s source, this would have been an appropriate case for relief.27 However, in cases involving a journalist’s source, there was a ‘minimum requirement’28 that other avenues be explored and the chambers in question had not conducted an investigation.29 Lord Woolf reasoned that section 10 imposed a two-stage process of reasoning. He stated:30 ‘Section 10 imposes on the judge a two-stage process of reasoning. First, he has to decide whether disclosure is necessary in the interests of justice etc. If he is not so satisfied then he cannot order disclosure. If he is so satisfied, he still is left with the task of deciding whether as a matter of discretion he should order disclosure. The second stage involves weighing the conflicting interests involved; the need for disclosure on the one hand and the need for protection on the other.’

The second stage of the test involves weighing the competing interests.31 It would seem that the reference here is to the conventional discretionary test.32 There is no reference to this being guided by necessity in the sense used in previous cases.

25 Lord Woolf’s conclusion on s  10 is expressed, in para  66, in terms of the order being ‘necessary and proportionate’. In this context, that expression must be read to mean necessary for the purposes mentioned in s 10. 26 [2000] 1 WLR 1931. 27 Ibid at para 21. 28 Ibid at para 27, referring on this issue to Lindsay J in Saunders v Punch [1998] 1 WLR 986. 29 [2000] 1 WLR 1931 para 8. 30 Ibid at para 22 at 1938A. 31 See also Lord Justice Sedley in Interbrew v Financial Times [2002] EWCA Civ 274, stating that ‘… it must not be forgotten that to establish the factors required by section 10 to override confidentiality is to do no more than restore the jurisdiction initially invoked in order to obtain an order for disclosure. If within this jurisdiction there are distinct grounds, such as unclean hands or delay, for refusing an order, the judge in his discretion can refuse it. The s  10 bar will have been lifted, but other, discretionary, bars may still operate’ (para 48). He did not specifically refer to necessity. 32 The Court of Appeal in fact concluded ([2000] 1 WLR 1931 para 29) that the s 10 test had not been satisfied. It added that ‘even if it had been, the judge should have exercised his discretion to refuse disclosure’. This is difficult to reconcile with the earlier recognition (para 21) that the case would be an appropriate one for relief but for the issue of journalistic sources. It may be that this suggests the survival of a non-statutory restriction of the type addressed in British Steel v Granada.

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A  further point in Ashworth is the addition of proportionality alongside necessity.33 Lord Woolf noted that ‘the requirements of necessity and proportionality are here separate concepts which substantially cover the same area.’34 Proportionality appears to be derived from European case law concerning Article 10, which had been explored at some length by Lord Phillips MR in the Court of Appeal. He had noted there that the European Court required not only a test of necessity but also that the interference with freedom of expression should be ‘proportionate to the legitimate aim pursued’, citing Sunday Times v United Kingdom.35

9.1.2  Developments since Ashworth As described more fully below, the necessity element has been variously treated since Ashworth. There are some cases in which it appears to have played no significant role. It was then interpreted as a fairly high threshold in the Mitsui case, which appeared to impose a real constraint upon the availability of relief. However, the requirement was then softened by the combination of Campaign Against Arms Trade and, in the Divisional Court, by Mohamed. Most recently, there is an issue as to whether the requirement for necessity has been all but assimilated to the discretionary test, a development originating in the Privy Council decision in Equatorial Guinea. In late 2002, in Arsenal v Elite,36 the deputy judge granted alternative relief under Norwich Pharmacal without specifically addressing necessity, though he had cited Ashworth. In Carlton v VCI, there was no explicit mention of necessity as a requirement for relief, but the judge did reject the submission, made in the context of discretion, that waiting for completion of an audit of the books might provide another route to the information sought. He concluded that this was a dead end. He had earlier explained that VCI, the intended defendant, had made absolutely plain that they did not have records of dates of manufacture. However, at the end of his judgment, he considered the further point that the applicants already had enough to bring a claim and that disclosure would be available in the course of those proceedings. He rejected this submission but concluded that, even if true, it would have been a factor in favour of granting the disclosure. That decision, albeit expressed in the alternative, is only consistent with relief being possible on pragmatic grounds, not only where a case of absolute necessity can be established. Pausing there, it may have been thought at this stage that the old necessity test, linked to the mere witness rule, had been abandoned by Ashworth and replaced by a lower and more flexible test. There was then a series of cases which explicitly considered this ingredient. In Mitsui,37 Mr Justice Lightman

33 [2000] 1 WLR 1931 para 36. Note that this is not repeated in Lord Woolf’s subsequent paraphrase in para 57. 34 [2000] 1 WLR 1931 para 61. 35 (1979) 2 EHRR 245 at 278. See also 275–278. 36 [2002] EWHC 3057 (Ch). 37 Mitsui v Nexen Petroleum [2005] EWHC 625.

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considered whether Norwich Pharmacal could be used to obtain disclosure of a missing piece of the jigsaw. He concluded that it could in light of the flexibility supported by Ashworth, as illustrated by Kalmneft. In considering the applicable test he referred to paragraph 57 of Ashworth, quoted above, then said: ‘24. In my judgment despite the argument of Mr Carr that there is no authority directly in point, it is clear that the exercise of the jurisdiction of the court under Norwich Pharmacal against third parties who are mere witnesses innocent of any participation in the wrongdoing being investigated is a remedy of last resort. (It is the Claimant’s case that the Defendant is such an innocent third party.) The jurisdiction is only to be exercised if the innocent third parties are the only practicable source of information. The whole basis of the jurisdiction against them is that, unless and until they disclose what they know, there can be no litigation in which they can give evidence: see e.g. Lord Kilbrandon in Norwich Pharmacal and [sic] 203B and 205G. Whilst there is a public interest in achieving justice between disputing parties, there is also a public interest in not involving third parties if this can be avoided … The jurisdiction is both exceptional and only to be exercised when it is necessary: Lord Woolf CJ in [Ashworth]. The necessity required to justify exercise of this intrusive jurisdiction is a necessity arising from the absence of any other practicable means of obtaining the essential information.’ (emphasis added).

This appears to impose a fairly high threshold for necessity, requiring that relief should be the ‘only practicable means’ of obtaining the essential information and a remedy of ‘last resort’. The first of these ingredients was linked back to Lord Kilbrandon in Norwich Pharmacal, in the two passages quoted above. On the facts, the judge found that other procedures were available, notably CPR 31.16 (pre-action disclosure against an intended defendant). Thus these requirements were not met. In understanding what Lightman J might have meant by the phrases highlighted above, reference may usefully be made to his decision at first instance in Interbrew v Financial Times.38 He was there considering relief in the context of journalistic sources, but he used the similar phraseology (emphasis added): ‘the guiding principle is that an application for an order for disclosure against the press should be a recourse of last resort. The Court requires the claimant to go beyond establishing the pressing social need or exceptional circumstances: the claimant must also satisfy the Court that it should exercise its discretion to take the very serious step of granting the relief. The Court will not ordinarily be so satisfied if the information sought can be obtained in other ways. In John, Lord Woolf MR (delivering the judgment of the Court of Appeal) held that the failure to explore or fully to explore other avenues does not preclude the Court making orders against the press, but the failure can be a powerful, even a decisive, factor against the intervention of the Court. In Ashworth [in the Court of Appeal] at para 93 p.536c Lord Phillips MR stated that the claimant must show that all other means have been employed unsuccessfully to identify the sources, but John was not apparently cited in that case. As it seems to me every reasonable effort should be made by the claimant to explore other available avenues, but if in the course of exploring them it is apparent that there is no reasonable likelihood of their proving successful within a period that allows meaningful action to be taken by the claimant to secure protection of his legitimate interests, the Court

38 [2002] 1 Lloyd’s Rep 542.

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may intervene and grant the relief sought where it considers it necessary and just to do so without awaiting further developments.’39

After Mitsui, the next significant case was Nikitin v Richards Butler.40 The case concerned whether unlawful acts had been performed by private investigators during the course of ongoing High Court proceedings. The application was made against the private investigators and against Richards Butler, the solicitors said to have been involved in instructing them. Mr Justice Langley recorded that the relevant questions were ‘whether such information is vital to a decision to sue or an ability to plead and whether or not, even if it is, it can be obtained from other sources’ (emphasis added). He considered that relief under Norwich Pharmacal was the ‘third and last port of call’. The first port was disclosure by familiar procedures during the course of the substantive proceedings; the second was pre-action disclosure under CPR 31.16. Here, the claimants had sufficient to plead a case against the private investigators (a point that they acknowledged). Their submission was that they wanted also to find out the individuals who had been involved so that they could bring ‘one lot of proceedings at one time’. This was rejected. The judge reasoned that ‘I do not think this relief is intended to enable a victim of unlawful conduct to fine tune a pleading or to identify every person of whatever standing who may have committed an unlawful act.’ That information should become apparent during the course of proceedings.41 There was no justifiable explanation for why proceedings had not been brought already. The interpretation of necessity in these cases was challenged in Campaign Against Arms Trade.42 The applicant, a long established association engaged in campaigning against the arms trade, was proposing to bring judicial review proceedings relating to the decision of the SFO to discontinue investigations into alleged corruption in relation to contracts secured by BAe from the Saudi Arabian government. An email containing privileged legal and tactical advice to the applicant had been leaked to BAe. This had been returned, after details which might have revealed the source of the leak had been redacted, by BAe’s solicitors. The court proceeded on the basis that it had been read by BAe itself, if not its solicitors. The applicants sought information that would enable them to identify the leak so as to prevent further leaks. The applicant had conducted an investigation to determine the source of the leak but had been unsuccessful. A number of statements had been provided by the applicant outlining the steps taken. Further steps would have required access to computers maintained by third parties since members of staff were volunteers and thus made use of email systems belonging to others. This would have been costly. Cooperation from the respondent, BAe, would assist in focusing that 39 [2002] 1 Lloyd’s Rep 542 para 32(vi). 40 [2007] EWHC 173. 41 This line of reasoning was rejected by the Eastern Caribbean Supreme Court’s Court of Appeal in JSC BTA  Bank v Fidelity Corporate Services (Case 2010/035), preferring the test as formulated in Campaign Against Arms [2007]  EWHC  330 and considering that, on the facts, the trial judge had been wrong to conclude (presumably in reliance upon Nikitin) that the applicants had enough information as to the primary wrongdoers and that the existence of possible additional defendants could be allowed to emerge during the course of the proceedings. See para 28. 42 [2007] EWHC 330.

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exercise. Mr Justice King cited paragraph  36 of Ashworth, quoted above, in which the test of necessity is alongside proportionality. He said that the two must be assessed by reference to all circumstances, including the size and resources of the applicant, the urgency of the situation (there being a deadline for judicial review proceedings) and any public interest in having the applicant’s need satisfied. The judge rejected the submission that all other available avenues needed to be exhausted. He continued: ‘Of course as Lightman J. said in the passage cited above, the court must always have in mind the public interest in not involving innocent third parties if this can be avoided and ‘a necessity required to justify exercise of this intrusive jurisdiction is the necessity arising from the absence of any other practicable means of obtaining the essential information’. But when determining what is practicable for these purposes the court in my judgment is entitled to have regard to all the circumstances prevailing in the particular case, including for example the size and resources of the Applicant as an organisation, and the urgency of its need to obtain the information it requires, and any public interest in it having its need satisfied.’43

On the facts, the judge concluded that disclosure was appropriate. The application represented the ‘only practicable source’ of the information given the steps taken already by the applicants to investigate, the urgency and their limited available resources.44 Against all this, there was no countervailing interest of note (there being, for example, no issue as to journalistic freedom). The Campaign Against Arms Trade case45 was significant in challenging the higher requirement apparently envisaged in Mitsui and Nikitin. At this stage, however, there remained a conflict between different first instance approaches. The Campaign Against Arms Trade approach has however since been endorsed in the important Mohamed decision.46 There, the Divisional Court stated: ‘93 … The requirement of necessity was also considered by King J in Campaign Against Arms Trade v BAE Systems plc, paras 15–20; it was argued on behalf of the defendant in that case that this test was not met where the claimant had failed to exhaust other available avenues through which the information might be obtained. King J observed that that was to put the matter ‘too high’ and to put the discretion of the court into too much of a straitjacket. He considered that the court was entitled to have regard to all the circumstances prevailing in the particular case including the size and resources of the applicant, the urgency of its need to obtain the information it requires and any public interest in its having its needs satisfied. ‘94. It seems to us that the observations of Lightman J  in the Mitsui & Co Ltd case and Langley J in Nikitin’s case put an undue constraint upon what is intended to be an exceptional though flexible remedy. The intrusion into the business of others which the exercise of the Norwich Pharmacal jurisdiction obviously entails means that a court should not, as Lord Woolf CJ in the Ashworth Hospital Authority case made clear, require such information to be 43 [2007] EWHC 330 para 20 quoting para 24 of Mitsui, referred to above. (There is a slight misquote; the sentence in fact begins ‘the necessity’ rather than ‘a necessity’). 44 [2007] EWHC 330 para 91. 45 [2007] EWHC 330 (QB). 46 [2008] EWHC 2048 (Admin) para 94.

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provided unless it is necessary. But in our view, there is nothing in any authority which justifies a more stringent requirement than necessity by elevating the test to the information being a missing piece of the jigsaw or to it being a remedy of last resort. We agree in this respect with the views expressed in Hollander, Documentary Evidence, 9th ed (2006), para  5–26. Moreover it would be inconsistent with the flexible nature of this remedy to erect artificial barriers of this kind. In our view the approach of King J in the Campaign Against Arms Trade case is to be preferred.’

The text referred to, paragraph 5-26 of Hollander (9th edition), questioned the reference in Mitsui to a remedy of last resort, noting that Ashworth had suggested considerable expansion in the use of the remedy and suggesting that this and other recent applications were inconsistent with Mitsui.47 The Mohamed decision appeared therefore to reaffirm that necessity was a requirement, but to endorse a more flexible interpretation of the test. It certainly challenged the ‘last resort’ limb from Mitsui. There is support in the above passage for dispensing entirely with any test based upon the availability of practicable alternatives. However, the passage concludes by endorsing the approach in Campaign Against Arms Trade, which preserved that reasoning and, in particular, the need to consider whether there was any practicable alternative. Accordingly, the better view is that this remains a requirement, albeit that the question of whether another avenue is practicable is to be considered against the backdrop of flexibility. On the facts, the Divisional Court concluded that: ‘Although we accept that the military judge may decide that such information or documentation should be made available at some point in the future, there are a number of features of the process that make it clear that the process may not produce the information or documents at all and certainly is unlikely to produce them within a proper time. We have concluded that, despite the possibility of provision of the information in the processes under the Military Commissions Act of 2006 at some point in the future, the Foreign Secretary should nonetheless now provide the information to [Mohamed’s] lawyers.’48

In reaching this view, the Divisional Court determined that a legitimate objective of Norwich Pharmacal relief would be to provide information to the applicant’s lawyers so that they could make submissions on his behalf to the Convening Authority, which was deciding whether or not proceedings would be brought. It was part of the court’s reasoning that the disclosure was necessary at this stage, even though there would be subsequent opportunities if proceedings were to be brought against him. Thus the legitimate objective was not merely that the applicant’s lawyers should see the documents in time to make submissions at any trial, but that they should see those documents imminently in order to make appropriate use of them at an earlier stage, in seeking to influence whether there would ever be a trial. It was not considered sufficient that the Convening 47 The relevant section is headed ‘Norwich Pharmacal order as an exceptional remedy’. The equivalent passage in the 13th edition (2018) is 4-15. The author cites Equatorial Guinea and records that this makes clear that the matter is merely one for the court’s discretion. 48 [2008] EWHC 2048 (Admin) para 126.

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Authority (a named individual) would have the documents; it was considered important that the applicant should be able to make submissions as to their effect. Given the way in which this objective was defined, the Divisional Court did not need to give separate consideration to whether any alternative avenues were ‘practicable’. It appears to have been common ground that there were no procedures available that would have led to the information being provided in a form which enabled the applicant’s lawyers to make submissions on them.49

9.1.3  Privy Council – Equatorial Guinea None of the above cases referred to the Privy Council opinion, given by Lords Bingham and Hoffmann, in President of the State of Equatorial Guinea v Royal Bank of Scotland.50 The case arose out of an alleged attempt to overthrow the Government of Equatorial Guinea. In April 2004, Lieutenant Bailiff Day in Guernsey had granted ex parte relief against the bank requiring it to ‘provide information and documents as to the beneficial owners of [two companies], documents identifying transactions on any account held in the name or for the benefit of [those companies or two individuals] showing whether moneys had been transferred from such accounts since January 1st, 2003.’ Subsequently, one of the two companies applied to set aside the order. In the course of his judgment, the Lieutenant Bailiff set out the principles governing Norwich Pharmacal relief. He cited various English authorities, including Ashworth. Of particular relevance were two points in his summary. First, he recorded that the relief should not infringe against the mere witness rule: ‘that is, it must not be for the purpose of obtaining pre-trial disclosure of what a witness will say if called at trial’. Second, he recorded that the power was discretionary and that it should be applied by analogy to the test for injunctions, ie by assessing whether the relief would be just and convenient. He did not mention necessity in terms. He concluded that his ex parte order should be stayed. This decision and the earlier ex parte order were both overturned by the Guernsey Court of Appeal.51 The significant point for present purposes was that the Court of Appeal disagreed as to the discretionary basis for Norwich Pharmacal relief, though it agreed with the other propositions set out by the judge, including as to the mere witness rule. The Court of Appeal also agreed that disclosure could be granted in support of proceedings overseas, in this case in England. On the discretion, the Court of Appeal stated: ‘The [Lieutenant Bailiff’s summary] puts the threshold for the grant of an order too low. The test is that the plaintiff must show that the making of the order is essential and necessary to assist the plaintiff in achieving justice. It has to be kept in mind that (a) the order would be usually against a third party innocently involved in the wrongdoing of others, and (b) where the third party is a bank 49 See para 113. It seems that, if the Convening Authority decided to refer the case to a military judge, there was a procedure which might permit disclosure. However, this was considered to be at too late a stage in the process: see paras 116 and the passage quoted above from para 126. 50 [2006] UKPC 7. 51 Guernsey Law Reports 2005-06 GLR 65.

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(as is frequent in the case of applications for such orders), the order would be destructive of the obligation of strict confidentiality owed by a bank to its customers. No Norwich Pharmacal-type order should be made by the Royal Court unless the plaintiff establishes that it is essential and necessary for such purpose for the order to be made. In this respect we consider that the Lieutenant Bailiff did not correctly direct himself as to the legal principles to be applied by him in this case.’

The Privy Council overturned the Court of Appeal’s conclusion, preferring that of the Lieutenant Bailiff. Much of the case concerns the proper role of the appellate court. However, the point of interest is that the Privy Council concluded that there was no difference of substance between the various formulations for the discretionary test. The relevant passage, in full, is as follows: ‘It is true that in some of the cases the word ‘necessary’ has been used, echoing or employing the language of Order 24, rule 13 of the Rules of the Supreme Court. But, as Templeman LJ observed in British Steel Corporation v Granada, ‘The remedy of discovery is intended in the final analysis to enable justice to be done’. Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance. In the present case the appellants were concerned to identify those who had financed the abortive coup in March 2004. It is not suggested that there was any legal means of doing so open to the appellants other than that which they chose.’52

The essence of the test would therefore be whether there existed a ‘straightforward and available means of finding out’ the information absent relief. On its face, the case marginalises the necessity requirement, converting it into ‘necessity in the interests of justice’ and thus an alternative formulation of the broad discretionary exercise. It is perhaps surprising that the Privy Council did not directly address Lord Woolf’s references in Ashworth to necessity or the then recent case of Mitsui which dealt principally with necessity.53 A  possible explanation for the first is that the formulation differs little from the Ashworth test of ‘necessary and proportionate response in all the circumstances’, at least as it might have been understood without the overlay of cases such as Mitsui since. Alternatively it might have been regarded as a case concerned principally with section 10 and the statutory test of necessity. One can only speculate on whether Mitsui was

52 [2006] UKPC 7 para 16 (emphasis added). 53 The opinion is dated February 2006 but there is no indication of the dates of the hearing, save that the Guernsey Law Report records that permission to appeal was initially refused in April 2005. Mitsui was decided in April 2005.

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even cited to the Privy Council.54 It may have been regarded as an authority on the missing piece of the jigsaw, without broader significance. Nonetheless, its omission is perhaps surprising. It may also be significant that the ‘necessity’ test is said to echo or employ wording derived from RSC Order 24, rule 13. This provision provided that no order for production or inspection should be made unless the Court was satisfied that ‘the order is necessary either for disposing fairly of the cause or matter or for saving costs’. This is perhaps a surprising reference to have chosen for the general necessity test in the Norwich Pharmacal line of cases which, as described above, was not generally stated in such terms and originated quite separately from the RSC provision. The only authority cited in the relevant passage was Templeman LJ in the Court of Appeal in British Steel to the effect that the remedy was about enabling justice to be done.55 In his next paragraph, Templeman LJ goes on to deal with necessity. One could argue that the Privy Council would surely have adverted to this if using his earlier summary to support a change in the law on necessity. Against this, it must be noted that Lord Fraser in British Steel summarised the effect of Templeman LJ’s judgment as being to allow disclosure where necessary to enable justice to be done, itself a relatively flexible interpretation of the necessity ingredient. One alternative reconciliation is that the Privy Council considered that necessity was separate from the final discretionary analysis and that it formed part of the mere witness test, which the Lieutenant Bailiff included in his summary and the Court of Appeal endorsed. The application of that test was not in issue before the Privy Council.

9.1.4  Equatorial Guinea and English law A  Privy Council decision is only persuasive authority on English law. The applicable principles of precedent were recently considered in Sinclair Investments (UK) v Versailles Trade Finance,56 in which the Court of Appeal considered whether to follow its own previous decisions or a subsequent but inconsistent decision of the Privy Council (concerning proprietary claims over a bribe paid to a fiduciary). The Court reaffirmed that it should generally apply its own previous decisions, leaving it to the Supreme Court to overrule them. There were exceptions to this principle where it was a foregone conclusion that the Supreme Court would follow the later Privy Council decision. One example was provided by R  v James57 where the Court of Appeal (Criminal Division) had followed a decision of a nine-member Privy Council on an issue which had been expressed to provide clarity to English law, preferring this to a prior

54 The Guernsey Law Report lists the cases cited, but this appears to be those cited in the opinion. It does not include Ashworth which was explicitly mentioned in the Lieutenant Bailiff’s summary of the law. 55 [1981] AC 1096. See quote above, from p1132D. 56 [2011] EWCA 347. 57 [2006] EWCA Crim 14; [2006] QB 588 (CA).

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House of Lords authority. Another was Abou-Rahmah v Abacha58 in which Lord Justice Arden considered that the Privy Council in Barlow Clowes International v Eurotrust59 had given guidance as to the proper interpretation of the dishonesty requirement in the House of Lords decision in Twinsectra v Yardley60 for dishonest assistance. The question, therefore, is whether there is any difference between Equatorial Guinea and the English authorities. Both are certainly flexible in their approach to necessity, reflecting the House of Lords in Ashworth. However, whilst the English authorities have cast off the ‘last resort’ phraseology, they appear to retain a requirement that relief should be the only practicable source of the information, even if what is practicable is itself to be understood flexibly. By contrast, the Privy Council test appears on its face to be lower, requiring only that the alternative should not be ‘straightforward’. Nonetheless, as explained below, this has been interpreted as consistent with English authority, rather than as supporting any further lowering of the necessity threshold.

9.1.5  Subsequent cases As noted above, Equatorial Guinea was not cited in cases up to and including Mohamed. The case was however cited and applied in Aamer,61 a second case concerning a Guantanamo Bay detainee and the possibility of making submissions to a newly established Task Force which was considering what should happen as regards each detainee. The Divisional Court considered the English cases up to and including Mohamed before then referring to Equatorial Guinea as a ‘further authority … which is broadly to the same effect’.62 The Court considered a number of objections to the necessity for relief. Again, following Mohamed, the objective was defined in terms which included the ability for the applicant’s lawyers to make submissions on the information, not just the provision of the information to the Task Force.63 It was submitted that disclosure might be obtained by variety of other means. One route was disclosure from the Task Force. However, the Court concluded that there was ‘no real prospect’ of obtaining disclosure by this means given public statements made by the Task Force, which suggested that they did not consider it feasible or appropriate to undertake this exercise, coupled with the opposition from the UK  Government to disclosure of information originating from the UK. A second route was the possibility of disclosure through habeas corpus proceedings that had been brought by the applicant in the US. In fact, a disclosure order had been made, but the proceedings had subsequently been stayed by consent. Accordingly, it is worth quoting the Divisional Court’s conclusions on this issue in full:

58 [2006] EWCA 1492. 59 [2006] 1 WLR 1476. 60 [2002] UKHL 12. 61 [2009] EWHC 3316 (Admin). 62 [2009] EWHC 3316 (Admin) para 50. 63 Ibid para 54.

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The Divisional Court rejected the contention that the delays were the fault of the applicant because, whilst the Secretary of State had initially indicated that (subject to public interest immunity) he would make voluntary disclosure, he had relatively recently changed his position and thus required an application to be made. On this critical aspect of necessity, the Divisional Court applied the test of whether there was a ‘straightforward and available means’ of finding out the information without Norwich Pharmacal disclosure, derived from Equatorial Guinea.64 One can only speculate that a similar conclusion might have been reached if the practicability test had been applied. Given that the objective was expressed in terms of allowing immediate access to the information, the practical constraints upon disclosure in the habeas corpus proceedings might well have precluded that avenue from being considered a practicable alternative in the circumstances, just as they prevented it from being regarded as ‘straightforward’. The Equatorial Guinea formulation was also adopted by Mr Justice Tugendhat in RFU v Viagogo65 when answering the question: ‘Is disclosure of the information to RFU necessary?’ This was the only case relied upon in this context. The RFU case concerned the onward sale of tickets at above their face value via the website Viagogo. It had been argued that the RFU had other avenues available to identify

64 [2006] UKPC 7. See, in particular, para 67. Also para 63. 65 [2011] EWHC 764 (QB).

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the original ticketholders, such that disclosure was unnecessary, including asking all ticketholders, by test purchases or by spot checks. The judge concluded that he should order disclosure; there was no ‘straightforward or available means of finding out’ without relief. The same point was addressed briefly by the Court of Appeal, although it would appear that the submission on appeal had been somewhat different, directed to the fact that the RFU could change its procedures by issuing tickets only to named individuals and then requiring proof of identity at the stadium. The Court of Appeal rejected this submission on the basis that it was wholly inimical to the way the RFU wished to distribute tickets. In the absence of any plausible suggestion as to how the RFU could obtain identities (counsel had offered none), the court concluded that the order was necessary.66 In its conclusions on proportionality, the Court of Appeal referred to there being ‘no realistic way’ of discovering the wrongs other than by granting relief. There was no specific consideration of the authorities on necessity. In the Supreme Court, there was no detailed consideration of the issue. However, two passages may be relevant. First, Lord Kerr described the jurisdiction in general terms as follows: ‘The need to order disclosure will be found to exist only if it is a ‘necessary and proportionate response in all the circumstances’: Ashworth at paras 36, 57 per Lord Woolf CJ. The test of necessity does not require the remedy to be one of last resort: [Mohamed].’

He then provided a summary of factors identified as relevant in the authorities, including ‘whether the information could be obtained from another source’, where he cited Equatorial Guinea. Also of interest is Rusal v HSBC.67 There, Mohamed and Equatorial Guinea were both cited, with the judge, Mr Justice Tugendhat, stating that ‘the two cases are consistent’.68 He said that the question was whether disclosure was necessary, adding that ‘necessity in this context is necessity in the interests of justice’.69 This coupling of necessity with the interests of justice is not found in prior cases such as Ashworth, Mohamed or Aamer. It may be a reference to Equatorial Guinea or, perhaps, to the statutory test in section 10, which employs the same phrase as one of the alternatives. In applying the test in Rusal, the judge considered whether alternative avenues existed and, having concluded that they did, refused a major part of the application on the basis that it was not necessary. He referred in particular to the possibility of disclosure via proceedings in Russia.70 In the original permission application in Omar,71 the Court of Appeal concluded that the case was arguable and thus allowed the appeal. Of note in passing is that the Master of the Rolls, Lord Neuberger, commented upon the ‘protean nature of

66 [2011]  EWCA  Civ 1585, paras 25–26 of the judgment of Longmore LJ with whom Patten and Rafferty LJJ agreed. 67 [2011] EWHC 404. 68 Ibid para 112. 69 Ibid para 110. 70 Ibid para 136. 71 [2011] EWCA 1587.

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that word’ when considering whether the relief could be said to be necessary.72 When the matter was considered fully by the Divisional Court, the court read Equatorial Guinea more narrowly than some of the previous cases mentioned above. In referring to that case, the court reasoned: ‘It seems to us that the requirement of necessity is a requirement that must be dictated flexibly in the circumstances of each case … It is true that part of the paragraph which we have cited refers to the claimant having no straightforward or available or any means of finding out other than through the Norwich Pharmacal action but the words, ‘no straightforward or available means of finding out’ must be read in the context of the words, ‘or any’ and the concluding sentence of that paragraph where it is made clear that there was no suggestion in that case that there was any legal means of finding out other than through Norwich Pharmacal proceedings.’ 73

The Divisional Court thus drew attention to the full phrase used by the Privy Council in Equatorial Guinea: ‘no straightforward or available, or any, means of finding out’ the information. Whilst emphasising flexibility, this appears to have involved a higher requirement in place of the simple ‘straightforward or available means’ test. On the facts in Omar, an alternative existed in the form of legal proceedings in Uganda. In the Court of Appeal decision in Omar,74 the court dealt with necessity rather differently, though it endorsed the flexible approach taken by the Divisional Court.75 Lord Justice Kay (with whom the other members of the court agreed) emphasised that, though they might be ‘closely related’,76 necessity was not ‘simply a matter for consideration in the exercise of discretion’ but was ‘in truth … more than that’.77 Kay LJ said that, as Ashworth had made clear, necessity was a separate test which must be satisfied. Nonetheless, he agreed with the Divisional Court that it was to be dictated flexibly in the circumstances of each case. He observed that ‘there is no practical or substantial difference’ between the two formulations of ‘necessity in the interests of justice’ and ‘what is just and convenient in the interests of justice’, citing Equatorial Guinea. The latter was no less exacting than the former. This emphasis has been repeated in a number of subsequent cases, stressing that necessity is a threshold condition though it does not need to be the remedy of last resort.78 One area in which the test may be applied somewhat differently is where an identity is sought in proceedings against an alleged wrongdoer, typically in intellectual property cases. These cases are addressed in 8.5 above. In one

72 The Court of Appeal concluded that the grounds for granting relief were arguably made out and thus, in particular, did not address the limits of necessity in any detail. 73 [2012] EWHC 1737 (Admin) para 83. 74 [2013] EWCA 118, paras 28 to 35. 75 Para 35. The Court of Appeal’s conclusions on this topic were strictly obiter since it had rejected the relief on a point of principle, addressed in Ch 14. 76 Para 28, referring to the present case. 77 Para 30. 78 Orb v Fiddler [2016] EWHC 361, Popplewell J at para 87, citing Ashworth, Omar and Mohamed; and Ramilos v Buyanovsky [2016] EWHC 3176, Flaux J, citing Ashworth, RFU and Omar.

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example,79 the Patents Court ordered the disclosure, on Norwich Pharmacal principles, of the identities of customers who had been supplied with particular technology, on the basis that it would be better for all concerned to require such disclosure rather than the alternative, which would have been for the claimant to bring quia timet proceedings against a broader range of customers and then to discontinue against some. Reference should also be made to Brady v PKF.80 There, two football clubs had been rival bidders for the Olympic stadium. From press reports, it later transpired that the telephone bills of the vice-chairman of one of the two clubs had been obtained from the telephone company, by subterfuge, without her authorisation. Correspondence ensued, leading to an application for Norwich Pharmacal relief against accountants retained by the other club, who appeared to have been involved in the subterfuge. The judge, Mr Justice Coulson, ordered disclosure of, inter alia, the identities of the individuals involved. In so doing, he recited that this was necessary, without any detailed reasoning. The point of interest is that the applicants appeared to have all that was necessary to bring a claim against the firm of accountants. The same also appears to have been true as regards the football club, though that case may have depended in part upon inference. In Nikitin relief had been refused on grounds of necessity where the primary wrongdoers were known and the applicant sought information as to the individuals who had been involved. This had been regarded as an attempt to ‘fine tune a pleading’. The proper course would be to begin proceedings; any other wrongdoers would become apparent during those proceedings. It is not clear whether Nikitin was cited to the Court in Brady v PKF but, in any event, the judge appears to have approached necessity from a different perspective. It is of interest to note that section 17 of the Justice and Security Act 2013, which paraphrases the Norwich Pharmacal jurisdiction for the purposes of imposing a restriction upon its use in relation to sensitive information concerning the intelligence services, describes the test of necessity as being whether disclosure is ‘reasonably necessary to enable redress to be obtained or a defence to be relied upon’.

9.1.6  Overseas authorities In Jersey, the Royal Court has concluded that, in light of Equatorial Guinea, necessity should be considered within the remit of discretion. ‘If the plaintiff has a straightforward and available means of obtaining the information by some other route, it would probably not be reasonable, in most cases, to exercise the discretion in his favour. That emphasises that the Norwich Pharmacal jurisdiction is an exceptional one. However, we do not consider that

79 Wobben v Siemens [2014] EWHC 3173, Morgan J. 80 [2011] EWHC 3178 (QB).

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One of the factors commonly applied in Canadian cases concerning relief under Norwich Pharmacal is whether the respondent is the only ‘practicable source’ of the information.82 In Leahy, Mason J said: ‘[157] I emphasize the term ‘practicable’ in this factor because in my view, if other sources of information exist but would not be an efficacious method of obtaining the information and documents, justice is not served in requiring those sources be tapped prior to coming to the court for assistance. This is particularly so in cases involving fraud and bribery schemes involving fiduciaries where it may be essential to act without the knowledge of the alleged fraudsters.’ ‘[158] This approach was approved by the Federal Court of Appeal in Glaxo Wellcome. Stone J.A. held that even though the applicant could have pursued the information through an Access to Information Act complaint and judicial review process or through the use of a private investigator, the efficacy of these methods was doubtful. He held that the only reasonable means to get the information and preserve the plaintiff’s proprietary interest was to have the Minister of National Revenue produce the information.’

In GEA  Group v Flex-N-Gate Corporation,83 the Ontario Court of Appeal considered whether necessity was a requirement, including an extensive review of English authority (but not Equatorial Guinea). Cronk JA (with whom the other members of the court agreed) stated: ‘[84] On my reading of the authorities in Canada and England, it is unclear whether the requirement of a showing of necessity for pre-action discovery properly forms part of the court’s inquiry as to whether the third party from whom discovery is sought is the only practicable source of the information available (as held in Mitsui at para. 24) or as to whether the interests of justice favour disclosure or non-disclosure (as argued by FNG before this court). However, there is no suggestion in the established jurisprudence that it is a stand-alone requirement for the granting of a Norwich order. Nor do I regard it as such. ‘[85] In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief.’

81 New Media Holding Company LLC  v Capita Fiduciary Group [2010]  JRC  117, a decision of Deputy Bailiff Bailhache, para 23. See also the decision of the same judge in Viken Securities v New World Trustees (Jersey) [2011] JRC 28, recording that an order could be granted where it was not necessary but this would be a ‘factor that goes into the matrix of reasons which underlie the exercise of discretion.’ Those cases have also emphasised that relief should not be a available as a form of pre-action disclosure (paras 31(ii), (iv) and 12 respectively). 82 See the leading Federal case Glaxo Wellcome and Alberta Treasury Branches v Leahy, an Alberta case which has been adopted more widely. See the discussion of Canadian authorities at Ch 7.6.1 above. 83 2009 ONCA 619 (CanLII).

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On the facts, he then concluded that the applicants had sufficient evidence to bring a case against the wrongdoers and thus it could not be said that the relief was necessary.84

9.1.7  The applicable test – discussion Against this background, the present position appears to be somewhat unclear. It seems relatively settled that necessity remains a consideration and that, since Ashworth, it is to be interpreted flexibly. However, some structural issues remain. First, it is not clear quite how the necessity test should now be formulated and how it relates to discretion. In its original form, the test required that relief needed to be necessary in the sense that it was the only way to obtain the information. That test has seemingly been softened, at least since Ashworth, such that it is now often formulated quite differently, as a test of whether relief is ‘necessary in the interests of justice’. In that formulation, the exercise will inevitably be very closely related to broader questions of discretion and whether the relief is appropriate once the competing interests have all been weighed against one another. Second where there are other possible routes to obtain information, there is some uncertainty over how the test is to be understood. As a matter of strict precedent in English law, it seems that the test, derived from Mohamed, is whether other avenues are ‘practicable’, an element which will itself be interpreted flexibly and which will depend upon all the circumstances. That phraseology has origins in Norwich Pharmacal but has been reinterpreted by Mohamed (endorsing Campaign Against Arms Trade) in light of the flexibility required by Ashworth. The alternative formulation which allows relief unless there are other ‘straightforward and available means’ of obtaining the information, appears at first sight to be a lower threshold. That appears to have been the sense in which it was used in Equatorial Guinea. However, that proposition has been doubted and subsequent cases have treated this as essentially an alternative formulation of the same test. Except to the extent that it is a foregone conclusion that the higher courts in England will follow the Privy Council in Equatorial Guinea, that formulation does not change English law.85 It is suggested that since Ashworth and its recognition of the ‘flexible remedy’, the necessity requirement serves to emphasise that good reason should be shown before seeking to obtain relief from a third party. Phrases such as ‘straightforward and available means’ or ‘other practicable means’ are therefore useful as guidelines, but should not become quasi-statutory tests. This seems consistent with the approach adopted by the Court of Appeal in Omar and most subsequent cases.

84 2009 ONCA 619 (CanLII) paras 100 and 104–105. 85 See Aamer [2009] EWHC 3316 (Admin). Tugendhat J in RFU v Viagogo [2011] EWHC 764 and, most recently the obiter comments of the Court of Appeal in Omar [2013] EWCA 118. As described above, the Divisional Court in Omar focused upon the words ‘or any’ and seems to have envisaged that the Equatorial Guinea test was in fact a higher threshold: [2012] EWHC 1737 (Admin).

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9.1.8  Practical application This chapter has dealt with the test of necessity which, as explained above, has moved ever closer to becoming an aspect of the broader discretionary test. That test is considered in the next chapter. Objections to disclosure are then considered in Chapter 11, including those that have traditionally been directed at the necessity requirement.

9.2  LEGITIMATE OBJECTIVES 9.2.1  Categories of legitimate objectives As explained above, there have been a number of decisions in which relief has been granted for purposes other than to bring proceedings. The first significant decision in this area was British Steel v Granada, a case concerning a leaked document.86 The argument appears to have been put principally on the basis that the information was required to prevent further misuse of other documents and to dispel the cloud of suspicion otherwise hanging over other members of staff.87 In both the Court of Appeal and below, there had been unanimous support in favour of ordering discovery. Lord Denning MR stated that Norwich Pharmacal had ‘opened a new chapter in our law’ and that he could see no reason why it should be limited to where the injured person wished to sue.88 Lord Justice Templeman said that discovery should in principle be available provided that the applicant shows that he is genuinely seeking lawful redress of a wrong and that he cannot otherwise obtain that redress. Discovery was necessary on the facts because innocent employees were otherwise under suspicion, full and frank discussion was being inhibited and there was no other practicable route to obtain the information. In the House of Lords, Lord Wilberforce concluded that the applicant had not in fact renounced any intention of proceeding against the informant for damages. However, he also indicated that he would, if necessary, have been prepared to hold that an intention to seek redress would have been sufficient, whether by court action or otherwise, provided that there was a cause of action. Lord Fraser concluded that it did not matter whether there would be separate proceedings to vindicate rights, provided that there was a cause of action against the source.89 86 The Court of Appeal has not authoritatively addressed the issue. In RFU v Viagogo [2011] EWCA Civ 1585 there appeared to be no real dispute on necessity before the Court of Appeal, at least as regards steps that could be taken to identify past wrongdoers. The Supreme Court ([2012] UKSC 55) does not address the point. In Omar, the Court of Appeal only dealt with a permission application and thus only addressed the points at high level, establishing that they were arguable. 87 [1981] AC 1096. 88 [1981] AC 1096, Lord Wilberforce at 1167A. [1981] AC 1096 at 1127E-F. Note that the Appeal Cases report seems to be flawed in at least one respect: p1123G-H  contains clear typographical confusion which is resolved by reference to the official transcript of the case. 89 [1981] AC 1096 at 1127E-F. Note that the Appeal Cases report seems to be flawed in at least one respect: p1123G-H  contains clear typographical confusion which is resolved by reference to the official transcript of the case.

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He endorsed the test put forward by Templeman LJ in the Court of Appeal that discovery ought to be available to ascertain the wrongdoer when it is necessary to enable justice to be done.90 The principle established by British Steel has been applied since. In Totalise v Motley Fool,91 it was considered sufficient that the applicant wished to find out the identities and then consider the most effective way to protect its rights. In Ashworth, the ‘reason for seeking an order for disclosure is to discipline the person responsible for the leak which in practice would mean that that person would be dismissed’.92 In RFU v Viagogo, the objective was both to obtain injunctions to prevent future wrongs and to ‘expose the conduct of the intermediate transferees to the light of day’.93 It appears that this last would have been sufficient in itself. Campaign Against Arms Trade was another case in which the purpose was to identify a leak.94 However, more specifically, the objective was to identify that leak quickly so that the applicant could freely discuss legal and strategic advice within the three-month time limit required to initiate judicial review proceedings against the Government. The necessity test was considered in this context, in particular as regards timing. There are also a number of authorities which, as discussed above, may or may not be authorities of broader application. In CHC Software, the objective was to set the record straight.95 In Aiyela, the purpose was to assist in enforcement of a judgment. 96 As explained above, both cases may fall into a separate category since, for different reasons, they did not deal with necessity, which is closely related to the legitimate objective. In Bankers Trust and related cases, the objective is to trace property. In Murphy,97 relief was granted to enable the applicant to exercise his right to make representations to the trustees of a discretionary trust. As has been suggested above, in cases dealing with the missing piece of the jigsaw, the objective is to obtain disclosure of a missing fact needed for a claim. This description appears to be supported by Mitsui98 and to survive the disapproval expressed in Mohamed regarding the formulation of the necessity test. Each of the cases in this area to date has concerned discovery to enable a claim to be brought. It would seem to follow from British Steel and related authorities above that bringing proceedings should not be an essential objective; that it should suffice if the objective is to establish a missing fact as a preliminary to considering other forms of legitimate redress, such as whether or not to dismiss an employee. It has been held that obtaining information in order to challenge credibility in separate proceedings was not a legitimate purpose.99

90 [1981] AC 1096 at 1200C-G. 91 [1981] AC 1096 at 1200G. 92 [2001] EMLR 29. 93 [2002] 1 WLR 2033 para 19. 94 [2011] EWCA 1585 (CA) para 24. 95 [2007] EWHC 330. 96 [1993] FSR 241. 97 [1994] QB 366. 98 [1999] 1 WLR 282. 99 Orb v Fiddler [2016] EWHC 361 where the order originally made ex parte was set aside on various grounds, including non-disclosure.

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More recently, in Mohamed,100 the relief was granted to enable the applicant to use the material to make representations about his release to the Convening Authority in the US. In Aamer,101 the relief was granted to allow representations to a separate body, the Task Force. Both cases concerned Guantanamo Bay detainees and allowed disclosure to assist in making representations in the context of reviews that were being conducted imminently. By contrast, the judge in Rusal102 did not consider that one of the stated objectives would suffice for relief. The applicants principally sought disclosure of documents, as well as the identities of others involved in events. In addition to seeking that disclosure for the purposes of proceedings in Russia (see above), they also sought access to that information quickly to enable them to raise issues at a forthcoming EGM. This submission was rejected on the basis that the EGM was ‘not an occasion where it can be said that Rusal would be seeking redress of a grievance, or vindication, comparable to the dismissal of a disloyal employee envisaged by [British Steel v Granada], or the attempt to reduce the damage caused by an allegedly defamatory statement considered in [CHC Software]. So this is not a purpose for which the test of necessity is satisfied.’103 Other elements of the application also failed on the basis that there were other proceedings in which disclosure might be sought (see below). It is suggested that there should be no objection in principle to disclosure being granted for the purposes of an EGM. Once the category of legitimate objectives has been extended beyond a stated intention of commencing proceedings, there seems no basis to rule out any other objective. In Mohamed, the objective did not involve seeking redress, but the Court was satisfied that the information would be just as essential to a fair trial in which the applicant was the defendant as it would have been if he were pursuing a claim. Thus ‘seeking redress’ cannot be the limiting principle. Moreover, CHC Software involved setting the record straight. Other examples have been given above. On the facts of Rusal, however, it can readily be seen that there were discretionary factors pointing against granting the relief for the purposes of the EGM. The existence of that EGM had not been raised in the original evidence, but only in reply.104 It appears to have been an EGM to determine whether or not to re-elect the Board of the company about which the dispute centred.105 As the judge noted, the company was a Russian company and one might therefore expect matters regarding access to information to be governed principally by Russian law.106 These issues are addressed further in Chapter 14.

100 [2005] EWHC 625. 101 [2008] EWHC 2048 (Admin). 102 [2009] EWHC 3316 (Admin). 103 [2011] EWHC 404. 104 Ibid para 131. 105 Ibid para 10. 106 Ibid para 42.

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9.2.2  Timing as part of the legitimate objective A  number of the more recent cases107 have recognised timing as an important aspect of the objective. Thus, in Mohamed, the question was not merely whether disclosure should be given at some point in the future, but whether it should be given for a particular purpose in the short term. The necessity was assessed by reference to that short term objective. The court was influenced by the deterioration in the applicant’s mental health.108 In Rusal, by contrast, the judge was careful to record that there was no urgency. In Campaign Against Arms Trade, the judge defined necessity by reference to the objective of finding out the source within the time limit required for a judicial review application. The link was indirect in the sense that the information was not needed for that application. Rather, the applicant needed to comply with that deadline and needed to be confident that there would be no further leaks before it could proceed with its consideration of the issues.109 The applicant had taken steps to change its procedures but nonetheless, the judge accepted that there remained a risk that the risk of further leaks had not been obviated.

9.2.3  Broader considerations In Ashworth, a variety of factors were relevant to the balancing exercise ultimately performed under section 10. The same factors would have been relevant to discretion if section 10 had not been applicable. Many weighed in favour of ordering disclosure, including the removal of the cloud of suspicion otherwise hanging over other employees.110 In addition, security had been tightened as a result of the leak, which had impacted on the running of the hospital.111 In the subsequent Mersey Care NHS Trust v Ackroyd cases,112 the point was reconsidered in further detail. The judge at trial referred to the effects of the leak on staff morale, as well as on patient care.113 The possibility that an individual employee might be disciplined (a legitimate objective) was but a small part of the material weighing in favour of disclosure when the balancing exercise was conducted. It seems merely fortuitous that this possibility existed. It might be surprising if the impact on staff morale and on patient care were not sufficient in themselves to provide a legitimate objective for seeking the identity of the wrongdoer, even if there was no prospect of disciplining an employee. As matters stand these additional points did not form part of the purpose for which the order was sought and thus, whilst relevant to discretion and section 10, were not recognised as legitimate objectives. In view of the breadth of the 107 Ibid para 135. 108 In CHC  Software timing was also a consideration, but as noted above the case did not consider necessity. 109 [2008] EWHC 2048 (Admin), para 126 (vi). 110 [2007] EWHC 330 para 39. 111 [2002] 1 WLR 2033 para 63. Also British Steel: see for instance [1981] AC 1096, Templeman LJ at 1132G and Lord Fraser at 1202E. 112 [2002] 1 WLR 2033 para 20. 113 [2002] EWHC 2115, [2003] EWCA Civ 663, [2006] EWHC 107, [2007] EWCA Civ 101.

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concept, they may be accepted in an appropriate case. They appear to be on a par at least with ‘expos[ing] the conduct of the intermediate transferees to the light of day’ in RFU.114 It is suggested, however, that once the scope of legitimate objectives has been extended beyond bringing proceedings, the issue should be addressed as part of discretion. There is no useful purpose to be served by a threshold which admits some but not all objectives given that the next question will be about how to rank those various objectives and the interests they serve. This is supported by the fact that temporal constraints must enter into the definition of the objective and thus the necessity of achieving that objective. It is more coherent that such considerations should form part of a discretion, rather than achieving the same end by shaping the particular objective that must be said to be necessary. That achieves the same end but does so less transparently.

114 [2006] EWHC 107, Mr Justice Tugendhat, summarised at paras 192–194. 114 [2011]  EWCA  Civ 1585 para  24. The Supreme Court referred to the desirability of ‘active discouragement’ to others who might contemplate flouting the rules: [2012[ UKSC 55 para 37.

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Discretion and Scope of Relief

This chapter begins by considering how the discretionary exercise is structured. This will be particularly significant now that (as addressed in Chapter 9) the modified necessity test will tend to allow more cases through to discretion which had traditionally been a province populated by grounds for refusing relief that would otherwise be granted. The chapter then considers points relevant to the scope of relief, which are heavily influenced by the discretionary exercise.

10.1  THE DISCRETIONARY TEST There are in reality at least four sets of interests that might be relevant to the exercise of discretion. As well as the applicant’s interest,1 both the respondent and the intended target may have relevant interests. The public interest may also be relevant. All these interests must be balanced. The first question to consider is whether there is any structure to the balancing exercise to be conducted under the heading of discretion. Is there, for example, an overriding test of what is ‘just and convenient’ as there in the context of injunctions? Or is the test more structured, as in American Cyanamid and related cases in the context of interlocutory injunctions? The obvious candidates in a Norwich Pharmacal context are either what is ‘necessary and proportionate in all the circumstances’ (Ashworth)2 or ‘necessary in the interests of justice’ (Equatorial Guinea3 as interpreted in Rusal).4 However, these tests are confusing if applied to the discretion in its broadest sense. They accord a central role to necessity in some form, without any meaningful recognition of the broader factors that may arise on discretion. There does not appear to be any all-embracing formulation of the discretionary test. Necessity is not the answer. Save perhaps in one particular context, the constraints of the American Cyanamid approach and the so-called balance of convenience can have no application. The better view is that there is no magic

1 See 10.1.3 below. 2 [2002] 1 WLR 2053. 3 [2006] UKPC 7. 4 [2011] EWHC 404.

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formula and that the question ultimately is whether it would be just in all the circumstances to grant relief.5 A key issue is to define what more needs to be established when the eligibility thresholds have been passed. Even then, relief will impose a burden upon a third party who is (at least in the paradigm) innocent of any wrongdoing. This makes the jurisdiction an exceptional one.6 However, the respondent will be someone who is sufficiently involved in what is, at least, an arguable case of wrongdoing; his costs of compliance can be indemnified; and the law supports the applicant’s right to bring proceedings (or to seek other redress) against the alleged wrongdoer. Whilst inconvenience remains for the respondent, it may be very slight where there is no confidentiality constraint to give the respondent an active interest in ensuring that the proper arguments are put. For analytical purposes, the simplest scenario is one in which the applicant has a valid interest in obtaining discovery, the respondent stands to be inconvenienced somewhat, but there are no other opposing interests. In such a scenario, it is suggested that it would typically be appropriate to grant disclosure unless there exists an alternative means to achieve the same discovery without imposing upon the innocent third party. Where no such alternative avenue exists, this would be sufficient to outweigh the base line inconvenience caused to the respondent. Conversely, where there is such an alternative, one would ordinarily expect this to be the proper course and thus some explanation7 would be needed before relief would be granted under Norwich Pharmacal. From this starting point or base case, one can then consider whether the picture is changed by the addition of other interests and potential discretionary factors. This will always be a matter of judgment. Whilst the label ‘discretion’ is too entrenched to change, the real nature of the exercise is a balancing operation.8

10.1.1  European law and proportionality When used in the context of journalistic sources, in Ashworth, the proportionality requirement can be traced to Article  10 of the ECHR.9 By that article, every restriction upon freedom of expression needed to be justified on the basis that it was necessary for achieving certain legitimate aims specified in the article. In Handyside v UK, the European Court of Human Rights had interpreted this to

5 6 7

As stated in Equatorial Guinea [2006] UKPC 7. Ashworth [2002] 1 WLR 2053 para 57. There is an obvious overlap here with necessity, addressed in the previous chapter. For the need for an explanation, see Lightman J  in Mitsui when considering the alternative application against the holding company: [2005] EWHC 625 para 38. 8 Sedley LJ in Interbrew [2002]  EWCA  Civ  274 considered that the court’s assessment under s  10 should not be termed a discretion since it was ‘a matter of hard-edged judgment’. See also the description of the exercise by the Court of Appeal in Mersey Care NHS  Trust v Ackroyd (No  2) [2007] EWCA Civ 101 at paras 33-36 as ‘balancing of different factors and, although it can be said to involve a question of law, it was a question of law which was heavily fact-dependent and value-laden, and upon which many factors would be relevant on both sides of the scales’. This too was said in the context of s 10 but would seem to be of equal application to the discretion outside that section. 9 European Convention on Human Rights (‘ECHR’), strictly the Convention for the Protection of Human Rights and Fundamental Freedoms.

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mean that ‘every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued’.10 Other provisions of the ECHR may be relevant, including Article 8 (right to respect for private life) which extends to a person’s correspondence and Article 1 of the First Protocol (protection of property), which extends to intellectual property. All of these provisions of course form part of English law by virtue of the Human Rights Act 1998.11 Any balancing exercise must pay careful regard to these rights. This will typically mean ensuring that relief is only granted where permitted by the various qualifications inherent in the ECHR itself. The cases on journalistic sources and section 10 of the Contempt of Court Act 1981 are examples of this: see Chapter 13.2. Article 8 on privacy contains a qualification where ‘necessary in a democratic society … for the protection of the rights and freedoms of others.’ A  more difficult issue arises where there is a conflict between two rights. This may arise, for example, where the protection of intellectual property rights points in favour of disclosure, whilst privacy considerations point against. In such circumstances, the test set out by Lord Steyn in Re S (A Child),12 albeit in another context, should be borne in mind. The test (dealing with conflict between Articles 8 and 10) was as follows: ‘17 The interplay between articles  8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.’

The key considerations are the need for ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’ and the

10 (1979-80) 1 EHRR 737, at para 49. The same test was repeated in Sunday Times v United Kingdom (1979) 2 EHRR 245 at 278, which was cited by Lord Phillips MR in the Court of Appeal in Ashworth [2001] 1 WLR 515 at 533H. 11 Note that s 12(4) states that ‘the court must have particular regard to the importance of the Convention right to freedom of expression.’ However, it has been held that the effect of this provision is not to make freedom of expression a ‘trump card’ (Douglas v Hello Ltd [2001] 2 WLR. 992) or to give it presumptive priority over other Convention rights (Re S (A Child), below). In fact it has clearly been stated on a number of occasions by the courts that no Convention right has, as such, precedence over another and the proportionality test must be applied to each Convention right: Re S (A Child) and Lord Browne of Madingley v Associated Newspapers [2007] EWCA Civ 295; [2008] QB 103. There is a similar provision in s 13(1) regarding freedom of conscience though that is likely to be less relevant in the present context. 12 [2005] 1 AC 593 at 603F, para 17. The test was derived from Campbell v MGN [2004] 2 AC 457.

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role of proportionality.13 This test has been applied in Golden Eye14 to the conflict between intellectual property rights and privacy in the context of Norwich Pharmacal relief. In addition, provisions of EU law may give rise to similar considerations. The Charter of Fundamental Rights of the European Union, which applies to EU bodies and to member states when implementing EU law, provides a number of fundamental rights. Article 7 largely reproduces Article 8 ECHR, albeit referring to ‘communications’. Article 8 of the Charter contains a right to protection of personal data. Article 11 provides for ‘freedom of expression and information’ and corresponds to Article 10 ECHR. Article 17 recognises the right to property, including intellectual property. Finally, Article 47 records the right to an effective remedy. Moreover, fundamental rights are reflected in EU Directives implemented in the Member States. There have been numerous such Directives in the fields of intellectual property15 and personal data,16 including electronic communications. None of those deals directly with Norwich Pharmacal relief but they and the fundamental rights from the Charter may nonetheless impact upon the exercise of discretion. In Productores de Musica Espana (Promusicae) v Telefonica de Espana17 (2008) a body representing right holders had sought from an internet service provider the identities of account holders who were infringing their rights by using peer-to-peer software. The Spanish Court referred to the CJEU the question whether such a remedy was required. The CJEU ruled that there was no such requirement; Member States had discretion as to how they implemented the various Directives. However, where such a remedy was permitted, the national law must be applied in a way that ensured no conflict with fundamental rights or with general principles of EU law, including proportionality.18 Similar issues also arose in the recent case of Bonnier Audio AB  v Perfect Communication Sweden AB,19 a referral from Sweden. The CJEU reconfirmed that Member States could require an internet service provider to identify infringers. The court concluded (emphasis added): ‘58 It must be noted that the national legislation in question requires, inter alia, that, for an order for disclosure of the data in question to be made, there be clear evidence of an infringement of an intellectual property right, that the

13 In Mersey Care NHS  Trust v Ackroyd (No  2), Tugendhat J  referred to the need to ‘focus on the comparative importance of the specific rights claimed’: [2006]  EWHC  107, para  191. He was considering s 10 in a Norwich Pharmacal context, but the same could be said of the discretion more generally. 14 [2012]  EWCA  Civ 1740. Not addressed in the Court of Appeal there. As described below, the summary given by Arnold J has recently been approved by the Supreme Court in the RFU case. 15 The most significant in the present context is Art 11 of the Enforcement Directive, Directive 2004/48 on the enforcement of intellectual property rights. In addition, see Art 9(2) of the Enforcement Directive, which makes provision for relief that is similar to Norwich Pharmacal and Bankers Trust relief. 16 Directive 95/46 on protection of individuals with regard to the processing of data; Directive 2002/58 on the processing of personal data and the protection of privacy in the electronic communications sector. This last prohibits the storage of data save in defined circumstances. 17 Case C-275/06 [2008] 2 CMLR 17. 18 Ibid para 68. 19 Case C-461/10 [2012] 2 CMLR 42.

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information can be regarded as facilitating the investigation into an infringement of copyright or impairment of such a right and that the reasons for the measure outweigh the nuisance or other harm which the measure may entail for the person affected by it or for some other conflicting interest. 59 Thus, that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality. 60 In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users.’

The principle of proportionality is a general principle of EU law, which incorporates a number of elements. A leading statement of the principle (albeit in another context) is the following, from the decision of the CJEU in R v Minister of Agriculture, Fisheries and Food ex parte Fedesa:20 ‘13 The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’

Also of relevance in this context is the CJEU decision in L’Oreal v eBay21. The background was that L’Oreal had been unsatisfied at the response received from eBay when it had objected to the widespread incidence of transactions via that online marketplace which infringed its intellectual property rights. It had ultimately commenced proceedings in England against eBay alleging, inter alia, that it was jointly liable for the infringements. The judge concluded that eBay was not jointly liable.22 However, he referred certain questions to the CJEU. One of those questions concerned the interpretation of the so-called Enforcement Directive, including as to whether and in what circumstances Member States were required to ensure that an injunction could be obtained against an intermediary to prevent future infringement by other wrongdoers. The CJEU’s response was that Member States needed to have an effective remedy and that these may include an order that the online marketplace should ‘take measures to make it easier to identify its customer sellers’. Any remedy must strike a fair balance between the various rights and interests. Proportionality was also envisaged.23 Indeed, Article 3(2) says that all remedies required by the Directive must be proportionate.

20 [1990] ECR 1-4023 Case C-331/88. 21 Case C-324/09 [2012] EMLR 6. 22 [2009] EWHC 1094. 23 [2012] EMLR 6, paras 142–144.

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In practice, the proportionality element has attracted little attention in Norwich Pharmacal cases until recently. It was for instance mentioned in Mohamed when considering the scope of the disclosure, but added little to the test there of necessity.24 It was however addressed as the critical element in the RFU case.25 There, one particular reason for dealing with proportionality was that the case involved personal data. In the UK, this is governed by the Data Protection Act 1998, reflecting EU law.26 The Act allows for disclosure to be made wherever required by court order. However, as has been noted above, EU law still requires that this does not conflict with fundamental rights and is consistent with proportionality. Thus any qualification must be proportionate to a legitimate objective. The argument advanced in the RFU case on appeal to the Supreme Court was that the court should confine its consideration to the individual allegedly wrongful transaction and ask what value would be derived from obtaining information about the particular individual responsible for that transaction. The Supreme Court rejected that argument, holding that broader considerations beyond the particular individual were to be taken into account, including the active discouragement to others that would be achieved by revealing the identities.27 Lord Kerr endorsed the summary on the relevance of proportionality given by Arnold J in the Golden Eye.28 That case concerned the familiar situation of an application against an internet service provider to identify the users of peer-to-peer software. The case is dealt with in more detail in Chapter 12.5.2. For present purposes, the judge reasoned that Re S  (A  Child) addressed above, should be applied to deal with reconciliation between competing EU fundamental rights, as well as competing ECHR rights. He then conducted a detailed review before concluding that the relief was proportionate. That review extended to commenting upon the terms of the draft letter before action that would be exhibited to the order.

10.1.2  Special test for actions against the respondent? Since British Steel v Granada, it has of course been recognised that Norwich Pharmacal relief can be granted against an alleged wrongdoer, as well as against an innocent party.29 There is a group of cases which may suggest a particular discretionary test in such circumstances. The cases concern opposition on the basis that the names sought are commercially sensitive. They typically involve intellectual property infringement. However, if a different test applies in this context, it might logically apply more broadly. Where the respondent is before the court as a defendant in substantive proceedings (including for injunctive relief), the court has jurisdiction to 24 [2008] EWHC 2048 (Admin): mentioned at para 133, but not addressed in 134–149. 25 [2012] UKSC 55 para 27–29. 26 Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the procuring of personal data. 27 [2012] UKSC 55 paras 37, 40 and 45. The court considered that Bonnier Audio, referred to above, was not to limited and did not require analysis by reference to such a ‘hermetically sealed compartment’. 28 [2012] UKSC 55 para 44. As to Golden Eye, see [2012] EWCA Civ 1740. 29 See Ch 7.1 above.

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order disclosure against that defendant.30 It appears to have been accepted that disclosure could extend, in appropriate cases, to the identity of other alleged wrongdoers. Thus much of the argument in Norwich Pharmacal was directed to whether cases such as Orr v Diaper could be explained as instances of such a principle, rather than as cases in which disclosure was ordered against a true third party.31 Nonetheless, the settled practice was that the disclosure of such identities would not generally be ordered unless and until the wrong could be established against the defendant. Such information would be commercially sensitive to the defendant. The leading case was Carver v Pinto Leite32 in which the defendant’s right to redact any identifying marks from disclosed documents was also confirmed. Even though disclosure would not generally be required, this was not an absolute rule and there were circumstances where, in the exercise of the court’s discretion, it would be appropriate. The question therefore arose as to how the settled practice would be impacted by the decision in Norwich Pharmacal. Shortly after that case, in 1975, Mr Justice Walton refused to grant disclosure of customers to whom particular allegedly infringing products had been supplied.33 The application was made as an interlocutory application in ongoing infringement proceedings. The judge had no doubt that the jurisdiction existed, based upon the recent Norwich Pharmacal case amongst other matters, but he considered that the risk of damage to the defendant outweighed the possible benefit to the plaintiffs. He therefore refused the order in the exercise of his discretion. The principles governing that discretion were developed in Sega v Alca,34 which involved a claim for copyright infringement and passing off in relation to the ‘Frogger’ video game, at a time when such games were typically installed on machines at arcades, public houses and other such venues. An Anton Piller order had been granted. On the return date, the plaintiffs sought details as to the customers who had hired video games machines from the defendants and the locations of all such machines. At first instance, the order had been granted, citing Norwich Pharmacal. However, the Court of Appeal rejected this. The reasoning employed by the different members of the Court of Appeal does however differ in significant respects. Lord Justice Lawton considered that whilst jurisdiction might exist under Norwich Pharmacal it did not disturb the established practice. The jurisdiction should be exercised in the interests of justice. Here, the names of the customers were not relevant to the pleaded issues on infringement,35 though they would be relevant in due course to an enquiry as to damages if the claim succeeded. The 30 See, for instance, X  v Morgan Grampian [1991] 1  AC  1, where Lord Bridge recorded that the disclosure in question in that case (the identity of a leak) would be required in the context of conventional disclosure in the litigation concerning the quia timet injunction to restrain publication of the information. Thus Norwich Pharmacal relief as such would not be required. 31 See, in particular, the judgments in the Court of Appeal: [1974] AC 133 at 139G-140C (Lord Denning MR), p144D, 145H (Buckley LJ) and p151H (Roskill LJ). 32 (1871) 7 LR Ch App 90. See further the authorities mentioned below. 33 Harry Freedman v Hillingdon Shirts [1975] FSR 449. 34 [1982] FSR 516. 35 He cited authority that such names could be redacted on discovery if not relevant to the pleaded issues: Carver v Pinto Leite, above, Moore v Craven (1870, reported as a note to Carver, at 94).

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plaintiffs would first need to establish their case against the defendants. Before then, disclosure of customer names should only be ordered in an ‘exceptional case’. Lord Justice Templeman noted that liability was disputed and that the plaintiffs would not be deprived of their ultimate remedy if disclosure was not granted immediately. If the claim succeeded, the identities could be obtained on an enquiry as to damages or by a separate application pursuant to the power exemplified by Norwich Pharmacal and British Steel. In the meantime, it had not been established that there had been any wrong, either by the immediate defendants or by their customers. He cited the general rule that discovery of customer names would not be granted before entitlement to relief had been established.36 The discretionary power to order discovery at an earlier stage (either by separate action or during the course of existing proceedings) should be exercised where the court is satisfied ‘that the plaintiff will, or probably will, suffer irreparable damage if there is any delay in ordering discovery’. Lord Justice Fox dealt with the matter more briefly, concluding that the balance of convenience was in favour of the defendants; no case had been made out that it was ‘necessary’ for the plaintiffs to obtain the disclosure at this stage. In other words, the case demonstrated reluctance to order the disclosure of material which was commercially sensitive before the question of wrongdoing had been determined in the main proceedings. The Court dealt with the question as one of discretion. However, there was a difference of approach as to the relevant test. Lawton LJ considered that the issue was one as to the balance of justice under Norwich Pharmacal and concluded that the case was not sufficiently exceptional. Templeman LJ applied a test of whether irreparable harm would be caused to the plaintiff, such that relief would be necessary for his long term protection.37 Fox LJ concluded that the balance of convenience (perhaps an implicit reference to American Cyanamid) was against making the order since it was not necessary for the long term protection of the plaintiff. There was no consideration of the position of the intended targets, the customers. Similar issues were again considered in Smith Kline v Global Pharmaceutals,38 a case concerning a patented drug sold under the trademark ‘Tagamet’ and alleged infringement. At first instance, an interim injunction was granted, coupled with an order that the defendants should disclose the names and addresses of its suppliers. Only the disclosure element was challenged. Lord Justice Cumming-Bruce distinguished between typical discovery in an action (by interrogatory or disclosure of documents), which must be limited to the issues in the action, and discovery under Norwich Pharmacal which was not so limited. Under Norwich Pharmacal, relief was about enabling the plaintiffs to pursue a ‘more effective remedy’ by identifying other targets. On the question of whether to make such an order, he noted that it was often necessary, particularly in infringement cases, to move quickly to protect goodwill and to prevent others 36 Carver (above) and Fennessy v Clark (1887, CA) at (1887) 37 Ch D 184. 37 This had been the test applied in Loose v Williamson [1978] 1  WLR  639, where it informed an assessment of the ‘balance of considerations’. The judge there noted that, by contrast, the respondents would suffer no irreparable harm, particularly if they were innocent. There was no explicit consideration of the interest of the intended target in remaining unidentified. 38 [1986] 13 RPC 394 (1983).

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in the supply chain from covering their tracks. The plaintiff had an interest in seeking to prevent further (alleged) infringements by the supplier since this posed a real risk of damaging the world wide network established by that plaintiff and ‘the urgency of the need for relief was also obvious because it was just the field in which there is a real danger that market forces will be dislocated by the risk of widespread infringement.’39 This outweighed the potential damage to the defendants.40 The other judge (in a constitution of two), Lord Justice BrowneWilkinson adopted the requirement that irreparable harm be shown, derived from Sega v Alca. On the facts, he found that the probability of such harm had been established. In Societe Romanaise de la Chaussure SA  v British Shoe Corporation,41 Mr Justice Millett considered whether to order disclosure of a supplier. A manufacturer and designer of shoes brought a claim against a major retailer for alleged infringement of copyright in importing certain shoes for distribution. Undertakings were given and thus no injunction was required. Nonetheless, the plaintiffs sought information about the manufacturer and ultimately issued a notice of motion to obtain this information. A response was then given which included the key assertions that the respondents believed themselves to be the only customer, believed that the manufacturer held no further stocks and that no further shoes were on order. The plaintiffs persisted in their application seeking an explanation of the source of these beliefs. The plaintiffs explained that this was important information since they needed to decide whether or not to incur the costs of proceedings in Italy against the manufacturer. The position also appears to have been complicated by the defendant having explained in Court that their substantive defence when filed would be that the goods were freely circulating in Europe before importation. The judge, Millett J, considered that the information would have been required in due course in the substantive proceedings by discovery or interrogatories. Thus the issue was simply one of timing: whether disclosure should be brought forward. On the basis of Norwich Pharmacal he granted the disclosure at the present stage. The test was whether the defendant was prima facie involved in wrongdoing and, where applicable, full information must be given including ‘all information necessary to enable the plaintiff to decide whether it is worth pursuing the wrongdoer or not.’ The judge then turned to weigh up the competing factors. The defendants had given no good reason for withholding the information. He appears to have recognised the uncertainty in the applicable test laid down by the Court of Appeal in the two previous cases mentioned above. He concluded that a balance of convenience test would be easily satisfied. Moreover, even if the requirement was for irreparable harm, this was made out since there

39 [1975] AC 396 per Cumming-Bruce LJ at 399. 40 In weighing the factors, he applied American Cyanamid Co v Ethicon [1975] AC 396, which had described the (now familiar) ‘balance of convenience’ test in the case of an interlocutory injunction. Those principles were developed in the context of a two party situation. Cumming-Bruce LJ applied them strictly to the situation before him and therefore discounted the position of the customers from the balance, even though he acknowledged that those (unknown) customers may suffer real damage. It may be that this is unduly restrictive in the context of an order whose very purpose would be to disclose such identities. 41 [1991] FSR 1.

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was a possibility of such harm being suffered if the plaintiffs chose to rely on the information they had been given. He ordered that disclosure of all that was necessary to enable the plaintiff to decide whether it was worth suing the supplier. Another case in this line is Jade Engineering v Antiference,42 in which Jacob J considered whether to order disclosure of the supplier of an allegedly infringing machine. The judge considered that the case fell squarely within Norwich Pharmacal and that the issue was therefore one of discretion.43 Despite the respondent’s assertion to the contrary, he concluded that there could be no real interest in maintaining secrecy over the supplier. Any concern that the applicant might seek to bypass the respondent and contract with the supplier was addressed by an undertaking not to do so which had been provided by the applicant. In reaching these views, he did not address any structured test of the types seen in Sega (which he cited on another point) or Smith Kline. In subsequent cases, the question appears to have been approached as one of discretion, without reference to balance of convenience, irreparable harm or other such formulations. In Microsoft v Plato relief on Norwich Pharmacal principles was refused by the deputy judge.44 Relief was granted in Guinness v Flexitrade45 and also in Intercase v Time,46 albeit on the basis of the broader jurisdiction referred to in CHC Software.47 The Jade case was relied upon in Red Bull v Mean Fiddler.48 The principal allegation against the respondent was one of passing off in relation to the sale of drinks. A hearing had been scheduled to consider whether to grant an injunction against them. In the meantime, the applicant sought to identify the manufacturer of the drinks in question. The judge, Mr Justice Patten (as he then was), cited Jade. He noted that there were issues about whether the manufacturer might be a joint tortfeasor and whether disclosure of their identity would be needed properly to formulate the claim. He referred to the possibility of approaching the manufacturer to question them. However, he concluded that there was no pressing need for the identity in the context of the forthcoming injunction hearing. The balancing operation should be undertaken after the outcome of that hearing and in light of the evidence and the pleadings then in existence. The next case in this line is the more recent case of Eli Lilly v Neolab.49 This dealt with a similar fact scenario, in which identification was sought of customers. Having determined that there were arguable wrongdoers, the deputy judge considered the test that he should apply. He referred both Lawton LJ’s 42 [1996] FSR 461 Another case in the meantime was Beggars Banquet v Carlton [1993] EMLR 349 which refused disclosure of both suppliers and recipients of particular film footage. The judge did not refer to the cases mentioned above but considered that disclosure was not necessary; there was no real risk of harm. 43 The application had been made also on the basis that the identities should be revealed as part of conventional disclosure, the respondent having warned that it intended to redact the names when it came to disclosure. The judge accepted that there was a legitimate reason for wanting the names in order to investigate the defence in the substantive proceedings. 44 [1999] FSR 834 (Alan Steinfeld QC). The decision was upheld on appeal, though no issue arose as regards this aspect: [1999] Masons CLR 370. 45 Unreported, 1 November 2001. Relief extended both to customers and suppliers. 46 [2003] EWHC 2988 (Ch). 47 See Ch 15.4 below. 48 [2004] EWHC 735 (Ch). 49 [2008] EWHC 415 (Ch) (Patents County Court, Roger Wyand QC).

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formulation of where the ‘balance of justice lies’ and to Templeman LJ’s test of irreparable harm. He concluded that he should assess the order in a ‘similar way to considering the grant of an interim injunction’ and thus he turned to consider irreparable harm and the balance of convenience. Since both sides would suffer irreparable harm, he turned to the balance of convenience and ultimately determined to make the disclosure sought. He reached this view notwithstanding his earlier conclusion that the courts would be more cautious in ordering identification of customers than of suppliers.50 The same approach was applied in Wobben v Siemens51 where the balance was in favour of ordering disclosure as to customers, notwithstanding the submission that this would cause reputational damage. Conversely, in Wilko v Buyology52 the opposite conclusion was reached on the balance of irreparable harm, given the prejudice that would be caused to the respondent if forced to disclose its suppliers. The basis for this jurisdiction was said in Football Association v Wells to be an interpretation of section 37 of the Senior Courts Act 1981, an extension of Norwich Pharmacal rather than being squarely on all fours given that the relief was sought against a wrongdoer.53 It is suggested that this line of authority, except Jade, sits somewhat uneasily with the cases on discretion under Norwich Pharmacal, not as regards the outcomes but as regards the tests applied. Where the eligibility criteria for relief are met (as in these cases), the focus shifts to discretion. That must include consideration of all relevant interests of all those concerned. There is no obvious call for a threshold involving irreparable harm. Nor is the exercise the same as the balance of convenience exercise for an interlocutory injunction (although as a discretion it will in some respects resemble it). Whilst the relief sought is interlocutory by reference to the trial of the separate action against the respondent, that action is distinct from the Norwich Pharmacal application. That is not to say, of course, that the existence of that separate action is irrelevant. Where the respondent (or, indeed, the party to be identified) desires to protect sensitive information and has a real basis for that desire, this is an interest that will weigh against disclosure. It will be useful to consider whether any harm (on either side) would be irreparable. However, there is no clear basis for elevating such considerations into thresholds nor a determining factor. The respondent’s desire to protect its commercial information may prevail even if the applicant can show some irreparable harm. Conversely, there may be other reasons why the respondent’s interest should be overridden. One such factor may be case management. If the suppliers or customers are likely to be joined to proceedings one consequence of delaying identification will be the prospect of two or more trials on the same issues.

50 Relying upon Sega and Jade. 51 [2014] EWHC 3173 Patents Court, Morgan J, where the judge concluded that disclosure was better than the alternative of quia timet proceedings against a broader class. 52 [2014] EWHC 2221 (IPEC), Intellectual Property Enterprise Court, HHJ Hacon. 53 [2015] EWHC 3910 Snowden J, referring to Cartier v British Sky Broadcasting [2014] EWHC 3354 (see Ch 6.4 above) which concluded (since affirmed by the Court of Appeal) that website blocking injunctions could be granted against internet service providers under s 37 by analogy to the ‘duty to assist’ in Norwich Pharmacal.

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The above has not addressed necessity. The group of cases do not deal directly with this. In part this may be because the necessity test (reflecting the mere witness rule) was a jurisdictional hurdle which posed no difficulty where, as in each of these cases, the respondent was already a defendant before the Court in a substantive action. In any event, the real issue was one of timing. It appears to have been accepted that disclosure by the respondent was the only available avenue for identifying the supplier or customer and was thus to that extent necessary. In Smith Kline, timing was important. Thus necessity might have been accommodated by phrasing the test in terms of whether the relief was necessary now to protect the plaintiff’s interests (or for the long term protection of the plaintiff, the phrase employed in Sega), as described in Chapter 9.2.2 above. Such considerations may be dealt with more transparently as part of discretion.

10.1.3  The applicant’s interests The applicant will typically wish to obtain the information or documents to enable him to bring proceedings against a third party. He may intend to seek compensation or, for example, an injunction to restrain future wrongs. A number of other legitimate objectives have been recognised as purposes for which it is proper to seek Norwich Pharmacal relief. They are described in Chapter 9.2. They range from disciplining a wrongdoing employee through to setting the record straight. In the context of the discretion, however, there is no limit upon the types of factors that might be weighed in the balance. The cases have included: dispelling the cloud of suspicion otherwise hanging over other employees; relaxing procedures that have been tightened during whilst uncertainty remains; and operational efficiency.54 As a generalisation, the applicant is more likely to obtain disclosure in a commercial context.55 A significant factor is often the risk that there is not just an isolated instance of wrongdoing but that this may form part of a broader practice. In such circumstances, the court may be more inclined to grant relief to prevent future wrongs. One example is intellectual property infringement where applicants have relied upon: preventing future infringements; protecting their marketing network; avoiding encouraging others to enter the market improperly, encouraged by lack of any effective steps; lowering the price of the non-infringing goods; and diluting brand perception.56 It would seem that there is no objection in principle to the applicant relying upon the interests of others. This appears to be the case in relation to section 10 and, as such, it would be surprising if the discretionary exercise under Norwich Pharmacal was more narrowly constrained. In Michael O’Mara Books v Express Newspapers,57 the application was made by a publisher and authors 54 See Ashworth and Mersey Care NHS Trust, Tugendhat J, [2002] 1 WLR 2033 and [2006] EWHC 107 respectively. 55 Carlton [2003] EWHC 616 (Ch). 56 See Jade [1996] FSR 461, Eli Lilly [2008] EWHC 415 (Ch) and Smith Kline [1986] RPC 394. 57 [1999] FSR 49 at 405.

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seeking disclosure of the source of unauthorised disclosures of a manuscript. Investigations suggested that the source could be traced to a US printer engaged by the publisher, who had undertaken investigations themselves to identify the culprit. The applicants argued that disclosure was needed to protect the commercial reputations of both the publisher (one of the applicants) and of the US printer. It was argued in response that the US printer was not one of the applicants. Neuberger J considered that this was ‘not a factor of any significant weight’ as the concept of ‘interests of justice’ under section 10 was intended to be a wide one.

10.2  SCOPE OF RELIEF The two principal types of order made are: (a) providing information; and (b) providing copies of documents. In each case, the material is provided directly to the applicant. There is no requirement that it be passed via the court.58

10.2.1  Documents or information In some cases, the court will have a choice between the two types of order. Typically, the court will look to the least onerous solution. Thus, in Mitsui, the judge indicated that, if relief had been granted, it would have been by ordering that certain questions be answered by the respondent, rather than by ordering the production of documents.59 Much will depend upon the purpose for which the applicant seeks the discovery. In Mitsui, the case involved a missing piece of the jigsaw, which the applicant needed in order to plead a case against a known target. The answers to interrogatories would have provided enough to bring the case. Questions as to how the points would be proven at trial would then need to be addressed separately. In BNP  Paribas v TH  Global60 the applicants sought both information and documents, both relating to certain transactions. One of their reasons for pursuing Norwich Pharmacal relief rather than CPR 31.16 pre-action disclosure had been that this alone provided the possibility of obtaining information by affidavit. They sought affidavits setting out, inter alia, the respondent’s knowledge and involvement in the transactions. The court granted disclosure of documents, but refused to order affidavits, at least at that stage. It was not necessary to make such an order; the ‘information sought by the provision of affidavits may well appear from the documents which I have ordered be disclosed’.61 Documents will typically contain significant ancillary material. The respondent will often not be in a position to determine whether any of that

58 Compare the witness summons for production of documents (subpoena duces tecum), described in Ch 15.3 below. 59 [2005] EWHC 625. 60 [2009] EWHC 37. The other reason given was that the respondent was not the principal target of the litigation. 61 [2009] EWHC 37 para 51.

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ancillary information is sensitive. In appropriate cases, this may be a factor in favour of ordering information, rather than documents. On the other hand, access to primary documents will be of value to an applicant, not least at trial. The evidential weight to be attached to primary documents will often be higher than information contained, for example, in a witness statement, which may be challenged. The applicant may not be in a position to call the maker of the statement at trial and will thus need to rely upon a hearsay notice. Where, as in Bankers Trust cases, the purpose of ordering discovery is to enable tracing, the balance will generally come down in favour of ordering disclosure of documents. The position may be less clear cut in other situations.

10.2.2 Information If the order made is for the respondent to provide information, this can be ordered by way of witness statement (or affidavit). It was suggested in Mitsui that, if relief had been granted, it would have been by ordering interrogatories to be answered by the respondent. The interrogatory procedure has now been replaced by CPR Part 18, requests for further information. This allows the court to order a party to ‘clarify any matter which is in dispute in the proceedings’ or to ‘give additional information in relation to any such matter’. The response must be verified by a statement of truth. It is more common, however, for the relief to involve a witness statement or affidavit. It is suggested that this is to be preferred. The point of significance is that the applicant receives information verified appropriately by the respondent. There would seem no need to channel this via interrogatories or what is now CPR Part 18. A letter may in some instances suffice. However, it will generally be more appropriate to require a statement, signed by the individual respondent or by a duly authorised officer on behalf of a corporate respondent. The usual sanctions will of course apply if the information is knowingly false. Nowadays, an affidavit will rarely be necessary. However, if the information is to be used in foreign proceedings, it is possible that this may be a sensible precaution. There are many examples of cases in which the respondent has been required to disclose identities, typically including names and addresses.62 Other examples include orders for disclosure of ‘all information necessary to enable the plaintiff to decide whether it is worth pursuing the wrongdoer or not’;63 and financial information relating to the respondent and her husband, the judgment debtor.64 Further, in RFU v Viagogo the order made included information not just about identities but also ‘full details of all the tickets advertised for sale … including

62 An address for the subscriber of a known telephone number was obtained in Coca Cola v British Telecommunications [1999]  FSR  518. The name of the individual was at that stage thought to be known, though in fact it transpired that the subscriber was someone different, the respondent’s wife. 63 Societe Romanaise [1991] FSR 1. 64 Aiyela [1994] QB 366. The order is described in terms of a requirement to ‘make disclosure’ and seemingly required Mrs Aiyela to swear an affidavit. See the first instance decision of Hobhouse J, [1993] FSR 745 at 747.

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but not limited … the gate, block, row and seat number and the price at which the ticket was advertised for sale.’65 In Patel v UNITE,66 the original relief was directed towards identifying alleged wrongdoers who had posted comments on a website, the BASSA forum. The matter returned to the Court to ensure compliance. The original order was described as follows (emphasis added): ‘An order was duly made which required [the respondent] to carry out a reasonable search to locate the information sought, and to make and serve on [the applicant] a witness statement stating whether the information was now in its control, and to the extent that it had been but was no longer in its control, what had happened to it. The order also required [the respondent] to provide for inspection, by way of electronic copies, the identities, home addresses and IP addresses of the persons who had used the usernames listed in the schedule to the order to make the posts complained of on the BASSA forum.’

This is an example of an order where the information is not immediately known to the respondent but must be investigated. A further recent example is provided by the case of Brady v PKF (UK) LLP.67 The case concerned telephone records which had been obtained improperly. An order was made by Mr Justice Coulson (partly by consent) requiring the identification of those whom PKF knew or believed or had reason to suspect fell into certain categories, including for instance those who had obtained the records from the telephone company or had possession of those records subsequently.68 The order is detailed and broad in its terms. The judge also ordered disclosure of any documents making use of the information.69

10.2.3 Documents The disclosure of documents is routinely ordered in a Bankers Trust scenario. It has been ordered in other contexts, but relatively infrequently. The few examples are considered below. Provision of information is a more common solution. That said, the availability of document disclosure was recently confirmed by the Divisional Court in Mohamed and seemingly supported by the Court of Appeal in that case when dealing with a different issue. The Divisional Court treated Bankers Trust as an aspect of the Norwich Pharmacal jurisdiction and thus drew support from the availability of document disclosure in that context.70

65 At first instance [2011] EWHC 764 para 12 records the application; para 78 grants the order sought. Subsequent appeals were dismissed. 66 [2012] EWHC 92 concerning the question of compliance, addressed in Ch 10.2.4 below. 67 [2011] EWHC 3178. 68 The hearing was adjourned to allow an interested party the opportunity to put in evidence and to make further submissions since they had not been notified of the application initially. 69 Although not cited, there is authority for this approach in case of breach of confidence: see Robb v Green [1895] 2 QB 315 and Industrial Furnaces v Reaves [1970] RPC 605. 70 [2008] EWHC 2048 (Admin). See para 128–134.

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Consideration of the breadth of disclosure often takes as its starting point the speech of Lord Reid in Norwich Pharmacal where he stated as follows (emphasis added):71 ‘They [the authorities] are not very satisfactory, not always easy to reconcile and in the end inconclusive. On the whole I think they favour the appellants, and I am particularly impressed by the views expressed by Lord Romilly M.R. and Lord Hatherley L.C. in Upmann v Elkan. They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing 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. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.’

The reference to ‘full information’ has been much quoted since. In Arab Monetary Fund,72 Hoffmann J  considered this expression when dealing with the ambit of disclosure in a Bankers Trust case. Reasoning from the Norwich Pharmacal case, he concluded that the Bankers Trust jurisdiction did not create a general right of discovery but one directed at enabling further assets to be found and preserved. He drew a parallel to the subpoena duces tecum and observed that ‘I find it hard to see why [Bankers Trust relief] should be framed in terms placing a greater burden upon the third party than [the subpoena duces tecum].’73 This would import an expectation that the documents can be identified individually. As was seen in Chapter 5.5, the Court of Appeal was less restrictive in Marc Rich v Krasner74 saying that the test was one of discretion and achieving a ‘just balance’ between the interests. The court said that Hoffmann J  was not to be understood as saying that the disclosure must always be limited to the specificity required in the case of a subpoena. The disclosure ordered in that case appears to have been broad in scope: ‘all documents evidencing’ ownership and control of particular companies and all ‘documents evidencing, relating to or connected with’ certain transactions. Another obvious area concerns the missing piece of the jigsaw.75 However, as noted above, Mr Justice Lightman in Mitsui would have ordered information rather than documents. In Carlton, disclosure was ordered of ‘daily machine lists’ but the respondent does not appear to have taken any point on disclosure versus information. In Rusal, the judge dismissed the application on a number of grounds, principally necessity, but would otherwise have allowed disclosure of some documents, albeit that he would likely have insisted upon specificity (for reasons of judicial comity).

71 72 73 74 75

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[1974] AC 133 at 175A. [1992] 2 All ER 911. [1992] 2 All ER 911 at 919g. 15 January 1999, unreported See Ch 6.2 above.

Scope of relief

Outside this area, most historic examples of document disclosure appear to involve substantive proceedings against the respondent, where the necessity test has not typically been applied. Thus, disclosure was ordered in support of an injunction in the early case of RCA  v Reddingtons where the case concerned infringing recordings.76 In CHC Software the order required disclosure of copies of the letters sent to third parties.77 In Societe Romanaise, Millett J dealt with an application made in the course of substantive infringement proceedings against the respondent. He stated: ‘I observe that it is not sufficient to disclose the identity of the wrongdoer; the obligation extends to giving full information. That must include all information necessary to enable the plaintiff to decide whether it is worth suing the wrongdoer or not … ‘What the plaintiffs really need is the grounds for the defendants’ belief that they are the only customers of the supplier in respect of the shoes and boots referred to, whether in the United Kingdom or elsewhere, and the grounds for their belief that the manufacturer holds no other stocks of the shoes and boots. I propose to make an order in those terms rather than the terms sought in the notice of motion. ‘So far as discovery is concerned, I think it is right to order limited discovery, but it should be limited to all documents in the possession of the defendants which are relevant to the stated grounds of their belief. To my mind that will sufficiently assist the plaintiffs to make up their minds whether it is worth suing the manufacturers in Italy or not.’ 78

In Mohamed, the court considered the above authorities and reiterated that Norwich Pharmacal could not be used for wide ranging discovery but was confined to ‘necessary information’. Proportionality will also be important.79 In Mohamed, the court did envisage80 ordering broad categories of disclosure (subject to further consideration of public interest immunity).81 Several categories covering material specific to the applicant (referred to as Type A) were ordered in principle. The court anticipated making an ‘order for the provision of the specific information broadly described as Type A in a form to be agreed or decided by us’. Type A included categories introduced ‘any evidence’ and ‘any information concerning’ particular events.82 One category was ‘any evidence that the United Kingdom has failed to provide [the applicant] with assistance that should have been provided’. Although the Mohamed decision has been called into question by the recent Court of Appeal decision in Omar (described in Chapter 14), there is no indication that this will impact upon the scope of disclosure if ordered.

76 77 78 79 80 81

[1974] 1 WLR 1445. [1993] FSR 241.See Ch 15.4 below. [1991] FSR 1 at 5 and 6. Mohamed [2008] EWHC 2048 (Admin) para 133. In fact, the disclosure was superseded by events. The categories of disclosure in Aamer [2009] EWHC 3316 were similarly broad (albeit that it had been conceded that those categories were within the scope of Norwich Pharmacal): see paras 21 and 77. 82 See [2008] EWHC 2048 (Admin) para 135 for the categories. The conclusion that Type A should be ordered is in para 147.

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In a post judgment context, relatively broad orders have been obtained. In Kensington International v Congo, Mr Justice Gross ordered disclosure against several third parties of various categories of documents relating to payments (alleged bribes) made.83 In a separate instalment in the same series, Mr Justice Field ordered disclosure of information about the circumstances of particular shipments.84 Both decisions were upheld by the Court of Appeal, without comment on this aspect, no challenge having been as to the breadth of the orders.85 Issues as to the breadth of the disclosure sought were considered by Deputy Judge Sheldon QC in BNP Paribas v TH Global.86 The disclosure sought (and ultimately granted) extended to ‘all documents … relating to the transactions or agreements’ specified. It had been argued that the scope of discovery should be limited to the transactional documents, plus extracts from one report. It was argued that the disclosure exercise would be onerous, requiring searches at several locations and requiring additional staff to be employed. The cost of the exercise was estimated at between £150,000 and £200,000. The judge considered that the documents that the respondents had proposed would be insufficient to ‘provide an explanation for the central allegations’. The cost was not a valid objection since the applicant would have to pay the reasonable costs of compliance and had nonetheless persisted with the application. The judge emphasised that ‘no viable alternative’ had been proposed by the respondent. The correspondence previously had shown that they were ‘unresponsive to requests for information’. He noted that it might have been possible to narrow down the order if the respondents had been more forthcoming. The order was granted. Its breadth may be explained on the basis that the respondents were not only involved at arms’ length. They were centrally involved in the alleged wrongdoing, even if only as the vehicles by which that wrongdoing might have been committed. It is in that context that the court attached weight to the absence of cooperation in correspondence. Document disclosure was also ordered in the case of Brady v PKF (UK) LLP.87 The case involved the use of information which had been obtained improperly. In addition to ordering the disclosure of the identities of those involved, the judge ordered disclosure of any documents making use of the information. He said that documents evidencing the use ‘no matter how slight’ should be disclosed. Although it is clear that broad orders can be made where appropriate, in Rusal, the judge resurrected the possibility of the parallel to the specificity required for a subpoena duces tecum, at least in cases where there were constraints of judicial comity and/or jurisdiction. This topic is addressed in Chapter 14. As a final observation, the pilot scheme for disclosure88 being introduced in the Business and Property Courts from 1 January 2019 is designed to introduce

83 [2006]  EWHC  1848 (Comm). The order is recorded at paras 6 and 12. The point in issue in the reported decision (and on appeal) concerned the claim to privilege against self-incrimination. 84 Unreported, 26 July 2006. 85 [2007] EWCA Civ 1128. 86 [2009] EWHC 37. 87 [2011] EWHC 3178 (QB). 88 See the Pilot Scheme Practice Direction dated 31 July 2018.

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further controls on the extent of disclosure during an action.89 This should have no impact upon Norwich Pharmacal relief given the controls already in place, including the ‘necessity’ requirement.

Limits on Documents A  Norwich Pharmacal application will typically seek documents or information held by the respondent. It is possible, however, to imagine a situation in which the respondent has a right to obtain documents (from its advisers or others). There would seem to be no reason in principle why relief should not be possible, though this is likely to be a factor that goes to discretion. The relief should however be confined to circumstances in which the respondent has an actual right to obtain the document. In Dubai Bank v Galadari (No  6),90 the Court of Appeal concluded that the disclosure order could not go further than this and require respondents to use lawful means to obtain documents from others. It had been argued that the jurisdiction under Norwich Pharmacal and Bankers Trust should extend this far. The most recent cases have tended to emphasise the need for Norwich Pharmacal relief to be limited. The Ramilos v Buyanovsky case91 has been described in Chapter 7.6 above and made clear that overly broad pre-action disclosure would not be permitted. Santander v National Westminster Bank provides an example of the courts permitting disclosure but limiting this to the minimum required. In that case, concerning a bank’s attempts to recover mistaken payments, this was limited to the name and address, rather than other details such as date of birth, which were considered unduly intrusive and unnecessary.92 That said, there continue to be instances where broad relief is granted, even outside the context of proprietary Bankers Trust relief. Thus in Various Claimants v News Group Newspapers,93 victims of phone hacking were permitted disclosure of material going to the existence and extent of the wrong and its proof. In Orb v Fiddler,94 the order granted ex parte (though later set aside) was broad, though it seems to have been based in part upon the separate jurisdiction to preserve documents. It seems that disclosure will extend to all documents, including (for example) tapes.95 In Coca Cola v Ketteridge96 a significant issue during the trial concerned who had used a particular telephone number at critical times. The judge (by then 89 See the Disclosure Working Group Press Announcement dated 31 July 2018, paras 2–12. See further Ch 15.1 (pre-action disclosure). 90 The Times, 14 October 1992. 91 Ramilos v Buyanovsky [2016] EWHC 3175 (Comm). 92 [2014]  EWHC  2626 at paras 41 to 45. In that case an email addresses and telephone numbers appear to have been ordered too. In the subsequent case of Santander v Royal Bank of Scotland [2015] EWHC 2560 (CH) Master Matthews considered this to be unnecessary. 93 [2013] EWHC 2119 (CH), Mann J. 94 [2016] EWHC 361, Popplewell J. 95 See also the Hong Kong case of Able Force v East Sun Estate Management, [2010] 2 HKLD 1155, in which relief under Norwich Pharmacal was granted in respect of CCTV footage. 96 [2003] EWHC 2488 (CH). This is the final judgment. It records the application made during trial at para 58.

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Lord Justice Rimer) made an order during the trial under Norwich Pharmacal against a bank, which was known to have received a call from that telephone number and to have a recording of the call.97

10.2.4  Other orders A  more complicated order was made in Golden Eye.98 The judge considered and made amendments to a draft letter before action which was exhibited to the order. The concern was that thousands of names of consumers would be revealed by the order and that, particularly in low value claims, the court should ensure that the letter before action did not give the false impression that the recipients had been determined already to be wrongdoers. He also removed the arbitrary demand for £700 from each of the targets. Although the decision is unreported, it appears that the court has also recently made another more complicated order, providing for ongoing monitoring of an email account, with resultant communications being provided to the applicant, all supported by a gagging order. Such an order appears to have been granted in the substantial litigation between JSC BTA  Bank and its former manager and shareholder, Mukhtar Ablyazov. A  receivership order had been obtained covering extensive assets predominately based outside of England and owned through a structure of offshore companies. A  large number of additional companies were subsequently added based, at least in part, upon information obtained from Yahoo! Which had been obliged to reveal the contents of a number of email accounts used by a relative of Ablyazov, Syrym Shalabayev. From press reports99 it appears that the court ordered that Shalabayev should not be informed of the order until after BTA’s lawyers had reviewed the emails and, in the event, a series of orders were made requiring Yahoo! to cooperate in the monitoring of the email accounts on an ongoing basis. Yahoo! were also asked to reveal the internet protocol addresses from which the accounts had been accessed which revealed Shalabayev’s geographical location. The recent case of Patel v UNITE100 made clear that the court would intervene to ensure that a Norwich Pharmacal order, once granted, would be honoured. The applicant sought disclosure of the identities of those who had been making posts on a forum operated by the British Airline Steward and Stewardesses Association, a branch of the trade union, UNITE. He was a pilot who claimed to have been the subject of defamation and harassment following his having been identified as volunteer cabin crew prior to threatened strike action in 2010. He obtained an order which required UNITE to conduct reasonable searches and to provide an affidavit providing the identities. By the time of the order, the site had been taken down, though an (old) back up copy remained. UNITE provided a statement which suggested that they had been 97 The issue as to whether the bank was sufficiently involved for Norwich Pharmacal relief was not addressed. Nor is it clear why the application was not made under CPR 31.17. 98 [2012] EWHC 72 (Ch). Not addressed on appeal to the Court of Appeal, [2012] EWCA 1740. 99 Hogan Lovells November 2012 Legal and Financial Risk newsletter. 100 [2012] EWHC 92.

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unable to obtain from the back up copy the true identities behind the usernames that were then in use. Against that background, an application was brought to require that all copies be handed over to an independent expert. A number of statements were served purporting to describe the limitations of what survived. UNITE also declined a proposed meeting of the respective technical experts. Against this background, the judge was ‘far from confident’ that the right searches had been undertaken, a point he attributed to ‘lack of technical understanding’ on the part of UNITE and those that had been dealing with the matter on their behalf. He therefore ordered that the work should be performed by an independent expert appointed jointly by the parties, subject to confidentiality undertakings. In reaching this conclusion, he acknowledged that the order was intrusive and that the personal data of innocent third parties would be provided to the expert.101 However, he considered this proportionate. He noted also that the terms of the BASSA website reserved the right to disclose identities, albeit subject to privacy and data protection considerations.

10.2.5  Cross examination It is also possible that the Court might order cross examination of the respondent if not satisfied with the information provided in response to an initial order. The rules include a general power to order cross examination on any statement in CPR 32.7. The Court of Appeal has determined that such a power exists as against a substantive defendant who fails to comply with a disclosure order ancillary to a freezing injunction.102 The same power exists in relation to disclosure orders ancillary to search orders.103 In Kensington International v Congo,104 Mr Justice Morison ordered cross examination when faced with woefully inadequate attempts to comply with a disclosure order made against a third party.105 He based the order upon section 37 of the Senior Courts Act 1981 (providing that injunctions can be granted where just and convenient) and Norwich Pharmacal. In the latter context, he reasoned that Norwich Pharmacal was apt to cover situations post judgment and that the respondent had become mixed up in attempts to defeat execution.106

101 Art 8 ECHR and Data Protection Act 1998 were both considered, as was RFU v Viagogo. 102 See, for instance, House of Spring Gardens v Waite [1985]  FSR  173, which applied s  37 of the Senior Courts Act 1981 and the Bekhor case (see Ch  16.4). See also Motorola v Uzan (No  2) [2002] EWHC 2187 (Comm) and Yukong Line v Rendsburg (Mareva Proceedings: Cross Examination) CA, unreported 17 October 1996. 103 CBS v Perry [1985] FSR 421 Falconer J (referring also to the then recent judgment of Peter Gibson J  in RAC  v Allsopp, unreported). The assistance to be derived from this case was doubted in JSC BTA v Solodchenko and Ereshchenko [2011] EWHC 843 as House of Spring Gardens had not been cited. See also Morison J in Kensington International v Congo [2006] EWHC 1848 (Comm). 104 [2006] EWHC 1848 (Comm). 105 This had been made ancillary to a search order. The judgment of Gloster J making the order is unreported (though substantial parts are quoted in a later judgment by Cresswell J at [2006] EWHC 1712. It appears to have been common ground that the disclosure order had been based, at least in part, upon Norwich Pharmacal principles (see parags 11(2) and 12(2) of the judgment of Morison J). 106 [2006] EWHC 1848 (Comm) para 17.

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There is also direct authority that cross examination may be ordered to ensure compliance with a Norwich Pharmacal disclosure order. This was ordered in JSC BTA v Solodchenko and Ereshchenko.107 It is also apparent that the circumstances will need to be exceptional.

107 [2011] EWHC 843 Henderson J.

11

Common objections

This chapter sets out the common objections that are made by a respondent or by parties who might intervene to oppose the grant of relief and, to the extent possible, gives an assessment of how the various objections are weighed against the applicant’s interests in obtaining relief.

11.1 THRESHOLD OBJECTIONS – WRONGDOING AND INVOLVEMENT Relief may of course be opposed on the basis that neither of the two thresholds is made out, as addressed in Chapters 7 and 8 above. This will often involve arguing that there is an innocent explanation which does not involve any wrongdoing at all. Thus, for example, it may be argued that there was consent to disclosure of what might otherwise have been a sensitive document. Alternatively, it may be argued that the information might have passed through the hands of some who were not bound by confidentiality. The threshold is only arguable wrongdoing (subject to the discussion in Chapter 7.6), which will limit the scope for arguments on this front.1

11.2  OBJECTIONS TO THE EXERCISE OF DISCRETION Most objections are best regarded as directed towards persuading the court not to exercise its discretion in favour of ordering disclosure, assuming the two thresholds have been met. Included amongst these objections are those that directly target the necessity for relief. As explained in Chapter 10, the court will focus most upon the interests that underlie objections – for example, the weight of the interest in confidentiality

1

The argument that the disclosure will reveal innocents as well as wrongdoers is considered as an aspect of discretion below. Note, however, that in Arab Satellite [2008] EWHC 2568 (QB) it appears to have been treated as an aspect of the threshold requirement for wrongdoing. See discussion in Ch 7.5 above.

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rather than the mere fact that the information is covered by a confidentiality regime. There are several categories of interest that may weigh against granting relief. These include: (1) The respondent itself may have its own reasons for opposing relief. A classic situation is one involving commercial sensitivity over trading partners or, perhaps more strongly, over the identity of a source of information. (2) The intended defendant may have reasons for resisting disclosure. Where that party’s identity is in issue, it may be able to channel submissions via the respondent or by other means to preserve its anonymity. In missing piece of the jigsaw cases, it is common for the intended defendant to intervene directly.2 Depending upon the order sought, it is possible that an innocent party will be identified, either alongside wrongdoers or as a stepping stone. Such a person will have separate interests that must be borne in mind. (3) There may also be a public interest alongside the above. One obvious scenario, involving journalistic sources, is dealt with now by legislation. There may however be others, such as the protection of whistleblowers. This section does not differentiate between these various interests against disclosure. The procedural steps necessary to ensure that all of the relevant interests are properly represented are addressed in Chapter 12.6 below. Like the arguments in support of disclosure, it is impossible to identify all of the factors that may be relied upon to oppose relief. The most commonly encountered factors are explored below.

11.3 CONFIDENTIALITY, PRIVACY AND COMMERCIAL SENSITIVITY Most cases involve an objection to disclosure founded upon one or all of the above. The interest may be that of the intended target or of the respondent or both.

11.3.1  The interests This is not the place to analyse the substantive law governing confidentiality or privacy. Suffice to say that confidentiality may be founded either upon contract or upon an equitable cause of action which arises wherever there is an expectation of confidentiality. In the public sphere, it may be supported by the concept that a public body can only use information obtained by use of its statutory powers for the particular purposes intended.3 A  confidentiality obligation may be expressly qualified to allow compliance with a court order.4 Even without an 2 See, for instance, Axa described at Ch 6.2.2 above. 3 As argued in Norwich Pharmacal itself. 4 Thus, for example, such provisions can be found in the published terms and conditions of many telecommunications and internet service providers.

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express qualification, a court order will provide a defence to a claim for breach of confidence.5 Thus in almost all cases the confidentiality constraints will be overridden by any court order, although more difficult issues may arise in an international context.6 Privacy is based upon ECHR  Article  8, as described above. It has been recognised as giving rise to a cause of action such that breaches of privacy can be restrained or may lead to compensation.7 Specific rights are given by legislation, such as the Data Protection Act 1998. Within limits (addressed above), privacy can be overridden by court order. The mere fact that there is a privacy or confidentiality constraint will certainly not be determinative.8 In Ashworth the House of Lords ordered disclosure of the identity of a confidential source.9 In Smith Kline and Jade, orders were made notwithstanding alleged sensitivity about the identities.10 In Norwich Pharmacal itself, the Commissioners were ordered to disclose identities which they had maintained they were unable to provide since the information had been provided to them only for specific statutory purposes. In Golden Eye and in RFU, considerations of privacy were overridden.11 When exercising the discretion, the court looks not to the mere fact that there is such a constraint, but to the interests underlying that constraint. Thus the fact that confidentiality is imposed is less important than the reasons underlying it and the consequences of overriding it. The same can be said of privacy. Whilst there are now recognised rights of action associated with privacy, the court will look beyond that to the interests at stake. The particular balancing exercise relevant when considering privacy interests has been addressed in Chapter 10.1.1. It will also be important to distinguish between confidentiality about the very existence of the relationship and confidentiality over communications made as part of that relationship. Only the former will be relevant in a paradigm case seeking the identity of a target. The confidentiality of communications exchanged during the relationship is a familiar subject dealt with in a conventional disclosure context once substantive proceedings are underway. There is no single test which determines when privacy and confidentiality will be outweighed. Much depends of course on the interests placed on the other side of the scales. The case of Cembrit v Apex Roofing12 provides an example in

5

See, for instance, Parry-Jones v Law Society [1969] 1 Ch 1. See, further, P. Stanley, ‘The Law of Confidentiality: A  Restatement’, 2008 at p  45: ‘a party to litigation who is required to disclose documents cannot refuse to do so because they are confidential, and breaches no duty in doing so.’ It seems likely that the respondent’s obligation to maintain confidence will extend to a requirement that it should take steps properly to defend any application or, at least, to ensure that its counterparty has the opportunity to do so. 6 See further Ch 14 below. 7 See, in particular, Campbell v Mirror Group Newspapers [2004] UKHL 22; [2004] AC 457. 8 The same is of course also true in the context of conventional disclosure as part of a civil action: Alfred Crompton Amusement Machines v Customs & Excise Commissioners (No 2) [1974] AC 405 (Lord Cross at 429, with whom all agreed), citing Chantrey Martin & Co v Martin [1953] 2 QB 286 where the Court of Appeal had approved the general statement of principle as stated in Bray on Discovery (1885) at p 206. 9 [2002] 1 WLR 2033. 10 [1986] RPC 394 and [1996] FSR 461 respectively. See Ch 10.1.2. 11 [2012] EWCA Civ 1740 and [2012] UKSC 55 respectively. 12 [2007] EWHC 111 (Ch).

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the commercial sphere. An internal document relating to possible settlement had been leaked to the opposing party. There were also substantive proceedings and, by the time of trial, the source of the leak had identified himself. Nonetheless, the judge considered whether relief would have been granted under Norwich Pharmacal and concluded that it would have been. The document (a letter between two group companies) was confidential and thus the applicants were ‘prima facie, entitled to an order for disclosure’ of the identity. However, where there is a substantial interest weighing against disclosure, the interests required in support of disclosure will be correspondingly higher. It may no longer be sufficient to establish the case merely to the arguable level required to pass the threshold. It is important to observe that both the respondent and the target may have interests of this nature. Even if the respondent is prepared to waive its own interest, it may still have an indirect interest by virtue of being bound to maintain the target’s confidentiality or privacy.

11.3.2  Confidentiality clubs In the case of conventional disclosure by a party, special confidentiality regimes can be established to protect particularly sensitive information. This is common in cases involving commercial sensitivity.13 Regimes can be devised including disclosure to lawyers and experts only or to specific identified representatives of the opposing party.14 It is however exceptional to prevent a party from access to information which plays a substantial part in the case since this would mean that the party would be unable to understand the case and the advice received.15 Where discovery is sought by Norwich Pharmacal of similarly sensitive material, there would seem to be no reason in principle why a similar approach should not be adopted. Any protections that are proposed may be relevant to the exercise of discretion. This is likely to be possible, for example, in cases dealing with the missing piece of the jigsaw, where incidental information might otherwise be disclosed alongside the missing piece. However, such a solution is less likely to be practical in a case involving identification of a wrongdoer or where the very information sought is itself sensitive. In the Arab Satellite case, the judge rejected an attempt to insulate the confidential information, if provided.16 The applicants had offered that the information should be provided only to their in-house counsel. The judge said that such an individual would find it very difficult in practice to maintain that confidentiality. He was not an English solicitor and neither he nor the applicant was resident within the jurisdiction so there would be ‘no real sanctions’ if the undertakings were breached, whether by 13 See Warner-Lambert Co v Glaxo Laboratories [1975]  RPC  354 (CA); Roussel Uclaf v Imperial Chemical Industries Plc [1990] FSR 25 (Aldous J) and, since the CPR, Premier Profiles v Tioxide Europe [2003] FSR 20 (Moore-Bick J). 14 See, for example, Helitune Ltd v Stewart Hughes Ltd [1994] FSR 422, in the case of an independent expert; Atari incorporated and Others v Philips Electronics and Associated Industries Limited [1988] FSR 416, in the case of a party appointed expert. See Thomas Hicks & Ors v Royal Bank of Scotland, Sir Martin Broughton & Ors [2012] EWHC 1373 (Ch) for a recent example. 15 Roussel Uclaf v ICI plc [1990] FSR 25. 16 [2008] EWHC 2568 (QB).

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accident or design. Moreover, the judge noted that it was hard to see how redress could be sought whilst maintaining confidentiality.

11.3.3  Independent solicitors In appropriate cases, special arrangements may be made to ensure that risks to privacy and confidentiality are kept within bounds. One possibility is that an independent solicitor might be appointed to review the disclosed material and to pass on only material within defined categories. This will be particularly significant where an extensive disclosure order is made and time is critical, as in cases of fraud. An example is the unreported decision of Peter Smith J in JSC BTA Bank v Yahoo, in which it appears that such an order was made to enable independent solicitors to exclude personal, privileged and irrelevant material disclosed from certain email accounts.17 There is an obvious parallel here to the role of the supervising solicitor in executing search orders.

11.4  PUBLIC INTEREST IMMUNITY Even in conventional litigation, there are circumstances in which the public interest in secrecy outweighs the interests in favour of disclosure. Thus the court may determine that even relevant documents should not be disclosed and even relevant questions should not be answered in cross examination. In most cases, the claim is made on behalf of a public body, typically supported by evidence as to the policy considerations. Even where the immunity18 is claimed by a Minister, the court remains the ultimate arbiter of whether it is appropriate to withhold disclosure.19 The principle has been applied in a Norwich Pharmacal context, where it has operated as a final stage in the analysis, after the decision in principle to allow disclosure. 20 There is a long established principle that the identity of a police informer is protected.21 Though public interest immunity is most often encountered in cases involving public bodies, the principle is not so limited. In D  v NSPCC,22 it was applied to the National Society for the Prevention of Cruelty to Children, which had performed a statutory responsibility to bring care proceedings. The identity of an informant was protected by public interest immunity.

17 See description in R. Lewis, ‘Weapons Available to Litigators in the Fight Against International Fraud – Part II’, Bloomberg Law Reports, March 2012, p 55. 18 The term ‘privilege’ is sometimes used, as is the earlier label of ‘Crown privilege’. 19 Conway v Rimmer [1968] AC 910 (HL). 20 Mohamed [2008]  EWHC  2048 (Admin) paras 148–149. The intention was to review claims for immunity on a document-by-document basis, though this was in fact superseded by events. See also Aamer, [2009] EWHC 3316, at para 77. 21 Mark v Beyfus (1890) 25 QBD 494. See also R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274 and Westcott v Westcott [2008] EWCA Civ 818 (dealing with an immunity from suit of a witness but commenting by analogy upon public interest immunity). 22 [1978] AC 171.

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The principle has also been applied (in the context of substantive proceedings) to the reports made by employees of a bank to internal money laundering officers. In Shah v HSBC Private Bank,23 the bank had redacted the identities of those making the reports. It was alleged that those identities were relevant to the case that the bank had acted in bad faith in refusing to effect certain payments. The judge, Mr Justice Coulson, concluded that the identities were relevant but that public interest immunity applied. In considering the exercise of discretion, he arrived at an interim solution which involved allocating codes for each of the employees so that the applicant would become aware at least of the pattern of reporting. On appeal, the Court of Appeal reached the conclusion that the identities were not relevant: the case was too speculative.24 Thus they did not deal with issues concerning public interest immunity.

11.5 WHISTLEBLOWERS There is generally perceived to be a public interest in encouraging and protecting those who speak out about perceived wrongs. Thus, for example, an employee who makes a protected disclosure is entitled to certain protections under the Public Interest Disclosure Act 1998. The protection broadly applies provided that he acts in good faith and reasonably believes that the information he discloses is substantially true. Even outside this Act, disclosures may be made to regulators or law enforcement agencies. Someone affected by such disclosures may wish to dispute the allegations and take steps to vindicate their position. They may wish to bring a claim against the whistleblower for negligence, for defamation or for malicious falsehood. It is certainly arguable that Norwich Pharmacal should not generally be available to reveal the identity of such whistleblowers on the basis of the public interest in protecting his anonymity and thus the broader regime. Until recently, the one case which dealt, albeit indirectly, with these issues was P v T25 where an employee was dismissed on the basis of anonymous allegations of gross misconduct. There relief was granted so that the employee would have the opportunity to clear his name. However, the position of a whistleblower arose recently in the case Noordeen v Hill and Health Research Authority.26 The case concerned a spinal surgeon who had sought permission to carry out a research project, as required, from a Research Ethics Committee appointed by the local NHS health authority. The committee rejected the application. One of the members of the committee subsequently received information from certain clinicians suggesting that the surgeon was using the technique, that his patients were being disadvantaged and required more x-rays. The committee notified the hospital so that it could conduct investigations. In fact, the surgeon was permitted to use the technique, which had the necessary clinical approvals, provided that he was not doing so as part of a research project. The surgeon applied for discovery of the names of 23 [2011] EWHC 1713 (QB). See also the obiter comments in R v H, P, S and T [2004] EWCA Crim 3325. 24 [2011] EWCA 1154. 25 [1997] 1 WLR 1309. 26 [2012] EWHC 2847 (QB).

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the clinicians that had provided information to the REC, alleging that they were motivated by malice. Mr Justice Males rejected the application. He considered that there was no arguable case of defamation because the defence of qualified privilege would be available (because the clinicians had an interest and duty in expressing their concerns to the REC). He would in any event have refused relief in the exercise of discretion. As well as the weakness of the case, he concluded that ‘people should be allowed to express their concerns about medical practitioners to responsible people without fear of litigation’ and that requiring disclosure in the present context could have serious repercussions since people would be less willing to raise concerns.27 He drew an analogy to the protection of journalistic sources under Article  10  ECHR. He considered that, at least absent very compelling evidence of malice, the public has an interest in concerns being expressed to appropriate persons and that the ready grant of relief would have an undesirable chilling effect on this. It is an open question whether disclosure would have been permitted if the case had arisen as a disclosure application during ongoing proceedings in which the identity was relevant. The question then would be whether the categories of public interest immunity could be extended to protect the source. The decision in Noordeen is confined to the exercise of a discretion.

11.6  REVEALING INNOCENTS Another objection is that the relief will lead to identification of innocent parties. This does not generally appear to be a ground in itself for refusing relief. However, it is likely that the court will have particular regard to the interests of anyone who has not even arguably done anything wrong. Whereas the court may be willing to override sensitivity about revealing an identity where the relevant person has committed, or at least arguably committed, a wrong, greater caution may be exercised in relation to the entirely innocent. In Arab Satellite, the court refused relief which would have revealed the identities of both innocent and (alleged) wrongdoers alike. The case is best understood as a response to the political sensitivities about the persons that would have been named and the potential impact upon freedom of speech.28

11.7 WRONGDOING As well as being a threshold requirement, the strength of the case on wrongdoing may be a factor relevant to discretion. If the case is sufficient to pass the threshold, but is nonetheless weak, this will weigh against relief being granted. This has been dealt with in Chapter 7.7 above. In addition, it may be relevant to consider the respondent’s connection to the wrongdoing. As has been seen,

27 [2012] EWHC 2847 (QB) paras 53–54. 28 See further Ch 7.5 above.

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there is of course no requirement that the respondent be anything other than an innocent party who has been inadvertently involved in some way.29 Nonetheless, the extent to which the respondent can be regarded as a wrongdoer may be a relevant consideration, as described in Chapter 8.6.

11.8  LIMITATIONS UNDER OTHER REGIMES There may be fields in which the law makes specific provision for access to information and yet does not extend sufficiently to cover the relief sought. Examples include the relationship between a shareholder and a company; or between a trustee and beneficiary. Careful consideration will need to be given to whether that specific regime effectively excludes Norwich Pharmacal relief, either entirely or in all but exceptional circumstances.30 This is more likely to be significant where broader disclosure is sought, as in cases seeking the missing piece of the jigsaw. The statutory regime governing evidence for use in foreign proceedings under the Hague Convention may be said to fall into this category.31 Another example is provided by Parkinson v Hawthorne32 which concerned an application for inspection of the Land Registry index of proprietors. Mr Justice Patten considered that the obvious question was whether the jurisdiction33 ‘is excluded or limited by the fact that under the [Land Registration Act 2002] and the [Land Registration Rules 2003] a much more prescribed right to gain access to the index is granted to members of the public’.34 He concluded that relief was not precluded: there was a distinction between mere curiosity and circumstances where a party was seeking to enforce legal rights, including judgment. In Re Branchempire,35 a liquidator had brought proceedings against the former director of a company and his associates. The liquidator proposed to compromise those proceedings, influenced in part by the means available to the defendants. The principal creditor objected and sought disclosure from those defendants as to their means and from the Land Registry as to the properties held by the defendants. The case was brought under CPR  31.17 and Norwich Pharmacal. For both purposes, the court concluded that the relief was not necessary because the creditor’s rights were protected by the Insolvency Act 1986. The application sought a ‘back door’ route to supplement the rights otherwise available. By contrast, in Zeinal-Zade v Mills36 Mr Justice Briggs granted an application made by a son in respect of details concerning his father’s estate, notwithstanding 29 See Ch 7.1 above. 30 An example is College of Opticians of British Columbia v Coastal Contacts 2010 BCSC 104 CanLII, in the Supreme Court of British Columbia, where relief was refused, inter alia, because there was a statutory regime for accessing information. The applicant in that case was a body with statutory powers. 31 See discussion in Ch 14. 32 [2008] EWHC 3499 (Ch). 33 He was considering both Norwich Pharmacal (referred to as the inherent jurisdiction of the court) and disclosure under CPR 31.17 or s 34(2) of the (now) Senior Courts Act 1981. 34 [2008] EWHC 3499 (Ch) para 11. 35 [2010] EWHC 3017. 36 The decision is unreported and no transcript is available so little assistance can be derived from it.

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the existence of an administrator overseeing the intestacy, in Tunisia. The judge appears to have been persuaded that the applicant had grounds for pursuing the application since no progress had been made in 11 years. Another illustration might be the extent to which Norwich Pharmacal principles should be used in support of arbitration. As discussed in Chapter 16, the English courts have no power to order third party disclosure under CPR 31.17 in support of an arbitration even where requested by the arbitrators.37 By contrast, there would seem to be no reason in principle why the courts should not have the power to grant relief under Norwich Pharmacal principles,38 particularly following a request from the arbitrators.

11.9  ALTERNATIVE AVENUES The possibility of obtaining discovery by other avenues will often be raised by a respondent as a way to resist disclosure. The issue typically, though not always, arises where the discovery sought is information or documentary disclosure, rather than a pure identity. It is suggested below that the real issue is one of priority amongst different avenues.

11.9.1  The relevant authorities In a UK context, there are three routes to obtaining disclosure in the context of proceedings, the first of which is likely to be most significant: (i) pre-action disclosure under CPR 31.16;39 (ii) disclosure during proceedings, including both documentary disclosure and further information;40 and (iii) third party disclosure during proceedings under CPR 31.17.41 The issue as to alternative avenues has often been addressed as an aspect of the necessity requirement. One difficulty, as described in Chapter 9.1, is that a number of the cases in this area have applied a test of necessity which has since been considered to be too stringent. Mitsui is the principal case dealing with the availability of relief where pre-action disclosure may be available.42 Nikitin deals with a scenario in which the same disclosure would have been available during the course of the proceedings.43 In both cases, relief was determined not to be

37 BNP Paribas v Deloitte & Touche [2003] EWHC 2874 (Comm); Assimina Maritime v Pakistan Shipping [2004] EWHC 3005 (Comm); Tajik Aluminium Plant v Hydro Aluminium [2005] EWCA 1218. 38 Glidepath v Thompson [2004] EWHC 2234 confirms that the existence of an arbitration agreement does not oust Norwich Pharmacal entirely: see paras 41–43. 39 See Ch 16.1 below. 40 It is important to recognise that the mere fact that some disclosure can be obtained will not always be an alternative avenue to the same relief. For example, the identity of a wrongdoer will only be revealed by any of these processes where relevant to the issues arising in the particular dispute. For the purposes of conventional disclosure, an application to identity another party will be considered under Norwich Pharmacal principles. 41 See Ch 16.2 below. 42 [2005] EWHC 625. 43 [2007] EWHC 173.

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necessary in light of those other alternatives. However, on the test of necessity, both Mitsui and Nikitin cannot stand in light of subsequent cases.44 That said, other aspects of the reasoning may remain persuasive. Mitsui arose out of the sale by the EnCana group to the Nexen group of an English subsidiary. Mitsui wished to investigate whether this sale had been solicited by EnCana in breach of a prior agreement precluding such solicitation. Mitsui was considering bringing proceedings against the EnCana parent, a Canadian Corporation. To assist in making this decision, it sought disclosure by the subsidiary that had been sold, now re-named Nexen Petroleum UK Limited. The judge ultimately concluded that the information could be obtained by way of pre-action disclosure from EnCana itself under CPR 31.16.45 Similarly, it may be difficult to challenge the basic proposition in Nikitin that Norwich Pharmacal relief should generally be the ‘third and last port of call’ after disclosure during the proceedings and pre-action disclosure under CPR 31.16. A better view may be that a good reason will be required to explain the choice of one of several available avenues and it seems likely that the courts will favour avenues that are more closely connected with the wrongdoing and wrongdoer, where known. The applicant will encounter greater resistance when seeking relief from an innocent third party. Such an approach is to be contrasted with the outcome in cases such as Arsenal and Carlton. In both of those cases, relief was granted under Norwich Pharmacal as an alternative. In Carlton, the judge’s primary conclusion had been that the applicant did not have enough to bring a claim without the discovery sought.46 However, he noted that, if he was wrong, discovery would ‘make the position absolutely clear’ and thus, as a discretionary factor, this supported making an order. The alternative would have been to require Carlton to begin the proceedings against VCI, knowing that, since VCI did not have the information, this would then lead to disclosure being sought against VDC in any event. It could then be ordered under CPR 31.17, subject to the restrictions on the exercise of that jurisdiction. As the judge said when addressing proportionality: ‘Well, these are business contracts. There are significant sums involved. As a matter of proportionality in any event this information goes straight to the heart of the potential claim against VCI. It is the fastest, clearest and shortest way of getting there.’ Another similar example is Arsenal FC and others v Elite Sports Distribution.47 The case concerned calendars published by Elite which included photographs of Premier League footballers. It was common ground that there was regime by which photographers were only allowed to take photographs from the pitch side under certain licences issued by the Premier League, which restricted the use of the images. Various football clubs and the Premier League brought proceedings against Elite on the basis that they had either obtained the images from licensed photographers, in which case they would be liable for knowingly procuring a 44 See Ch 9.1.2–9.1.8. 45 In so doing, he rejected the submission that there were jurisdictional objections to ordering preaction disclosure against a Canadian company, albeit one registered in the UK as a foreign company: para 32. 46 [2003] EWHC 616. 47 [2002] EWHC 3057 (Ch).

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breach of contract, or had obtained them without consent from the photographers, in which case they must have done so by stealing the images or misrepresenting the purpose for which they were intended, which would constitute deliberate interference with the clubs’ economic interests by using unlawful means. This was met with an application to strike out the claim. For their part, the clubs brought an application for Elite to identify the photographers (or agencies) on Norwich Pharmacal principles. The deputy judge, Geoffrey Vos QC, concluded that there was a legal basis for the claim and that, although several factual permutations were possible, the claim was not wholly speculative as a matter of fact. It survived a strike out. He then ordered disclosure within the action, under CPR 31.12, which was sufficient to cover the identities sought. One of his reasons for rejecting the strike out application was that the claimant could then have applied for and would have obtained pre-action disclosure under CPR 31.16. Striking out the claim would just have led to further procedural steps to achieve the same ends. In view of his conclusion that disclosure could be made under CPR 31.12, the judge did not need to consider Norwich Pharmacal. However, he concluded that he would have ordered the relief on that basis if he was wrong to make the order under CPR 31.12. The interesting point for present purposes is that, as the deputy judge had concluded already, CPR  31.16 would in those circumstances have provided an alternative avenue.48 This factor was not expressly mentioned by the deputy judge when considering Norwich Pharmacal. Nor did he specifically mention necessity. Nonetheless, the case may be interpreted as an illustration of a circumstance in which relief might be granted even where pre-action disclosure would have been available against the same respondent, another pragmatic conclusion, like Carlton. Although the strict hierarchy envisaged by Nikitin and, to a lesser extent, by Mitsui are not to be followed, an applicant must be cautious when considering Norwich Pharmacal relief where other avenues exist. One would normally expect an applicant to show some reason why the intrusion imposed by Norwich Pharmacal upon a third party is to be justified where there are other avenues, such as CPR  31.16. The test adopted in Campaign Against Arms Trade49 (itself derived from Mitsui though reinterpreted), was whether there was any practicable alternative. All that said, it must be recalled that, in Carlton, relief under Norwich Pharmacal was justified as ‘the fastest, clearest and shortest way’ of obtaining (in that case) the missing piece of the jigsaw. This may be a factor that will weigh in favour of allowing relief even if other avenues do theoretically exist.

48 In some cases there might be an argument that the identities of other alleged wrongdoers are not relevant to the pleaded issues. This point is not explicitly addressed in this case. This is no doubt because the pleading made allegations about procuring breach of contract by those other wrongdoers and interference with economic interests, to which issues the identities of those others would have been relevant. 49 [2007] EWHC 330.

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11.9.2  Legislative provisions The discussion above has focused upon the typical avenues available in litigation. There may be other avenues available. One general provision is section 7 of the Data Protection Act 1998, which gives an individual the right to access information about them held by a data controller (as defined). The Freedom of Information Act 2000 may also be relevant in some cases. This creates a right to obtain information from a long list of public authorities and certain publicly owned companies, subject to detailed exceptions. The statute will be of obvious relevance in the context of possible proceedings against a public authority. However, its potential relevance is of course much broader. There may be cases in which information relevant to proceedings against a private party may be obtained from a public authority under this Act. If there is a possibility that such a right exists, an applicant for Norwich Pharmacal relief should explain why this avenue is not pursued. The possible availability of information under the Act may weigh against the exercise of discretion.50

11.9.3  International considerations Extra-territorial issues are addressed separately, in Chapter 14. As described there, recent developments suggest that there may be significant constraints, derived from statute, upon the availability of relief where proceedings are ongoing overseas. Leaving that issue of principle to one side for present purposes, this section addresses whether, in international disputes, the prospect of obtaining the documents or information via overseas proceedings (live or contemplated) means that relief should not be refused if sought in England under Norwich Pharmacal. Mohamed and Aamer both concluded that the possibility of obtaining materials through overseas proceedings was not enough to exclude Norwich Pharmacal relief. In those cases, which involved exceptional facts, such avenues were too uncertain and would have taken too long.51 The court considered that disclosure was necessary in the short term to enable the respective applicants to make submissions to the authorities. The opposite conclusion was reached in Omar on the point of principle but also on a number of alternative grounds, including necessity. The Divisional Court there concluded that necessity could not be established until an application had been made to the courts in Uganda, which were dealing with the dispute.52 Similarly, the Court of Appeal in Omar concluded that relief would not be necessary since no application had been made to the Ugandan court. Whilst there was nothing inappropriate about taking ‘tactical’ decisions about where to bring proceedings, this would not provide the applicants with a ‘free trip around the 50 See the decision of the Federal Court of Australia in Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm [1987] FCA 266, concluding that the availability of procedures under the Freedom of Information Act 1982 would be a ‘material factor’ in any attempt to utilise the old equity procedures, ie Norwich Pharmacal: para 21 of the judgment of Gummow J. 51 See, in particular, Mohamed [2008]  EWHC  20048 at paras 109–126, particularly the summary conclusions in 126. For Aamer, see [2009] EWHC 3316 (Admin). 52 [2012] EWHC 1737 (Admin) paras 84–86.

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requirement of necessity’.53 The Court of Appeal emphasised that this was not a case in which the fairness of the overseas court had been called into question.54 The suggested risk that the respondent would fabricate documents was not significant since, if this occurred, the legal representatives and the Ugandan court would be able to expose this. The concept of ‘soundly based comity’ required that the English court should leave such matters to that court.55 Two aspects of the decision in Rusal are also relevant to the issue of alternative avenues in an international context.56 As explained above, that case concerned an application by Rusal, principally for disclosure of transactional documents. The judge noted that disclosure might be obtained in proceedings that had also been initiated by Rusal in Connecticut and New York. Both were discovery applications, made under 28  USC § 1782. Those proceedings were against the principals whereas the English application was against lawyers. The judge concluded that it could not be necessary to make the order in England against the lawyers before it was known whether disclosure could be obtained in those two US proceedings. As a postscript to the judgment, the judge noted that disclosure had in fact been ordered in the Connecticut proceedings. Until it had been determined whether this had produced all relevant documents, this provided a further reason for concluding that disclosure was not necessary in the English application.57 In addition, the disclosure sought in Rusal was for the purposes of substantive proceedings in Russia and Nevis58 (the judge having rejected the request for disclosure to assist at a forthcoming EGM). Those proceedings had been stayed pending disclosure by the applicant, Rusal. The judge therefore concluded that on this basis it could not be said to be necessary for the English Court to order disclosure. In dealing with these issues, it may be that discretion rather than necessity is a more appropriate basis.59 This can be illustrated by imagining that two Norwich Pharmacal applications are possible in England, against two different respondents. It would not make sense to say that neither application should be granted since neither is necessary because in each case there is an alternative avenue available. The better view would be that the court would weigh which was more appropriate given the intrusions involved in each. Something similar formed the basis for an alternative ground of decision in Mitsui where it was said that, if relief had been appropriate at all, it should have been sought against

53 [2013] EWCA 118, para 32. 54 Ibid, para 33. See Ch 9.1.5 above on the necessity test in this case. 55 [2013] EWCA 118, para 34. 56 [2011] EWHC 404. 57 Ibid paras 151–152. 58 The Nevis proceedings are described in para 34. In para 53, the judge records that disclosure was sought for the purposes of the proceedings in Russia and in Nevis. This is reflected in the title of his relevant conclusions, ‘The Russian and Nevis Proceedings’ (paras 132–137). The Nevis proceedings are not mentioned explicitly in the relevant portion of the judgment. 59 This appears to have been the approach adopted in by Deputy Bailiff Bailhache in Jersey in New Media Holding Company v Capita Fiduciary Group [2010] JRC 117, where relief was refused on the basis, inter alia, that the procedure should not be allowed to supplement disclosure that would be available in substantive proceedings that were ongoing in New York.

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the principal.60 That conclusion was rightly expressed in terms of discretion. It is suggested that the same should apply where one of the two applications is made overseas. That is best regarded as an exercise of discretion, rather than, as in Rusal, as an aspect of necessity. In Omar, the Court of Appeal reached its ultimate conclusion on necessity only after taking account of ‘soundly-based comity’.61

11.9.4  Will or might be forthcoming? Some of the above examples (typically those also involving considerations of comity) concern situations in which the courts have refused relief, or at least deferred a final decision, where the information might be forthcoming by other avenues. This represents a determination as to priority between the various procedures. By contrast, there are cases such as Mitsui where the Court has sought to determine whether documents would in fact be available by the alternative route. The real issue is whether the application is one that properly falls within the scope of another procedure, such that a refusal of relief within that procedure would weigh heavily against relief under Norwich Pharmacal. Thus, for example, in the Rusal case, if the Russian Courts had the power to order relevant disclosure and yet declined to do so, that might well be a material factor against granting disclosure in Norwich Pharmacal proceedings. A  similar conclusion might be drawn if there is a principled reason why, for example, the pre-action disclosure regime is not available. If the applicant has agreed not to bring substantive proceedings against the respondent and thus cannot establish that the respondent is likely to be a party for the purposes of CPR 31.16, the inability to obtain preaction disclosure should not perhaps be seen as a gap to be filled by Norwich Pharmacal. That would not suggest that Norwich Pharmacal would be excluded entirely, but rather that caution should be exercised.

11.10  INTERNAL INVESTIGATIONS In some cases internal investigation may provide an alternative avenue. This does not however appear to have featured prominently in the authorities. In Ashworth, for example, it was accepted that an appropriate investigation had been conducted without success.62

60 [2005] EWHC 625, para 38. The applicant had sought to purchase a subsidiary of the EnCana group but it was sold to another. The application was brought against the subsidiary, now in new ownership. The judge considered that a more obvious target would have been the EnCana holding company. 61 [2013] EWCA 118, para 34. 62 In Coca Cola v British Telecommunications [1999]  FSR  518 the disclosure sought related to an address and the judge noted that, on the evidence, the applicants had made reasonable attempts to obtain that address by other means. The applicants had a mobile number and it seems likely that (as recorded in the headnote) they had at least attempted to call the number.

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In Louis Feraud v Unico63 the applicant sought disclosure from a retailer as to its suppliers. It was argued that the garments in question could not have been supplied without at least a breach of contract. The relief was refused on a number of grounds. The judge, Mr Justice Lindsay, drew attention to the fact that the sales had been known to the applicants for some time and yet there was no evidence as to investigations having been conducted. He also noted that it would be possible to mark the garments in such a way that, over time, it would be possible to limit the possibilities. He referred to the ‘necessity’ test and the requirement that there should be no other way in which the information could be obtained. This probably sets the hurdle too high in light of more recent authority, but the case is nonetheless informative on the steps that might be required to demonstrate that adequate investigations have been undertaken. In John,64 the lack of any proper internal investigation meant that the relief was not granted. However, this was a case dealing with section 10 and the conclusion appears to be confined to that context. As explained above, the Court of Appeal considered that relief would have been granted but for the fact that the situation involved journalistic sources and thus section 10. The issue in John related to whether an investigation had been conducted at the relevant time. It appears to have been assumed that no new investigation would be effective. Of most general interest is Campaign Against Arms Trade where an investigation had been conducted. It was argued that the body had not done enough. This submission was rejected. Nonetheless, it seems that the body had reached the limits of what it could do itself without approaching third parties. It did not, for example, operate its own email system since its members tended to use accounts provided by others. It seems that a further investigation was possible with the cooperation of those others, but the application was sought to reduce the scope of what would otherwise be purely a fishing expedition.65 The judge’s ultimate conclusion was that the respondent was the only practicable source of the information sought having regard to the investigation already conducted and the urgency of the need to identify the source.66 In other circumstances, particularly without the timing constraint, a judge might require further exploration of what could be obtained from those who operated the relevant email systems. There may be a situation in which several avenues might exist for Norwich Pharmacal relief. It is not entirely clear what significance attached to the fact that the email systems were operated by third parties. The logic of the decision, expressed in terms of what is practicable, would suggest that relief might be available even where internal steps could still be taken. For example, the judge noted that further investigations would have required the ‘costly services of a computer expert’. That factor, or even the substantial management time involved, might suggest that Norwich Pharmacal relief might be available even if internal avenues remain to be explored.

63 [1996] CLC 122. 64 [2000] 1 WLR 1931. 65 [2007] EWHC 330 paras 45–47. 66 Ibid para 91.

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In Cembrit v Apex Roofing,67 the applicants sought an order to identify the source of a leak. The judge, Mr Justice Kitchin, recorded that they had taken steps to investigate their own computer systems. The identity had in fact been revealed by the time the matter fell to be determined after trial (principally on a substantive counterclaim). It transpired that the applicants had in fact discounted the culprit on the basis that he was a consultant retained by them and they had no reason to suspect him. Their investigations had been targeted at their own computer systems and their own employees. The judge did not consider (albeit with the benefit of hindsight) that this restriction on the investigation presented any obstacle. There was no reason to suspect the culprit and, if asked, he would no doubt have denied being the source. Another relevant authority is RFU  v Viagogo, considered above.68 The submissions that the RFU could have organised its operations differently, could undertake spot checks or could seek information from the original ticket holders were all rejected. To a certain extent these alternatives deal with future wrongdoing but, at least in part, they also dealt with alternative avenues to discover past wrongdoers. The RFU had distributed the original tickets and could make enquiries from the clubs and others in an effort to identify the wrongdoers. Nonetheless, the judge appears to have concluded that this would be impractical. It would certainly seem a blunt tool because, absent cooperation from the wrongdoers, there seems to be no way in which the RFU could have made a successful identification. The point is not explored at any length in the Court of Appeal or Supreme Court. The court is also likely to take into account other rights that might exist to obtain information. In an appropriate case, it may be relevant that issues can be raised and explanations sought at shareholder meetings. If such an avenue might be available, one would expect the court to require good reason before granting relief at least in advance of attempts being made by this route.69

11.11  INCONVENIENCE AND COST It has been clear since the original Norwich Pharmacal case that, as a starting point, true third parties should not be imposed upon by requiring them to become involved in litigation. Even where the thresholds have been passed, that spirit remains. Thus in Ashworth the House of Lords made clear that the jurisdiction ‘is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary’.70 Lord Woolf noted the inconvenience to third parties of becoming embroiled in proceedings through no fault of their own.71 Against this, the duty to assist will only apply where the party has been involved, albeit innocently, in another’s wrong. There is also an indemnity for

67 [2007] EWHC 111 (Ch). 68 See [2011] EWHC 764 (Tugendhat J); [2011] EWCA Civ 1586 (CA) and [2012] UKSC 55. 69 See BNP Paribas v TH Global [2009] EWHC 37 where the point was mentioned in passing at para 31. 70 [2002] 1 WLR 2033 para 57. 71 Ibid para 38.

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costs.72 The fact that the respondent may feel obliged to oppose because of confidentiality and privacy concerns will of course add to the cost but is likely to be regarded as something that can be compensated in due course by the applicant meeting the respondent’s costs.73 In addition to cost, the discovery itself can in some instances involve substantial work and thus inconvenience.74 Whilst an affidavit revealing a name may be a small inconvenience, there have been examples of broader disclosure, as described in Chapter 10.2. In a broadly drafted application, the level of imposition upon the respondent will be a material factor. It is likely to be linked closely to consideration of other avenues. Even where it is appropriate to grant relief under Norwich Pharmacal, this will typically be confined to a particular piece of missing information. Once that information is known, other avenues will often be more appropriate. That said, there can be circumstances where ‘full information’ can require more, including a modest and sensibly confined search.75

11.12  INABILITY TO ASSIST It may not always be apparent that the respondent can provide information or documents that will assist. This may be particularly significant in cases involving documents where the value of the disclosure may be harder to assess in advance. In a Bankers Trust context, the test appears to be whether there is a real prospect that discovery of the material will assist in tracing.76 An equivalent test has been applied in a Norwich Pharmacal context where relief was granted to assist in identifying a known person as a wrongdoer.77 An interesting illustration is Michael O’Mara Books v Express Newspapers.78 The case concerned the manuscript of a book which had been due for serialisation in one newspaper when a series of articles appeared in another newspaper. It was alleged that those articles were based upon the book and that the manuscript had been stolen. Police investigations had identified two individuals, one of whom (Mr Monk) was the deputy editor of the newspaper that had run the articles and the other his wife. They had possession of copy manuscripts at their house, which had been searched by the police. The publisher and authors of the book obtained summary judgment against Mr and Mrs Monk. They also sought disclosure orders seeking to identify the original source. Mr Justice Neuberger (as he then was) granted the orders. Mrs Monk had resisted on the basis that she had given such disclosure as she could; that she obtained the manuscript from 72 See Ashworth [2002] 1 WLR 2053 at para 36 recording the relevance of this to the discretion. 73 See Ch 12.4 below for consideration of costs generally. 74 For an extreme example, see the Hong Kong case of Wellcome Foundation v Attorney General [1992]  HKLY  567, unreported, in which two paragraphs of the order originally made were said on appeal to involve 245 days of work which would jeopardise the functioning of the Customs and Excise department. These paragraphs were overturned on appeal to the Hong Kong Court of Appeal. 75 The disclosure envisaged in Mohamed was potentially extensive. Further, the case of Patel v UNITE is authority for conducting a reasonable search, as described in Ch 10.2.2 above. 76 Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911 at 918f 77 Kalmneft [2002] 1 Lloyd’s Rep 417, a decision of Judge McGonigal in the Leeds Mercantile Court. 78 [1999] FSR 49.

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her husband’s briefcase. However, the judge concluded that she had not said in terms that she had no knowledge of the original source. In a police interview, she had said that her husband had not told her where he obtained the copy and she had confirmed in a statement to the court that her answers to the police were true. However, in making that last statement, the judge was not satisfied that Mrs Monk had concentrated on every single answer given to the police in the course of the interview. In addition, the judge added that ‘for all I know’ she may have had a source of information other than the husband indicating the provenance of the copy. Moreover, there were reasons for thinking that she may know more than she had revealed since, during the undercover operation, she had said that the copy came from Finland.79

11.13  SELF-INCRIMINATION AND THE RIGHT TO SILENCE The privilege against self-incrimination is derived from the common law, described as a ‘rule … that no one is bound to answer any question if the answer … would … have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be … sued for.’80 It is preserved now in section 14(1) of the Civil Evidence Act 1968, where it is limited to criminal offences under the law of any part of the UK.81 The risk of a charge must be real and appreciable as distinct from remote or insubstantial.82 Parliament has further narrowed the scope of the privilege by preventing its use in certain circumstances.83 These statutory exceptions have been described as being ‘probably more numerous than is generally appreciated’84 and have been viewed as ‘a piecemeal, apparently rather arbitrary’85 group of exceptions which do not represent a coherent code. In the present context, the most significant are the exceptions in section 72 of the Senior Courts Act 1981 (privilege not available in proceedings for ‘intellectual property’ infringement, broadly understood,86 and passing-off) and section 13 of the Fraud Act 2006 (privilege not available, to the extent it relates to an offence under the Act or related fraud offences, in any proceedings related to property). There is a significant caveat that the evidence is not admissible in any related criminal proceedings.87 As explained in Chapter 7.1, relief is available under Norwich Pharmacal against someone actively involved in the wrongdoing, not just someone who is

79 An order was also made against Mr Monk, who had resisted on a different ground, s  10 of the Contempt of Court Act 1981. 80 Blunt v Park Lane Hotel [1942] 2 KB 253, per Goddard LJ 81 Though note, as in Mohamed ([2008] EWHC 2048 (Admin), para 77), that, for example, war crimes committed elsewhere may constitute an offence under the laws of England and Wales. 82 Rio Tinto Zinc Ltd v Westinghouse Electric Co [1978] AC 547. 83 Examples include s 72 of the Senior Courts Act 1981, s 31 of the Theft Act 1968, s 13 of the Fraud Act 2006, s 98 of the Children Act 1989, s 433 of the Insolvency Act 1986, s 434 of the Companies Act 1985, s 2 of the Criminal Justice Act 1987 and para 5 of Sch 6 to the Terrorism Act 2000. 84 Lord Mustill in R v Director of Serious Fraud Office, ex p Smith [1993] AC 1, at 40. 85 Lord Neuberger MR in Coogan v News Group Newspapers [2012] EWCA Civ 48. 86 To include commercially confidential information: Phillips v News Group Newspapers [2012] UKSC 28, also known as Phillips v Mulcaire. 87 See, for example, s 72(3) and s 13(2) respectively.

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innocently involved. Accordingly, in appropriate circumstances, the respondent may seek to assert the privilege. An early example in a Norwich Pharmacal context is provided by British Steel,88 where the respondent television company was in principle allowed to claim privilege, though this was rejected on the facts since, even if there was a real and appreciable risk of prosecution, revealing the identity of the source would not tend to incriminate them.89 It would not strengthen the case against them. A more recent example is Kensington International Ltd v Republic of Congo,90 a case concerning post-judgment disclosure. There, the disclosure sought related to alleged corrupt payments made by the respondents to the primary defendant. The respondents’ claim of self-incrimination privilege was rejected by Mr Justice Gross and by the Court of Appeal on the basis that the exception in section 13 of the Fraud Act 2006 applied. This turned upon whether the Norwich Pharmacal proceedings ‘related to property’ given that, on one view, they would be complete when disclosure was given. However, the Court of Appeal concluded that the statutory wording was broad enough to cover the Norwich Pharmacal proceedings, notwithstanding that they might involve an independent action. Even where no privilege applies, there is a principle that caution must be exercised before someone who is suspected of wrongdoing will be required to provide an explanation before any proceedings are brought. This will only be of relevance where the respondent is also an alleged wrongdoer, not merely an innocent bystander. The principle has been developed in cases concerning the powers of an officer holder under section 236 of the Insolvency Act 1986 and its predecessors. Thus in Cloverbay v BCCI, Sir Nicholas Browne-Wilkinson VC noted that oral examination would provide an opportunity for what amounted to pre-trial deposition. He concluded that it would generally be ‘oppressive to require someone suspected of wrongdoing to prove the case against himself on oath before any proceedings are brought’.91 The point was reiterated by the Court of Appeal in Re British & Commonwealth Plc, with particular emphasis on cases involving an allegation of fraud.92 Similarly, in First American Corporation v Zayed,93 the Court of Appeal concluded that it would be oppressive to accede to a letter of request issued by a US court seeking an oral examination of several witnesses where there were ‘serious allegations of complicity in fraud and the real possibility of being joined as defendants based on that complicity’ hanging over them. This factor was relied upon in BNP Paribas v TH Global94 as one of the grounds for resisting an order that information be provided by affidavit. The judge noted that these arguments had ‘considerable force’ and he declined to order affidavits. He did however order that disclosure of documents be provided and reserved the possibility of ordering affidavits at a later stage.

88 [1981] AC 1096. 89 See, in particular, [1981] AC 1096 per Viscount Dilhorne at 1178D-G. 90 [2006] EWHC 1848 (Comm). 91 [1991] Ch 90 at 103D, G. 92 [1992] Ch 342 at 372 (Ralph Gibson LJ). The point was not addressed in the House of Lords. 93 [1999] 1 WLR 1154. 94 [2009] EWHC 37.

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If the respondent does not wish to claim privilege (or similar) for itself, there is the theoretical possibility that the privilege might be claimed on behalf of the prospective target or third party. In British Steel, Sir Robert Megarry VC said at first instance:95 ‘… the privilege against self-crimination can be invoked only by someone who does so in good faith for his own protection, and not for some ulterior purpose: it is a privilege against self-crimination, and not a privilege against the incrimination of others, or for the protection of them or their property.’

However, when considering the exercise of its discretion, it is likely that the court will consider the impact on intended targets who might wish to assert privilege against self-incrimination. Even so, given the tendency to confine the privilege, it is likely that this factor will only be of significance where the application represents a particularly egregious attempt to bypass privilege. In Hong Kong, in Secretary of Justice v Apple Daily,96 the respondents were the editor and owner of a newspaper which published an article during a criminal trial that resulted in the jury being discharged. The plaintiff sought disclosure of the journalist responsible for the article, with a view to bringing criminal contempt proceedings. The judge refused to grant the order on the basis that this would cut across the right to silence, which was broader than the civil privilege against self-incrimination.

11.14  PRIVILEGE AND LAWYERS 11.14.1 Privilege As has been seen above, one point that is often raised in connection with disclosure against solicitors is privilege. For a full consideration of this subject, the reader is referred to specialised works. One particular issue that may arise in a Norwich Pharmacal context is the exception from privilege, in cases of fraud and criminal activity, for communications which form part of such activity or which relate to covering it up. The leading authority is Finers v Miro,97 where it appeared that the solicitors had been involved in establishing complex chains of overseas companies and trusts designed to achieve secrecy. The solicitors had believed that the secrecy had been a response to concerns about political expropriation, but it now appeared that the money may have been the proceeds of fraud. The principle does not depend upon knowledge or active involvement by the solicitors; their involvement can be unwitting. The privilege is lost where it ‘seems probable’ that the legal adviser was consulted for the purpose of a

95 [1981] AC 1096 at 1106. The point was not addressed by the Court of Appeal or House of Lords. 96 [2000] 2 HKLRD 704 The judge relied upon the broader formulation of the right to silence in R v Director of Serious Fraud Office ex parte Smith, above. 97 [1991] 1 WLR 35.

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fraud for which there is a prima facie case (Dillon LJ) or where there is ‘strong evidence of suspected fraud’ (Balcombe LJ).98 In R v W, the judge considered Finers v Miro and appears to have accepted that this would be the proper test to apply to disclosure of confidential information held by solicitors.99 It appears that the focus was upon confidential rather than privileged information. In any event, the test was satisfied.

11.14.2  The special position of lawyers No order can require the production of privileged material. However, it may be that lawyers acting for a party have access to non-privileged information which may be the subject of an application. The first point to note is that there is no bar in principle to such relief.100 However, the courts have approached such situations with caution. In Rusal, for example, the sensitivity of the exercise, particularly if the lawyers are still advising, was one factor suggesting that other avenues should be pursued first.101 There one of the alleged wrongs involved the conclusion of arrangements, including a buy back transaction, to avoid making an offer for the company. The judge found that there was evidence to suggest that the lawyers had been sufficiently involved since they were mentioned as a correspondence address on the ‘forms of contract’ that accompanied one of the transaction documents.102 The judge reasoned ‘If the lawyer drafts the documents, then I do not see why he should be regarded as a mere witness and not involved in any wrongdoing of which (unknown to the lawyer) the document forms a part’.103 The judge considered that there should be no global rule (as had been submitted) that a lawyer could only ever be a mere witness and thus exempt from relief. Issues concerning disclosure against solicitors arise in the context of other jurisdictions (addressed in Chapter 15.6). These cases highlight the balancing exercise that the court is likely to conduct where considering disclosure against solicitors in a Norwich Pharmacal context. For example, in International Credit and Investment Co (Overseas) v Adham,104 Harman J  ordered solicitors to disclose the address of a client (under the court’s jurisdiction over its officers). He considered that the order was exceptional but justified by the circumstances, including the fact that there had been a finding, after a contested trial, that the clients had committed very serious frauds. He also considered that there were attempts to make them judgment proof. In R  (On the Application of the Revenue and Customs Commissioners) v W,105 the court dealt with disclosure

98 The third judge, Butler-Sloss J, agreed with the conclusion. The threshold is based upon O’Rourke v Darbishire [1920] AC 581 and Gamlen Chemical v Rochem (CA, unreported, 7 December 1979). 99 [2008] EWHC 2780 (Admin). 100 See, for example, Marc Rich v Krasner [1999] EWCA Civ 581, 15 January 1999, Kalmneft [2002] 1 Lloyd’s Rep 417; Rusal [2011] EWHC 404 and even CHC Software [1993] FSR 241. 101 Rusal [2011] EWHC 404. 102 [2011] EWHC 404 para 100. 103 Ibid para 108. 104 22 January 1997. Unreported, but transcript available via Westlaw. 105 [2008] EWHC 2780 (Admin).

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to assist in enforcing a confiscation order. It appears that Norwich Pharmacal principles were applied by analogy but, in any event, the discretion would likely be exercised on similar principles. The solicitors had been instructed on behalf of a company. There were issues concerning beneficial ownership and control of that company. The court ordered disclosure by solicitors of the name and address of the individuals who instructed them, together with financial details as to how they were paid, including copies of cheques and any transfer documents. The judge considered that disclosure was appropriate given the substantial amount outstanding on the confiscation order following conviction for a very serious fraud on the public purse. In JSC BTA  v Solodchenko,106 Mr Justice Henderson was considering an application against solicitors for disclosure of contact details of a client. Having concluded that the jurisdiction existed (not on Norwich Pharmacal principles), the judge required disclosure of contact details. He had recited the various factors that weighed against disclosure. In particular, he said: ‘19. The order sought by the Bank would not, of course, involve the disclosure by Clydes [the solicitors] of any actual legal advice which they may have given to Mr Shalabeyev [the defendant], nor would it involve disclosure of any communications passing between Mr Shalabeyev and Clydes for the purpose of obtaining legal advice. But in general I can think of few things more likely to inhibit the exercise by a client of his fundamental right to seek legal advice than an order requiring his solicitor to disclose to an adverse party contact details which were supplied to the solicitor in strict confidence and for the sole purpose of enabling the client to communicate with the solicitor. In my view any such order would tend to undermine the relationship of confidence which must subsist between solicitor and client if the client is to be able to unburden himself freely to the solicitor. There would usually be a real, and not just a theoretical, risk of the client being inhibited from seeking legal advice if it was known from the outset that his confidential contact details were liable to be disclosed to the other side in litigation, merely because the client failed to obey a court order. 20. A further most undesirable consequence would be the spectre of a potential conflict of interest between the client and the solicitor, with the solicitor constantly having to look over his shoulder to consider whether he might subsequently be called upon, as an officer of the court, to reveal to third parties hostile to his client’s interests information of a confidential but unprivileged nature supplied to him by the client. If the door were opened to the making of such orders on a regular basis, I  have little doubt that much thought and ingenuity would then be devoted to attempts to devise defensive mechanisms, with all the expenditure of time, effort and money that this would entail. I also find it hard to see how the solicitor could properly continue to act for the client in any case where the answer to an application for such an order was not obvious.’

The judge also referred to a number of cases which he considered to be valuable illustrations why the appropriate course will normally be to refuse the application against the solicitors.107 Nonetheless, the client had also been made the subject 106 [2011] EWHC 2163. 107 Re Cathcart Ex parte Campbell (1869-70) LR 5 Ch App 703; Heath v Crealock (1872-3) LR 15 Eq 257 and Re Arnott Ex parte Chief Official Receiver (1888) 60 LTNS 109. He also referred to the unreported decision of Harman J  in International Credit and Investment Co (Overseas) v Adham (Disclosure), above.

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of a committal order. This made the difference and thus the judge concluded that contact details should be disclosed. By contrast, the judge did not make an order for disclosure of material that would have been covered by the original disclosure order against the defendant. The particular application was for disclosure of whatever the solicitors knew or reasonably believed the defendant was required to provide under this provision of the freezing injunction. This was too intrusive and would have required the solicitors to make assessments based upon their knowledge of privileged matters. The judge referred to the fact that it would be difficult for the solicitors to provide ongoing advice if required to provide disclosure. In JSC BTA  Bank v Ablyazov and Addleshaw Goddard,108 Mr Justice Teare rejected an application that solicitors should provide details of a newly established conference call facility and specific email account used to provide legal advice to Mr Ablyazov, ‘a contemnor who has gone into hiding in order to frustrate the Court’s orders’. Having previously sentenced Mr Ablyazov to prison for contempt, the judge had made an ex parte order, in reliance upon the Solodchenko case above, requiring his lawyers to provide all contact details to assist in finding him. However, the judge declined to make the further order since the new facilities had been established specifically to enable Mr Ablyazov to obtain legal advice and were confidential.109 He concluded that the details themselves were therefore privileged. The judge also upheld the alternative submission that the order should not be granted since it would have the foreseeable effect of depriving Mr Alblyazov of his right of access to legal advice. The fact that he was appealing against the committal order distinguished the case from Solodchenko. The general resistance to ordering disclosure against solicitors was confirmed recently in a case where the solicitors simply held a convenient collection of documents.110 The basis for the jurisdiction has been said to be an inherent jurisdiction of the Court and/or a feature of the Court’s jurisdiction over solicitors as officers.111

11.15 UNDERTAKINGS The court’s exercise of its discretion may be influenced by the undertakings that the applicant is willing to give, at least to the extent that these counter prejudice that might otherwise arise. In Jade, the judge accepted an undertaking from the applicant that it would not seek to do business with the target supplier, if identified. This mitigated the respondent’s concern (which the judge doubted in any event) that revealing the supplier would prejudice its relationship with that supplier. 108 [2012] EWHC 1252 109 He distinguished Studdy v Sanders [1832] 2 D and R 347, R v Manchester Crown Court ex parte Rogers [1999] 1 WLR 832 and The Queen on the application of Miller Gardner Solicitors v Minshull Street Crown Court [2002] EWHC 3077 (QB), in each of which the privilege had not been a bar to disclosure of information about identities from attendance notes made by solicitors. They were not analogous as the identity information was not subject to confidentiality. 110 Hilton v D IV LLP [2015] EWHC 2 (Ch). 111 SRJ v Persons Unknown [2014] EWHC 2293 (QB).

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There is no general requirement that the applicant will offer a cross-undertaking in damages, as is commonly encountered in the context of interlocutory injunctions.112 There, it is used to mitigate any prejudice if the court ultimately concludes that there should be no permanent injunction and that the interim injunction was wrongly granted. Practice Direction 25A, paragraph  5(1) now records the general requirement. The power derives from the court’s inherent ability to attach conditions to the relief granted.113 Whilst the court may have no power to impose such an undertaking, it may thus determine that no relief will be granted unless the undertaking is given. The undertaking can be extended to benefit third parties.114 That said, a cross-undertaking appears to have been required in the Bankers Trust case itself.115 It has recently been observed that this must have been attributable to the interim nature of the relief granted.116 However, as has been explained above, Norwich Pharmacal relief is typically final117 and thus any parallel to interim injunctions must be treated with caution. Nonetheless, there may be scenarios in which the arguable case of wrongdoing established by the applicant to obtain relief is later undermined by a substantive defence, once identification has occurred. In some such cases, the defence may be one which the applicant would have appreciated if proper investigation had been made. Even without an obligation of full and frank disclosure, it is possible to conclude that such an applicant should be obliged to compensate for the error. A suitably worded undertaking in damages would provide a basis for the Court to require this. An attempt was made in Twentieth Century Fox Film v British Telecommunications118 to argue that a cross-undertaking should be required in a novel third party context. That context involved an order requiring an internet service provider (ISP) to take technical measures to prevent copyright infringement by users.119 No wrong had been being established against the ISP, which argued that it should be entitled to the benefit of a cross-undertaking in damages (as well as its costs of compliance) to cover the possibility of claims by end users. Mr Justice Arnold rejected this on the basis that this was not justified by analogy to existing uses of the cross-undertaking and because it was difficult to see any basis upon which there could be claims against the ISP for

112 There is a reference in Eli Lilly [2008] EWHC 415 (Ch) to the sequence of events around a cross undertaking. However, this was a cross undertaking provided in connection with an injunction. It was not offered in connection with the disclosure of information. It was relevant to discretion only to the extent that it explained delay: see para 43. 113 Smith v Day (1879) 21 Ch D 421. There, Lord Jessel MR describes the origins in ex parte applications for an injunction, extended by degrees to all interim injunctions since ‘it was impossible to be certain on which side the truth lay’. See also Wakefield v Duke of Buccleugh (1865) 12 LT 628, 629 above and, further, SmithKline Beecham v Apotex Europe [2006] EWHC 658. 114 As is common in freezing injunction cases. See Z v A-Z and AA-LL [1982] QB 558 and SmithKline Beecham v Apotex Europe, above. 115 [1980] 1 WLR 1274 at Lord Denning MR at 1282. 116 Twentieth Century Fox Film v British Telecommunications [2011] EWHC 2714 (Ch). The apparent availability of a cross-undertaking in Bankers Trust itself had been relied upon in support of an application to extend the requirement to a novel scenario. 117 See also Ch 12.1. 118 [2011] EWHC 2714 (Ch) (Arnold J), above. 119 Under s 97A of the Copyright, Designs and Patents Act 1988.

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compliance with a court order.120 The judge highlighted that the basis for the cross-undertaking was generally to deal with the situation in which legal rights and liabilities have not been finally determined and it may turn out that an interim injunction has been wrongly granted.121

11.16  OTHER FACTORS It is of course impossible to categorise all factors that might be relevant to discretion. There will be some factors that are relevant only in very particular circumstances. For instance, the Koo case122 provides an example of disclosure being refused on the basis of state immunity. An illustration of another unusual factor is provided by Coca Cola v Gilbey.123 This case concerned trademark infringement and passing off on a grand scale, by a large scale criminal organisation. A  particular defendant was joined and disclosure orders were made against him. He refused to comply, based in part upon a fear of violence. The fear had been briefly stated in evidence and the defendant was unwilling to provide further information since, notwithstanding offers of a confidentiality regime, there was a prospect that his evidence would (with permission of the court) subsequently be revealed to the plaintiffs. The judge, Mr Justice Lightman, nonetheless accepted that there was a ‘real risk of physical violence’ and that this was a factor to be taken into consideration when deciding whether or not to order disclosure. He said that this would carry more weight in the case of a Norwich Pharmacal application than where the disclosure was sought from someone against whom a cause of action lay. In this case the pressing need for the information outweighed the risk of violence. Police protection was the appropriate remedy. The order was upheld on appeal.

120 Similar reasoning appears to have weighed against any general requirement for a cross undertaking in Canada: see Isofoton, (2007) 85 OR (3d) 780 (para 55). See also Autopoietic Telemetric v Loughlin 2012  ONSC  2305. An undertaking has however been required in some circumstances: see Re Mahmoud 2011 ONSC 625. 121 [2011] EWHC 2714 Civ para 36. 122 [2007] EWCA Civ 1443. 123 [1996] FSR 23, which includes both the first instance decision and grounds for refusing permission to appeal.

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Procedural considerations

This chapter provides an outline of the procedure involved in obtaining relief, together with a draft form of order. It then deals with a number of broadly procedural points, including the availability of interlocutory relief, the respondent’s costs, the procedural steps to protect absent interests and any implied undertakings constraining the use of information obtained.

12.1 PROCEDURE In a simple case, such as an application seeking an identity, Norwich Pharmacal relief will typically be sought by issuing a new claim form asserting the cause of action. However, the position may be complicated where other proceedings are on foot or intended, particularly if issues of jurisdiction might arise. It is not uncommon, therefore, for relief to be sought by way of an application issued within existing proceedings, as for the instance in some Bankers Trust scenarios. There have been a number of recent cases emphasising that the practice should generally be to use a Claim Form rather than seeking to begin proceedings by Application Notice, as appeared to be encouraged by previous editions of the Chancery Guide.1 Generally, the abbreviated Part 8 procedure will be appropriate where an applicant ‘seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact’.2 By way of example, the applicants in Sheffield Wednesday,3 Golden Eye4 and Patel5 sought relief by this means. In Sheffield Wednesday the respondent did not oppose the order sought and the facts were not substantially in dispute. In Golden Eye, the respondent had indicated in correspondence that it would not contest the making of the order sought, provided that the terms of the order were approved by its solicitors on its behalf. 1

Towergate Underwriting v Albaco [2015]  EWHC  2874 (Ch) (Master Matthews); Santander v National Westminster Bank [2014] EWHC 2626 (Ch) (Birss J). The current edition of the Chancery Guide (last amended September 2018) indicates that a Pt 23 application notice is likely to be rejected: at para 7.4. 2 CPR 8.1(2)(a). 3 [2007] EWHC 2375 (QB). 4 [2012] EWHC 723. 5 [2012] EWHC 92.

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In more contentious matters, for example in circumstances where it has emerged during inter-partes correspondence that facts are disputed (and consequently cross-examination of witnesses will be necessary), the Part 7 procedure will be appropriate. An example of such a case is provided by Ashworth and the subsequent Mersey Care case, in each of which trials involving cross examination of witnesses were needed to determine disputed facts.6 By contrast, applications by way of Part 23 procedure will likely be appropriate: (i) at an interlocutory stage, generally in cases of particular urgency; (ii) where relief is sought in existing proceedings (for example where relief is sought in Bankers Trust proceedings); or (iii) where jurisdictional issues arise (see further Chapter 14). In Kensington International Ltd v Republic of Congo & Ors7 MooreBick LJ acknowledged the potential for Norwich Pharmacal relief to be sought either by way of a separate claim or ‘by joining the person against whom relief is sought as a defendant to existing proceedings in order to make the application by notice under Part 23’. In that case, the third parties had been joined as parties to the substantive action for the purpose of seeking Norwich Pharmacal relief against them.8 Where jurisdiction is an issue, there have been instances where ‘Persons Unknown’, or the equivalent, have been included, with a description of the substantive case to be brought against them, even though their identity is presently unknown. This issue is addressed further in Chapter 14. The respondent for Norwich Pharmacal purposes may then be served outside the jurisdiction on the basis of being a necessary or proper party for the purposes of the substantive claim in England. The CPR make no provision for Norwich Pharmacal relief to be sought in any particular court or division.9 Where no substantive proceedings exist, consideration should be given as to which is the most appropriate court for any subsequent proceedings, assuming substantive proceedings are intended to follow. Where relief is sought in connection with existing proceedings, it will usually follow that the application should be issued in the court dealing with those proceedings. An application for Norwich Pharmacal relief must of course be supported by evidence, normally in the form of a witness statement. That evidence should be sufficiently particularised to identify the ultimate claim against the wrongdoer and to satisfy the court that the relevant thresholds or requirements discussed in previous chapters are met, including any evidence material to discretion. In ‘missing piece’ cases, evidence might set out a well advanced pleading, sufficiently detailed and structured so as to clearly identify the outstanding information required.

6 See, further, Ch 7.6 above. 7 [2007] EWCA Civ 1128. 8 Para 42. 9 In Mohamed, Aamer and Omar (described in Ch 6.3) proceeding were brought in the Administrative Court and were subject to the requirement to obtain permission.

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12.2  DRAFT ORDERS Draft forms of order are provided in the Appendix. There are two examples. The first is a simple order providing for Norwich Pharmacal relief as to an identity. It assumes that a straightforward claim is being made, on notice, pursuant to the Part 8 procedure. The second, by contrast, is more complicated. It provides an example of an order under Bankers Trust principles and assumes that an application is being made ex parte pursuant to Part 23. It includes a secrecy provision, as addressed below, as well as a penal notice. The inclusion of a penal notice is strictly only relevant if disobedience is anticipated, so that breach can be dealt with by proceedings for contempt of court.10 The wording in the draft order is appropriate where the respondent is a corporate entity and should be revised as appropriate for individual respondents. Without the penal notice, the order will not be enforceable by committal proceedings. For special provisions on service of an order containing a penal notice see CPR, Part 81. The appropriate form and precise contents of any draft order should of course be tailored to the particular facts of any case. The two drafts are intended however to represent either end of a spectrum of potential cases, between which there will be many variations. For example, where information is sought in a ‘missing piece’ case, the applicant may wish to provide that the relevant information, as defined, be provided by way of an affidavit or witness statement11 to be served on the applicant’s solicitors by a certain date and time. It may provide for the respondent ‘to carry out a reasonable search to locate the information sought’ as sought in Patel. It has been said that a Norwich Pharmacal order is an injunction.12 There is some support for this in the context of disclosure orders made under section 37 of the Senior Courts Act 1981 (which deals principally with injunctions) to render another order effective.13 However, a disclosure order would not normally be thought of as an injunction. A conventional order for disclosure against a party to proceedings is not generally so regarded.14 Nonetheless, this categorisation has

10 CPR 81.9(1). 11 There is no requirement for evidence to be provided in either form. Affidavit evidence is not generally required by the CPR (except, for example, in an application for a freezing injunction or search order). Therefore an applicant can choose to provide evidence by affidavit and may wish to consider whether there are any reasons (for example any relevant requirements of foreign jurisdictions) which would render an affidavit a more appropriate choice. 12 Rusal [2011] EWHC 404 at para 138. See also the decision of the same judge, Tugendhat J, in Bacon v Automattic, Wikimedia and Denver Post [2011] EWHC 1072 (QB) in the context of service out of the jurisdiction, considered in Ch 14 below. 13 Maclaine Watson & Co v International Tin Council (No 2) [1989] Ch 286, in which the Court of Appeal (in a judgment given by Kerr LJ) was content to regard the disclosure order as a mandatory injunction under s 37 of (now) the Senior Courts Act 1981. See also the cases cited in Ch 15.5 below. 14 See the conclusion of the BVI  Court of Appeal in Morgan & Morgan Trust Corporation v Fiona Trust HCVAP 2005/24 and again in TSJ Engineering Consulting v Al-Rushaid Petroleum Investment Company HCVAP 2010/13 that a Norwich Pharmacal order was not an injunction and thus did not fall within the exceptions from the general requirement that interim applications required permission before an appeal could be made. Maclaine Watson was distinguished as a case dealing with disclosure to enforce an existing judgment.

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been used to import the doctrine that, as in the case of an injunction, the order must be clear and precise.15

12.3  INTERLOCUTORY RELIEF Since the nature of Norwich Pharmacal relief means that it cannot be undone,16 an interlocutory order is a drastic one. It will give the applicant essentially all that he is seeking. That said, the court can impose restrictions on the use of the information or documents provided. There is in any event an implied undertaking restricting their use to the purposes put forward on making the application.17 Accordingly, the court may in due course require the return or destruction of documents disclosed under an interlocutory order and may prohibit the use of any material as evidence thereafter. These powers may mean that the court can mitigate the effect of interlocutory relief which, it later transpires, should not have been granted. Such mitigation has some prospect of being effective where the relief involves disclosure of documents. As a practical matter, the identification of a name will likely be irrecoverable. In most cases, a final hearing of the application will take place without the need for a trial, on the basis of written evidence.18 However, that is not necessarily the case. In the Ashworth case there had been a trial involving witness evidence.19 There was then a second trial once the source had been revealed to be a freelance journalist. The delay may then raise the possibility of obtaining interim relief. There may of course be other considerations justifying such a course, including the hot pursuit of the proceeds of fraud. In most instances, granting interlocutory relief would be unattractive since it will effectively give the applicant what he seeks, without full determination of the issues. It will make further conduct of the action nugatory.20 However, whilst that necessitates caution, it does not preclude even mandatory interlocutory injunctions. In a Bankers Trust context, relief including disclosure is regularly granted without hearing from the respondent or the target. It is also granted in the context of post judgment enforcement.21 In the context of pure Norwich Pharmacal relief seeking identification, the court has the power to grant reliefon an interlocutory basis but will require exceptional circumstances. In Louis Feraud v Unico22 the court recognised that relief might be granted on an interlocutory basis if the relief would otherwise be totally ineffective such that the applicant was left without remedy.

15 16 17 18

See, for example, Times Newspapers v MGN [1993] EMLR 443. Handmade [1986] FSR 463; Smith Kline [1986] RPC 394 (Cumming-Bruce LJ). Ashworth [2002] UKHL 29 at para 60. See the discussion in Ch 12.7 below. Recent examples include RFU v Viagogo [2011] EWCA Civ 1585, [2011] EWHC 764 and Golden Eye [2012] EWHC 723 In British Steel [1981] AC 1096, the parties agreed to treat the interlocutory proceedings as though they were final: at1120B. 19 See Ch 7.6. 20 See Louis Feraud v Unico [1996] CLC 122 Lindsay J. 21 As in Aiyela itself, [1994] QB 366. 22 [1996] CLC 122.

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If relief is sought on an interlocutory basis, then conventional principles, including American Cyanamid, will apply. The applicant will need to show a serious issue to be tried (and, though likely a formality, that damages would not be an adequate remedy) before considering the ‘balance of convenience’. In the Norwich Pharmacal context, this must include consideration of the interests of the intended target.23 The critical question is whether the delay before the final hearing will cause harm. In this context the final hearing may well not involve a trial and thus the delay may be less than in other proceedings. The balance of convenience would not generally involve a consideration of the merits of the claim. One exception is the line of cases envisaging that it will be appropriate to consider whether there is a ‘high degree of assurance’ on the merits in cases where the interim relief would provide the applicant with essentially all that he seeks.24 There are good grounds for thinking that this should apply, at least by analogy.

12.4 SECRECY In some instances, it will be appropriate to consider whether secrecy is required to prevent the alleged wrongdoer from being tipped off about the application for relief and any outcome, at least until the applicant has had time to consider its next steps once informed of the identity or other information. In such cases, the applicant can proceed by way of ex parte application under normal principles. However, absent special provision, the respondent may well be under an obligation to notify the intended defendant. This may arise particularly in the context of information sought from banks or professional who could otherwise be under obligations to disclose the existence of requests for disclosure to their customers. It may therefore be necessary to seek a ‘gagging order’ on an ex parte basis as a first step and to ensure that any hearings are conducted in private and anonymised.25 There is guidance in Practice Guidance (Interim Non-Disclosure Orders).26 The point had previously been addressed by Mr Justice Tugendhat in G v Wikimedia Foundation in a case concerning an application for Norwich Pharmacal relief to identify a user of the Wikipedia website, who had published what appeared to be private information.27 The applicant sought to obtain anonymity but did not seek any restriction on reporting that an order had been made. Complicated issues can arise where the application is made against a respondent who has made a money laundering (or similar) report, the chief difficulty being that the respondent will likely be prevented from making any reference to that 23 See the discussion of the cases in the intellectual property sphere which have not tended to weigh the intended target’s interests in the balance at Ch 10.2 above. 24 A  mandatory injunction typically but not always requires a ‘high degree of assurance’ as to the claim Shepherd Homes v Sandham [1971] Ch  340 and, for example, Zockoll Group v Mercury Communications [1998]  FSR  354 (CA). In National Commercial Bank Jamaica v Olint [2009] UKPC 16, the Privy Council recently rejected any categorisation according to whether the injunction was mandatory or prohibitory. 25 For a recent consideration of the principles in a Norwich Pharmacal context, see Coward v Harraden [2011] EWHC 3092 (QB), Tugendhat J. 26 [2012] 1 WLR 1003. 27 [2009] EWHC 3148 (QB).

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report under provisions preventing ‘tipping off’ and may feel that this constrains the disclosure otherwise required. The Court of Appeal has said that any ‘gagging order’ would not prevent communication with the appropriate authorities to resolve such concerns.28 In exceptional cases, there may be a need for a separate application to address the interaction between the civil remedy under Norwich Pharmacal and Bankers Trust and any anti ‘tipping off’ provisions. With such practical considerations in mind, the Court of Appeal has indicated that, where time permits, it would seem sensible to give financial institutions at least informal notice of an application, rather than proceeding ex parte.29

12.5 COSTS There are two relevant issues concerning costs: the costs of providing the discovery; and the costs involved in the court application. As to the costs of discovery, the general rule is that, as in the case of preaction disclosure, the applicant must pay these costs.30 There have been cases where an order has been made for a payment into court in advance.31 Such costs are potentially recoverable from the ultimate defendant as damages in any substantive proceedings.32 As to the costs of the application,33 the courts have accepted that the respondent typically has a responsibility to ensure that a proper process has been followed and to protect the interests of the third party whose interests will otherwise be prejudiced. Recent cases have perhaps heightened this sensitivity.34 The courts will order the applicant to bear the respondent’s costs, provided that it has acted legitimately in seeking to ensure proper consideration of the issues.35 The most

28 C v S (Money Laundering: Discovery of Documents) [1999] 1 WLR 1551 at 1557. 29 The third judge, Butler-Sloss J, agreed with the conclusion. The threshold is based upon O’Rourke v Darbishire [1920] AC 581 and Gamlen Chemical v Rochem (CA, unreported, 7 December 1979). 30 Totalise v Motley Fool (CA) [2001] EWCA 1897. This has been said to reflect the broader principle that, where an innocent party has reasonably incurred legal costs to enable a claimant to obtain relief, it would be more unjust for that innocent party to bear those costs: Miller Brewing v Mersey Docks and Harbour [2003] EWHC 1606 (Ch), citing Moet v Pickering (1878) 8 Ch D 372. See also Norwich Pharmacal at 199G (Lord Cross) indicating that the respondent should recover costs of providing the information (and of the application). 31 Murphy v Murphy [1999] 1 WLR 282. 32 See Morton-Norwich Products v Intercen (No 2) [1981] FSR 337, which was a later instalment of the substantive proceedings following discovery in Norwich Pharmacal itself. Mr Justice Graham concluded that the costs of seeking identification from Customs had been ‘plainly foreseeable’: ‘They or reasonable people in their position should have realised that the expense of investigation and discovery of the full facts was highly likely to result from the commission of their torts’. 33 Of course, the position as to appeals may be different. In Norwich Pharmacal itself, the respondent Commissioners recovered costs of the first instance proceedings as it was quite right for them to require the matter to be determined by the court (Lord Reid, 176D, with whom all others agreed on the question of costs; Lord Morris reaching the same conclusion without separate reasoning). However, the Commissioners, having ultimately lost, were not entitled to their costs of the appeals. In fact, no order was made as to those costs because the applicants had put their case on appeal ‘much too high’ (176D). 34 See Ch 12.6 immediately below. 35 Totalise v Motley Fool [2001] EWCA Civ 1897.

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obvious qualification would apply where the respondent is established to be a wrongdoer, rather than just someone caught up in the wrongdoing.36 The leading authority is Totalise v Motley Fool.37 This case arose out of a website discussion board on which members of the public had posted material which was alleged to have been defamatory. The defendant operator of the website removed the postings and barred the user, ‘Z  Dust’. An application was brought under Norwich Pharmacal seeking the identity of ‘Z Dust’. The judge granted relief.38 Turning to costs, he concluded that the situation was very different from the classic Norwich Pharmacal situation since the material was highly defamatory and there was only ever one answer to the balancing exercise against users’ confidentiality. Thus the operator should have provided the information when asked and so the applicant should obtain the costs of the application and of the action.39 It appears that these costs were then summarily assessed.40 The costs decision was appealed by one of the respondents, Interactive, who (by contrast to the first defendant, the Motley Fool) had taken a neutral stance at the hearing. Aldous LJ gave the judgment of the Court of Appeal.41 He reasoned that costs in a Norwich Pharmacal case were akin to the costs of pre-action disclosure under CPR 48.3 and, as such, should in general be recovered from the wrongdoer rather than the innocent respondent.42 In a normal case, the applicant should be ordered to pay the costs of the party making disclosure.43 Here, it was legitimate for Interactive to refuse voluntarily to hand over information, having reasonably agreed to confidentiality.44 It might be otherwise if a respondent is implicated in the tort or crime or seeks to obstruct justice.45 Another example is provided by JSC BTA  Bank v Ablyazov (Tyschenko Third Party),46 where relief had been granted against Mr Tyschenko, with the costs payable by the applicant subject to further order, as part of the attempts to recover assets misappropriated by Mr Ablyazov and others. After several further

36 The Court can of course order indemnity costs: AB  Bank v Abu Dhabi Commercial Bank [2016]  EWHC  2082 (Comm), where the applicant had failed to mention local banking secrecy provisions at the ex parte stage and had acted unreasonably in failing to take up the offer of a joint request to obtain guidance from the Central Bank. 37 The approach can however be traced to Norwich Pharmacal itself: see 176 (Lord Reid) and 199G (Lord Cross), both cited in judgment of the Court of Appeal in Totalise. 38 First instance decision of Owen J [2001] EMLR 29. 39 [2001] 1 EMLR 29, following the main judgment. 40 Referred to in the course of the Court of Appeal judgment, at para 9. 41 [2001] EWCA Civ 1897. 42 See, in particular, paras 29-30. He also cited the speeches of Lord Reid and Lord Cross in Norwich Pharmacal, in which they had concluded that the respondent Commissioners had been right to require the matter to be submitted to the court (whilst, as regards the Court of Appeal and House of Lords, they made no order as to costs because the applicants had put their case much too high). 43 The same principle applies in Hong Kong: Cinepoly v Hong Kong Broadband [2006] 1 HKLRD 255, recording that the payment is to be on an indemnity basis since the opposition and desire for the issues to be dealt with by the Court had been perfectly understandable. An example of the application of the principle given by Chang Wa Shan v Cha Chun Chuen [2009] HKEC 1684, where the judge refused costs of the application on the basis that the respondent’s case had been ‘plainly untenable’. See also Able Force Freight v East Sun [2010] 2 HKLD 1155. 44 [2001] EWCA Civ 1897 para 28. 45 Ibid paras 28 and 31. In the Jersey Royal Court, it has been suggested that where the respondent might be a wrongdoer, the costs might be paid into an account pending determination of that issue: New Media Holding Company case [2010] JRC 117, at para 31(vi). 46 [2014] EWHC 2019. See, in particular, para 116.

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iterations, including cross-examination of Mr Tyschenko, an application was made to vary the costs order. This was granted by Mr Justice Flaux on the basis that Mr Tyschenko could not be regarded as an innocent third party unwittingly caught up in someone else’s wrongdoing; it appeared he had been actively moving the assets. The judge emphasised that he was not concluding that the bank would succeed in a claim against Mr Tyschenko at trial, reasoning that there was nonetheless sufficient material to exercise the discretion as to costs. Although the costs may generally be recoverable from the ultimate wrongdoer, the Court may in some circumstances make special provision. Thus, in Santander v National Westminster Bank,47 where a bank was seeking to recover mistaken payments, often small in size, the order to identify the account holders was granted on condition that the costs of the Norwich Pharmacal application would not be sought against them directly. Finally, it is worth noting that the principle that the applicant pays the respondents’ costs where an order is obtained against an innocent third party, was firmly upheld by the Supreme Court in Cartier International AG and Others v British Telecommunications Plc and another.48 This was a case concerning injunctive relief sought by brand – holders against ISPs who innocently allow counterfeiters and other copyright abusers to market their goods illicitly. In both courts below, the decision had been that the ISPs should bear the costs of implementing the relevant ‘blocking’ injunctions being obtained by the brand-holders. The Supreme Court (Lord Sumption giving the judgment) reversed the ruling in the lower courts. In doing so, he relied heavily on the costs principles developed in the evolution of the Norwich Pharmacal jurisdiction (see para 31).

12.6  ABSENT INTERESTS In some cases, the respondent can be relied upon to raise the relevant arguments against disclosure, including those from the target’s perspective and, if different, any based upon public interest. In cases such as Ashworth, the respondent’s own interest was closely allied to that of the source. However, this may not always be the case. Absent special circumstances (such as confidentiality obligations), the respondent is under no obligation to argue the case from the perspective of the target. There is thus the potential for a substantial lacuna. A number of solutions have been suggested to deal with this.

12.6.1  Full and frank disclosure? There is no general obligation of full and frank disclosure in seeking a Norwich Pharmacal order.49 Such an obligation is commonly encountered on without 47 [2014] EWHC 2626 (Ch) at para 47. 48 [2018] UKSC 28. 49 Of course, where the relief is sought in parallel with an ex parte interlocutory injunction (as, for example, in some Bankers Trust cases) the practical effect may be the same.

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notice applications, principally for injunctions. A  common reference point is the judgment of Warrington LJ in R  v Kensington Commissioners,50 in which he stated: ‘It is perfectly well settled that a person who makes an ex parte application to the Court – that is to say, in the absence of the person who will be affected by that which the Court is asked to do – is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. That is perfectly plain and requires no authority to justify it.’

In the Norwich Pharmacal context, the application is made on notice to the respondent but (at least in the paradigm case) cannot be made without notice to the party whose identity is sought, the target. As noted above, the respondent often has no personal interest in the outcome other than to ensure that it cannot be criticised in due course by the target. Moreover, the respondent may have no knowledge at all of the underlying factual circumstances, such that even its best efforts would not be sufficient to reveal potential defences. It is suggested that there is much to recommend an obligation of full and frank disclosure about the factors that may be raised by the target (as distinct from the respondent). The point was recently raised in Golden Eye where the judge, Mr Justice Arnold, noted that the issue required further consideration, though he had in that case addressed the difficulty by other means (below).51 One objection is that the duty may be without teeth. In the context of injunctions, the sanction is that the injunction can be set aside and payment ordered under the cross-undertaking in damages. Once the target’s identity has been revealed, however, that cannot be undone. Compensation will rarely be adequate and it will in any event be difficult to assess what consequences are truly caused by identification. Nonetheless, the responsibility would no doubt be taken seriously by most applicants and by solicitors and counsel. Although he did not need to decide on the ingenious argument for a duty of full and frank disclosure in Golden Eye, Arnold J  did nonetheless consider it appropriate to take into account the applicant’s failure to address in evidence one point on which they had been challenged, namely what had happened as a result of previous orders made.52 The judge said that even if there was no obligation to provide that information, dealing with matters such as numbers of letters sent and amounts paid in response, the failure to do so was nonetheless something that the court could take into account. In the event, however, it does not appear to have impacted upon his decision which, at least as regards the principal applicants, was to grant relief. The point, presumably, is that the 50 [1917] 1 KB 486 at 509. This was quoted, for example, in Bank Mellat v Nikpour [1985] FSR 87 where the point was said to reflect trite law. 51 [2012] EWHC 723. 52 [2012]  EWHC  723 at para  88. The judge also considered that a second point ought to have been addressed in the earlier Media CAT case: the fact that the ‘expert’ obtained a percentage of the revenue. This he regarded as a function of the responsibilities of an expert, rather than any more general duty of disclosure: see para 87.

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failure to volunteer the information sought meant that the judge could be less confident of how the resulting identities would be used and would thus look to other methods (such as his ultimate review of the draft letter of claim) to ensure that any relief granted would be proportionate. This has been termed a duty of ‘frank disclosure’ rather than full and frank disclosure53 though it is unlikely that it was intended to be anything other than a reflection of a typical discretionary exercise.

12.6.2  Other solutions It has been suggested that an appropriate course might be for the respondent to communicate with the target and then to put forward itself (ie still preserving anonymity) whatever submissions are suggested by the target.54 This may indeed be sensible in some cases. However, it imposes a significant burden upon the respondent. Since one of the pre-occupations is generally to avoid imposing unduly upon the innocent third party, it is perhaps unlikely that the courts will place too much emphasis upon this mechanism. There are two recent cases in which the courts have commented upon and sought to address the practical problem. The first, Media CAT  v Adams, is instructive in the account it provides of how events unfolded, revealing that some measure of control or supervision may be needed from the outset. The second, Golden Eye is a case in which the judge appointed a consumer organisation to make submissions on behalf of the unnamed individuals. Media CAT  v Adams was a case relating to peer-to-peer (P2P) file sharing software. Such software enables the sharing of electronic files, including films and music, over the internet. Copyright holders and others could track such activity to numerical IP addresses (broadly, the internet connection), but could not without more identify the names and addresses associated with those addresses. In this instance, Media CAT Limited had applied for Norwich Pharmacal orders against a number of Internet Service Providers (ISPs) requiring them to disclose the names and addresses of subscribers whose accounts with those ISPs had been linked to the downloading of particular pornographic films. The order was granted by the Chief Master and had not been appealed. The reported cases55 concerned subsequent developments. The orders resulted in ‘tens of thousands of names and addresses’ being produced.56 Lawyers appointed by Media CAT wrote letters before action seeking £495. Ultimately, 27 cases appear to have been initiated. The Patents County Court (His Honour Judge Birss QC) was first asked to enter judgment in default without a hearing in respect of eight cases, but refused. The judgment on this point identified a 53 See Westlaw Case Analysis note on the case; though note that the other cases cited in support of the proposition appear to relate to the general summary of the jurisdiction and, in particular, the risk that relevant interests are not represented, set out by Arnold J at [2012] EWHC 723 paras 48–55 and 78–83, rather than to this specific issue. 54 Totalise in the Court of Appeal [2001] EWCA Civ 1897 at paras 26 and 29 of the judgment of the Court (by Aldous LJ). 55 For present purposes, the main case was Media CAT v Adams [2011] EWPCC 6. 56 [2011] EWPCC 6 para 15.

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number of issues with the claims, including that Media CAT was neither the copyright owner nor a licensee (and had joined neither).57 It also raised unresolved legal issues as to whether someone identified by the ISP provider would in all circumstances be responsible for the use of the internet connection, which might for instance have been used by others on an unauthorised basis. The court then, of its own motion, organised a hearing in all 27 cases, following correspondence from another defendant.58 Days before that hearing, Media CAT filed notices of discontinuance in all 27 outstanding cases. The court declined to vacate the hearing and sought submissions on whether or not proceedings could be discontinued without permission. For a variety of reasons, including that the effect would be to avoid judicial scrutiny whilst similar claims were pursued in correspondence, the court ultimately concluded that permission was required and set aside the notices.59 The point that is of particular significance more generally is that the court urged consideration in future as to ‘how to manage the subsequent use of the identities disclosed’, whether by Group Litigation Order or otherwise.60 The judge suggested a test case at an early stage before the letter writing campaign could begin. He also mentioned the possibility of a supervising solicitor. The judge had at an earlier point in his judgment noted the potential difficulty arising from the fact that respondents to Norwich Pharmacal applications (here, the ISP providers) have no direct interest in the underlying cause of action and thus the cause of action may not be tested.61 By way of postscript, there was a subsequent hearing in which the judge made a limited wasted costs order against the lawyers and gave permission that they be joined for the purposes of deciding whether or not to order costs against them more generally.62 In the course of the proceedings referred to above, it had transpired that the lawyers stood to receive 65% of all revenues from (at least) the letter writing campaign (and, it was argued, from the proceedings).63 It appears that the Solicitors’ Regulation Authority commenced disciplinary proceedings and that some at least of the allegations were admitted.64 Similar issues arose again in the case of Golden Eye and others v Telefonica UK.65 This involved an application to obtain from O2 the names and addresses of its customers who were alleged to have committed copyright infringements through use of peer-to-peer file sharing. Similar applications had been made successfully by Golden Eye against BT and Sky in 2009 and 2010 respectively. In the present case, the terms of the order, which included a draft letter of claim, 57 The original judgment was Media CAT v A [2010] EWPCC 17. These points are summarised at paras 26–31 of the later judgment ([2011] EWPCC 6). 58 Media CAT v Billington [2010] EWPCC 18. 59 The proceedings were ultimately struck out since Media CAT did not apply to join the copyright owners by the deadline set. 60 [2011] EWPCC 6 paras 112–113. 61 [2011] EWPCC 6 para 14. 62 Media CAT v Adams (No. 2) [2011] EWPCC 10. Although the evidence relied upon for the original Norwich Pharmacal orders was never disclosed, the full order as made was disclosed. It transpired that the Chief Master had included provision for a progress report to be made to the ISP providers within six months. 63 [2012] EWPCC 6 para 41. 64 [As described in the later Golden Eye case 2012] EWHC 723 para 55. 65 [2012] EWHC 723.

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had been negotiated with O2 and it had then recorded that it would not oppose the application. The application was initially made on the papers. However, the Chief Master referred the matter to a judge. The judge, Mr Justice Arnold, was ‘concerned that the persons with a real interest in opposing the making of an order, or at least in seeking alterations to the terms of the proposed orders, were [the persons who would be identified if the order is granted].’66 He made directions that the supporting evidence should be served on Consumer Focus, a statutory body representing the interests of consumers which had been active in the copyright field.67 Consumer Focus was then allowed to intervene in the application. Ultimately, the judge decided that it was appropriate to grant the order sought.68 As noted above, the judge considered the submission that there should be a duty of full and frank disclosure but found this unnecessary to decide, principally because he had obtained the assistance of Consumer Focus.69 He also considered other procedural safeguards proposed by Consumer Focus, but rejected them as impractical. The possibilities included that of notifying the proposed targets anonymously before any order was made;70 appointing a supervising solicitor; and requiring a Group Litigation Order.71 The judge did however see much to commend the selection and determination of a test case, though there would be practical difficulties to address and it would not be possible to make such order at the present stage, i.e. before identification.72

12.6.3  Public interest As well as the target’s interests, some cases will involve issues of broader public interest. The Ashworth case is an obvious example.73 Where appropriate, the court might invite submissions from appropriate representative bodies.

66 Ibid para 7, explaining his reasons for directions made on a previous occasion. 67 In fact the trading name of the National Consumer Council of England, Wales and Scotland established under the Consumers, Estate Agents and Redress Act 2007. Replaced on appeal by the Open Rights Group. 68 See [2012]  EWHC  723 paras 145–146. The judge in fact dismissed the application by several of the applicants who, without assignment of their IP rights, had surrendered control of the application and 75% of any recoveries to the principal applicant, Golden Eye. He reached this conclusion notwithstanding having determined that arrangements were not champertous and that the applicants were genuinely seeking redress. The Court of Appeal upheld an appeal against this aspect of the decision, concluding that there was no sufficient distinction between the categories of applicant: [2012] EWCA 1740. 69 [2012] EWHC 723 paras 85–86. 70 This suggestion had its origins in the judgment of Aldous LJ for the Court of Appeal in Totalise v Motley Fool [2001] EWCA Civ 1897, where the suggestion was that the website operator caught in the middle might invite comments from the truly affected parties and pass those comments on to the court (parah 26). That was a case where the identity of one user was sought. 71 [2012] EWHC 723 at paras 140–142. 72 Ibid at para 143. 73 [2012] 1 WLR 2033.

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ents

12.7 CONSTRAINTS UPON USE OF INFORMATION AND DOCUMENTS Prior to the CPR, it had long been established that a party involved in conventional litigation was under an implied obligation not to use documents obtained during proceedings for other purposes, save with permission from the court.74 The implied undertaking had been applied also to information derived from documents disclosed.75 The leading cases justified the principle by reference to the compulsory nature of the imposition upon privacy and confidentiality. 76 In Grapha Holding AG v Quebecor Printing,77 the same principle was applied to information obtained from an inspection of a machine under court order.78 Mr Justice Jacob said: ‘I have no doubt that an implied undertaking also arises when, instead of actual documents, an equivalent process of compulsory disclosure is used by the Court’.79

A  successful application for Norwich Pharmacal relief would mean that the applicant obtained discovery as a final remedy. This might be thought to mean that the information or documents were disclosed free of any restriction. However, the better view is that a modified version of the implied undertaking applied, such that the information or documents could not be used ‘for purposes other than that for which production was ordered’.80 There are, however, cases which suggest less of a constraint.81 Nonetheless, in Bankers Trust itself, the Court of Appeal said that there must be an implied undertaking to use information only for the purposes of tracing.82 In Omar v Omar, Mr Justice Jacob (who was dealing there with an express undertaking) noted that there would be an implied undertaking in a Bankers Trust context ‘not to use the documents for an objective collateral or ulterior to

74 See Riddick v Thames Board Mills [1977] QB 881 and authorities cited therein. 75 Recognised in Sybron Corporation v Barclays Bank [1985] Ch  299. Cited with approval in Crest Homes v Marks [1987] 1 AC 829 (HL). 76 See Milano Assicurazioni v Walbrook [1994] 1 WLR 977 and cases cited therein. 77 [1996] FSR 711. 78 Also applied to obtaining information from a witness by deposition in Dendron v University of California [2005] 1 WLR 200. 79 There was a parallel concept applying to witness statements exchanged during proceedings, though the basis for this rule was quite distinct as there was no compulsion inherent in choosing which witnesses to call and which statements to serve. See Prudential Assurance v Fountain Page [1991] 1 WLR 756. 80 Rank Film v Video Information Centre [1982]  AC at 380, at 447 (Lord Fraser). This was a case concerning privilege against self-incrimination as regards a search order. 81 In Grapha, for example, the judge said that there was no implied obligation in a Norwich Pharmacal case. In Twentieth Century Fox Film v Tryrare [1991] FSR 58, Harman J said that the Riddick principle had ‘nothing to do with information obtained under Anton Piller orders’, referring to a note in the White Book which made the same point in the context of both Anton Piller and Norwich Pharmacal orders. Most cases are consistent with an implied undertaking to use the documents and information only for the purposes of bringing the proceedings that were envisaged when the Norwich Pharmacal application was made: see, for instance, Roberts v Jump Knitwear [1981] FSR 527 and Levi Strauss v Barclays Trading [1993] FSR 179. 82 Lord Denning MR at p 1282; Lord Justice Waller at 1283.

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the action.’83 There, permission was granted to make use of the documents in connection with personal (rather than proprietary) claims. The point was addressed by the House of Lords in Ashworth where concern had been raised that the court could not adequately protect the identity of the source, once disclosed, in a case where no proceedings were actually envisaged. Lord Woolf stated: ‘One of the arguments … was that if the disclosure was not linked with proceedings which would actually be brought, there would be no means of the court protecting a defendant against misuse of the material which was disclosed. I agree that this is a matter for concern. However, this concern will be met if an order for disclosure is not made unless a claimant has identified clearly the wrongdoing on which he relies in general terms and identifies the purposes for which the disclosure will be used when it is made. The use of the material will then be restricted expressly or implicitly to the disclosed purposes unless and until the court permits it to be used for another purpose.’84

This appears to put beyond doubt the existence of an implied undertaking defined by reference to the purpose for which disclosure was sought.85 To a significant extent, the matter is now governed by the CPR. CPR 31.22 has been said to create a complete code to the exclusion of the implied undertaking,86 at least as regards documents disclosed. It provides a general rule that such documents (and any information derived from them)87 can be used only ‘for the purpose of the proceedings in which [they are] disclosed.’ The definition of ‘use’ is wide and includes referring to a document or its characteristics (including its provenance).88 The main qualification is that documents are free from that restriction once read in court at a public hearing.89 In Shlaimoun v Mining Technologies International,90 a case relating to account documents obtained from a bank, Mr Justice Coulson reasoned that CPR 31.22 applies to documents provided under Norwich Pharmacal and Bankers Trust principles. He considered that the court should be taken to give implied permission 83 [1995] 1  WLR  1428, relying upon Crest Homes v Marks [1987] AC  829 and Sybron v Barclays [1985] 1 Ch 299. 84 [2002] 1 WLR 2033; [2002] UKHL 29 at para 60. 85 Compare the position in Canada where it appears that there is no implied undertaking: Alberta Treasury Branches v Leahy and Blindman Livestock v Snyder [2005] ABQB 689 (CanLII) (Alberta). Similarly, in Hong Kong, the Court of Appeal has recently considered the issue in Kensington v ICS Secretaries [2008] 4 HKLRD 589, and concluded that there is no implied undertaking, rejecting the comments in Ashworth. Rogers VP (with whom Le Pichon JA agreed) reasoned that the relief was final and that, by contrast to a interlocutory situation, no restriction should be implied after final relief, though an explicit constraint might be imposed (para 29). The point had not however been argued (para 32). Barma J agreed in the conclusion (on an alternative ground) but reserved judgment on the issue until an occasion on which full argument had been heard. 86 SmithKline Beecham v Generics [2004] 1 WLR 1479, at 1490 (Aldous LJ). 87 Rawlinson and Hunter Trustees SA v Serious Fraud Office [2015] EWHC 266 (Comm) at para 6 and IG Index Ltd v Cloete [2014] EWCA Civ 1128 at para 24(ii). 88 IG Index Ltd v Cloete at para 40 and 46. See also Robert Tchenguiz and Another v Grant Thornton UK LLP and Others [2017] EWHC 310 (Comm) at para 21. 89 However, Chodiev v Stein [2016] EWHC 1210 (Comm) at para 41 suggests that in some circumstances there is likely to be a low threshold to obtain an order prohibiting the use of bank details (and perhaps similar or related information) on the grounds that there is no legitimate interest in private information of this nature being used for a collateral purpose. 90 [2011] EWHC 3278. See also the reference in Media CAT v Adams [2011] EWPCC 6 at para 108.

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to make use of documents for the ‘purpose which the court intended in making the order in the first place’. Here the use of the documents for the purposes of foreign proceedings did not need further permission. He added:91 ‘This avoids what seems to me to be the unnecessary (and potentially complicating) exercise of requiring a court, before it makes a Bankers Trust/ Norwich Pharmacal order, to go through a long list of hypothetical purposes, which may never eventuate, to see which ones should be allowed and which excluded. In the ordinary case, that would be a waste of both time and costs.’

Reliance upon implied permission is perhaps somewhat unsatisfactory and it is suggested that in all but the simplest cases, it may be good practice for the order to identify the purpose(s) for which the information can be used.92 Reliance upon an interpretation of the court’s intention is likely in some cases to lead to uncertainty.93 That may be particularly so where the relief is granted without the expectation of further proceedings. An example would be relief to enable the applicant to prevent future leaks. Unless the point is specifically addressed, it may be unclear whether the information can be used for other related purposes, such as disciplining the culprit (rather than, for example, simply designing a better process for the future). Where the relief involves the provision of information, CPR 31.22 does not apply. Nonetheless, the implied undertaking is likely to survive in this context. Although CPR 31.22 provides a complete code for documents, there is nothing to suggest that the broader implied undertaking has been displaced. As a matter of general principle, the court will not modify or release the undertaking save in special circumstances.94 However, in deciding whether or not to allow documents disclosed in one set of proceedings to be used in another, the Court of Appeal has drawn a parallel to CPR 31.17. If the documents in question could be obtained by way of third party disclosure during further proceedings, that will be a material consideration in favour of granting permission to extend the scope of permitted use under CPR  31.22.95 In a Norwich Pharmacal context, one might anticipate that a similar principle would apply. An applicant who obtains relief in one context may obtain permission to use the resulting information for another purpose if that would have been sufficient to obtain the relief originally, whether alone or in combination with other purposes. In Rawlinson and Hunter Trustees SA v Serious Fraud Office,96 Eder J suggested that where a party seeks the court’s permission under CPR 31.22(1)(b) to use documents disclosed by a third party under CPR 31.17, for a collateral purpose, the court may take into account the fact that granting an order may constitute a

91 [2011] EWHC 3278 (QB) at para 39. 92 Grosvenor Chemicals Ltd v UPL Europe Ltd [2017] EWHC 1893 (Ch) is an example of the issues that can arise where the purposes for which the information can be used are not expressly set out. 93 More recent authorities have emphasised the need for express wording to be included: Santander v National Westminster Bank [2014]  EWHC  2626 (Ch) at para  48; IG  Index Ltd v Cloete [2014] EWCA Civ 1128. 94 Crest Homes v Marks [1974] AC 133 at 860 (Lord Oliver, dealing with documents provided in the course of conventional disclosure) and Tchenguiz v SFO [2014] EWCA Civ 1409 at para 66. 95 SmithKline Beechams v Generics [2004] 1 WLR 1479. 96 [2015] EWHC 266 (Comm) at para 21.

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further invasion of the third party’s privacy and/or confidentiality. This reasoning is also likely to be applicable to documents obtained from a third party under the Norwich Pharmacal jurisdiction. Further, the case of Tchenguiz v Director of the Serious Fraud Office97 suggests that the courts are likely to grant permission to use documents disclosed in one set of proceedings for the limited purpose of obtaining legal advice in relation to other contemplated proceedings as preventing a party from obtaining legal advice is a very drastic restriction on their rights and may run counter to the rule of law. Any documents disclosed will generally be available for use at the ultimate trial. Although this might be said to be distinct from the exercise of tracing, it has been held that documents disclosed for that purpose can be used in evidence at trial, without need for further permission.98 CPR  31.22(2) sets out the courts’ jurisdiction to make an order restricting or prohibiting the use of a document which has been disclosed, even where the document falls outside the collateral undertaking by virtue of having been put before the court. In Chodiev v Stein,99 Leggatt J  held that the defendant had standing to apply to the court to restrict the use of documents, disclosed by a third party (ie not the defendant) pursuant to the Cypriot equivalent of a Norwich Pharmacal order, which had been put before the court and therefore were not subject to the collateral undertaking. Leggatt J based his decision on the wide wording of CPR 31.22(3) and the courts’ inherent discretion to make an order restricting or prohibiting the use of the document where it was necessary in the interests of justice.

12.8 FINALITY Where disclosure is sought on Norwich Pharmacal grounds in support of existing proceedings, the application is typically made as part of those proceedings. This is more typical in Bankers Trust cases. Even though the application is made in existing proceedings, it is still an application for final relief against the respondent. Once relief has been provided, the proper course is for the respondent to be released as a party.100

97 [2014]  EWHC  1315 (Comm) at paras 19 to 22. See also Robert Tchenguiz and Another v Grant Thornton UK LLP and Others [2017] EWHC 310 (Comm) at paras 29 to 31. 98 Omar v Omar [1995] 1 WLR 1428. 99 [2016] EWHC 1210 (Comm) at paras 15 and 16. 100 Australia and New Zealand Banking Group v National Westminster Bank Plc, unreported 6 February 2002 (Deputy Judge J Jarvis QC).

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This chapter aims to summarise developments as they relate to specific modern applications of the general principles described in previous chapters. It is focused upon those areas where there may be particular considerations which are not of general application. In most scenarios, including many that will arise in a commercial context, there is little that can be added beyond reference to the general treatment of the concepts in previous chapters.

13.1  INTERNET AND SOCIAL MEDIA The operators of websites are often targeted for relief as they provide a platform by which others can commit wrongs, often shielded by pseudonyms. The two most obvious fields are defamation and intellectual property infringement and there are numerous examples of successful applications in each. Applications have succeeded against internet service providers,1 email account providers,2 operators of internet search engines,3 operators of internet discussion forums or bulletin boards,4 and online marketplaces,5 online newspapers permitting comments from users,6 as well as Facebook7 and Wikipedia.8 1 2 3

Golden Eye v Telefonica UK [2012] EWHC 723. See also Polydor v Brown [2005] EWHC 3191 (Ch). Lockton v Persons Unknown, Google [2009] EWHC 3423. Grant v Google [2005] EWHC 3444 (Ch) regarding an advert which redirected users to a website from which a document infringing copyright could be accessed. 4 Totalise v Motley Fool [2001] EWCA Civ 1897, Keith-Smith v Williams [2006] EWHC 860 (QB); Patel v UNITE  [2012]  EWHC  92, Sheffield Wednesday v Hargreaves [2007]  EWHC  2375 (QB), Smith v ADVFN  [2010]  EWHC  3255. In X  v Twitter Inc. [2017]  NSWSC  1300, the Australian Supreme Court (New South Wales) made a Norwich Pharmacal order against Twitter. In Houseman v Ratemd’s Inc. [2017] SKQB 321, the Canadian courts made a Norwich Pharmacal order against a website operator. 5 RFU v Viagogo [2011] EWCA 1585. 6 Clift v Clarke [2011] EWHC 1164, where the application was made against an individual who was the operator of the Mail Online website. 7 See Applause Store Productions v Raphael [2008] EWHC 1781 (QB), para 10. In Sabados v Facebook Ireland, QBD 2018 (unreported), jurisdiction was established under the Brussels Recast Regulation, on the basis that an underlying claim for misuse of private information and/or breach of confidence involved alleged torts that were committed in the jurisdiction, or damage occurred in the jurisdiction. In addition, the Canadian courts made a Norwich Pharmacal order against Facebook in Olsen v Facebook Inc. [2016] NSSC 155. 8 G v Wikimedia Foundation Inc [2009] EWHC 3148.

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In this area particularly, there is the possibility of obtaining the names of hundreds or thousands of potential wrongdoers, each of which may be liable for a small amount and unable or unwilling to engage in litigation. The Media CAT and Smith v ADVFN cases have been described elsewhere.9 Both underline the importance of case management, as applied in the recent Golden Eye decision. Privacy considerations are often significant given the expectation of anonymity. These will generally give way to the interests of the applicant, at least where there is a good claim. This may be an area where something more than the base line arguable case might be required. In the field of defamation, a number of cases have declined relief where online posts have been ‘barely defamatory’, recognising that this would be disproportionate and unjustifiably intrusive.10 In the context of copyright infringement, the Digital Economy Act 2010 was recently enacted, following a fairly extensive consultation.11 This is to be supplemented by a code.12 The Act introduces a series of new provisions (as amendments to the Communications Act 2003) under which a copyright owner can request certain information from an internet service provider (ISP), as defined, about apparent infringement. The basic regime preserves confidentiality as to the name of the subscriber. In circumstances governed by the code, the ISP must notify the subscriber of an infringement report and must also provide the ISP with a list setting out, subject to a threshold, which infringement reports relate to which subscriber. There is a statutory requirement that the list should not enable any subscriber to be identified. However, the new provisions do not exclude Norwich Pharmacal relief. It is anticipated that copyright owners will use the new provisions to target such applications against those who are significant offenders. Issues concerning organisations based outside the jurisdiction have posed particular issues in this area. These issues are addressed in Chapter 14.

13.2  JOURNALISTIC SOURCES The possibility of obtaining an order against the media requiring the identification of a source has occupied the courts on a number of occasions. The position is now subject to section 10 of the Contempt of Court Act 1981, considered below.13

9 Chs 12.6.2 and 7.7 respectively. 10 Sheffield Wednesday v.Hargreaves [2007]  EWHC  2375 (QB), noting also that the website had no policy of confidentiality. See also Clift v Clarke [2011] EWHC 1164. 11 The new provisions (Communications Act 2003, ss 124A–124N) were challenged by two ISPs who argued that they were incompatible with various EU Directives. That challenge was dismissed both by the judge and (save in one minor respect) by the Court of Appeal. See R (on the application of British Telecommunications and another) v Secretary of State for Culture, Olympics, Media and Sport [2012] EWCA 232. 12 The draft order containing the ‘Initial Obligations Code’ is in near final form. Ofcom anticipates that it will come into force in January 2013: see ‘Online Infringement of Copyright and the Digital Economy Act 2010, Interim statement and notice of a proposal to make an order’, 26 July 2012. 13 The below is intended as an overview of the protection of journalistic sources. Further information can be found in, for example, H Fenwick & G Phillipson Media Freedom under the Human Rights Act (2006), Ch 7 and D Eady & ATH Smith Arlidge, Eady & Smith on Contempt (5th edition, 2017).

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13.2.1  Common law At common law a ‘newspaper rule’ provided that newspapers would not be compelled to identify their sources prior to the trial stage, at least in defamation actions.14 However, it was apparent that the press did not benefit from any privilege and could be required to disclose a source where relevant.15 In AttorneyGeneral v Mulholland & Attorney-General v Foster Lord Denning MR said, ‘If the judge determines that the journalist must answer, then no privilege will avail him to refuse’.16 The leading case at common law, decided a few years after Norwich Pharmacal, was British Steel.17 It was argued that journalists should have immunity in relation to disclosure of sources by extension, in particular, of the categories of public interest immunity.18 The House of Lords rejected any such absolute immunity. Nonetheless, there did exist a discretion not to order disclosure if, on the facts, the public interest in maintaining anonymity outweighed the interests in favour of disclosure. Lord Wilberforce stated ‘Although … the media, and journalists, have no immunity, it remains true that there may be an element of public interest in protecting the revelation of the source’.19 On the facts, however, the majority of both the Court of Appeal and the House of Lords (with one dissent) ordered disclosure.

13.2.2  The Contempt of Court Act 1981 Following the decision in British Steel, the Contempt of Court Act 1981 was enacted. Section 10 provides: ‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’

As is apparent, section 10 confers no power to order disclosure but acts as a brake upon the exercise of powers that might otherwise exist, whether under Norwich Pharmacal principles or as a feature of conventional disclosure.20 It applies to any form of proceedings, even a proprietary claim for return of an original 14 Recognised in 1920 as well-established: Lyle-Samuel v Odhams Ltd [1920] 1 KB 135, Bankes LJ at 143. 15 Attorney-General v Clough [1963] 1 QB 773 and Attorney-General v Mulholland, Attorney-General v Foster [1963] 2 QB 477. For example, in the latter cases two journalists refused before a tribunal to name or describe the sources of information in articles written by them which the chairman of the tribunal considered relevant to the inquiry. The journalists were sentenced to imprisonment for contempt. Their sentences were upheld by the Court of Appeal on the basis that the journalists could not claim any privilege against disclosure of the information sought. 16 [1963] 2 QB 477 at 490. 17 [1981] AC 1096 and see Ch 7.1 above. 18 See Ch 11.4 for public interest immunity. 19 [1981] AC 1096 at 1174. 20 See Lord Diplock in Secretary of State v Guardian Newspapers [1985] 1 AC 339 at 347.

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document (with markings which might reveal the source).21 It also applies to any questions put to a witness and any information that would lead to a ‘reasonable chance’ that the identity of the source would be revealed.22 The legislation applies to any ‘publication’. This has been interpreted broadly. As Lord Diplock has stated (emphasis added):23 ‘The choice of what information shall be communicated to members of the public lies with the publisher alone; it is not confined to what, in an action for defamation would be regarded as matters of public interest, or even, going down the scale, information published in order to pander to idle curiosity and thus promote sales of the publication; nor is the section confined to publications by the ‘media’, although no doubt the media will in practice be the chief beneficiaries of it. Provided that it is addressed to the public at large or to any section of it every publication of information falls within the section and is entitled to the protection granted by it unless the publication falls within one of the express exceptions introduced by the word “unless”’.

Thus the provision would seem to apply to someone who posts a message on an internet forum, just as much as to newspapers and major media organisations. It has been held that a website operator is not ‘responsible’ for publications made on a website, such that section 10 does not apply when an application is made against the operator to identify the author of a posting.24 This is a fairly restrictive interpretation of the provision. If the publication itself is protected, it would seem strange that section 10 (or, at least, its common law predecessor) is entirely irrelevant.25 In relation to the protection of ‘sources’, in Hourani v Thomson,26 the High Court held that the protection embraces those who provide information that is communicated and received ‘with a view to publication’.27 In addition, the term ‘source’ is to be given its ordinary meaning and interpreted broadly.28 The case concerned a claim for libel and harassment. A  client of the fifth defendant engaged and paid the fifth defendant to operate a campaign in which the claimant was implicated in a murder. The claimant made an application for the disclosure of the identity of the fifth defendant’s client. During the case it was

21 Guardian Newspapers, above. 22 [1985] 1 AC 339 at 347 and 349G per Lord Diplock. In addition, see Duffy v Sunday Newspapers [2017] NIQB 71, para 60. The High Court of Northern Ireland held that the negative right is not only the right not to disclose information to the parties, but also the right not to disclose the information to anyone. 23 [1985] 1 AC 339 at 348. 24 Totalise v Motley Fool Owen J [2001] EMLR 29. The point was not addressed in the Court of Appeal. 25 Compare the decision in John Reid Enterprises v Pell [1999] EMLR 675. In that case, the defendant claimed to be a freelance investigative journalist and had supplied information to journalists of the Daily Mirror. He had worked with those journalists to complete the story. The applicants considered that the information came from an insider and thus sought disclosure of the defendant’s source, as part of a search order. Carnwarth J decided that it was arguable that the defendant was entitled to rely on section 10. He nonetheless concluded that the disclosure was required. A broad interpretation of section 10 was also considered arguable in Michael O’Mara Books Ltd v Express Newspapers Plc, [1999] FSR 49, in circumstances where the respondent was the deputy editor of the newspaper, though not involved in editing the particular story. 26 [2017] EWHC 173 (QB), paras 28 to 34. 27 Ibid para 26. 28 Ibid paras 30 to 34.

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argued that even if the client was a source, it was not a source that fell within the principle relating to the protection of sources. This was on the basis that the client was not engaged ‘in a journalistic exercise to report on matters of public interest in good faith; their purpose was to disable their targets’.29 It was held that it would be unsatisfactory for the court to interpret the meaning of the word ‘source’ in section 10 of the Contempt of Court Act 1981 to distinguish between different categories or classes of persons who, ‘as a matter of fact, provide information to others with a view to that information being published to the public or a section of the public’.30 It was held that the court should take subjective factors (such as motive, purpose and whether a source was acting in good faith) into consideration when assessing whether disclosure of the identity of the source is necessary for one or more of the purposes specified in section 10 of the Contempt of Court Act 1981 (ie in the interests of justice or national security or for the prevention of disorder or crime).31

13.2.3  The permitted exceptions All of the exceptions are introduced by the term ‘necessary’. In one of the first cases on section 10, Secretary of State for Defence v Guardian Newspapers,32 Lord Diplock emphasised that this sets a high threshold (emphasis added): ‘The onus of proving that an order of the court has or may have the consequence of disclosing the source of information falls within any of the exceptions lies upon the party by whom the order is sought. The words “unless it be established to the satisfaction of the court” make it explicit and so serve to emphasise what otherwise might have been left to be inferred from the application of the general rule of statutory construction: the onus of establishing that he falls within an exception lies upon the party who is seeking to rely upon it. Again, the section uses the words “necessary” by itself, instead of using the common statutory phrase “necessary or expedient”, to describe what must be established to the satisfaction of the court – which latter phrase gives to the judge a margin of discretion; expediency, however great, is not enough; section 10 requires actual necessity to be established; and whether it has or not is a question of fact that the judge has to find in favour of necessity as a condition precedent to his having any jurisdiction to order disclosure of sources of information.’33

The case concerned a leaked document containing information about the storing of nuclear weapons at an army base and allegations that Parliament had been misled on the issue. The House of Lords ordered the newspaper which had received the document to disclose its source. Their Lordships considered that the government had discharged the onus of showing that immediate delivery up of the document was necessary in the interests of national security. The risk of future leaks was the principal factor relied upon to establish the necessity for disclosure. 29 30 31 32 33

Ibid para 28. Ibid para 33. Ibid paras 33 and 34. [1985] 1 AC 339. [1985] 1 AC 339 at 350.

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To like effect, in the House of Lords in Re an Inquiry under the Company Securities (Insider Dealing) Act 198534 Lord Griffiths (who gave the leading speech) said that the meaning of the word necessity falls somewhere between ‘indispensable’ and ‘useful’ or ‘expedient’; the nearest paraphrase was ‘really needed’, though he cautioned against any elaborate discussion as to the meaning of a term which was in common usage in everyday speech.35 This was a case concerning necessity ‘for the prevention of crime’. More recently in Hourani v Thomson36, the High Court held that ‘necessary’ means ‘really needed’. Another of the exceptions contained within section 10 is disclosure where ‘necessary in the interests of justice’. This was addressed in X  Ltd v Morgan Grampian (Publishers) Ltd,37 which concerned threatened publication of financial details of a company by a journalist, Mr Goodwin. The applicant sought disclosure of the journalist’s notes to identify the informant. The House of Lords concluded that the disclosure was necessary in the interests of justice as there was a threat of severe damage to the claimant’s business if disclosure was not ordered. 38 In so doing, the House of Lords adopted a broader interpretation of ‘interests of justice’ than had been suggested previously.39 Lord Bridge (who gave the leading speech) said: ‘It is, in my opinion, “in the interests of justice,” in the sense in which this phrase is used in section 10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interests of justice that he should be able to identify him in order to terminate his contract of employment, notwithstanding that no legal proceedings may be necessary to achieve that end.’40

This of course corresponds to the range of legitimate objectives for which Norwich Pharmacal relief can be sought. As to the balancing exercise, Lord Bridge said (emphasis added): ‘It would be foolish to attempt to give comprehensive guidance as to how the balancing exercise should be carried out. But it may not be out of place to indicate the kind of factors which will require consideration. In estimating the importance to be given to the case in favour of disclosure there will be a wide spectrum within which the particular case must be located. If the party seeking 34 35 36 37 38

[1988] AC 660. [1988] 1 AC 660 at 704. [2017] EWHC 173 (QB) at 945. [1991] 1 AC 1. Also see Various Claimants v MGN [2018] EWHC 708 (Ch). The defendant applied to limit early disclosure provisions which were put in place to deal with claims concerning unlawful phone hacking. The application was made on the basis of journalistic source protection under s 10 of the Contempt of Court Act 1981. It was argued that as a by-product of disclosing the data, one particular associate would be revealed as a confidential source. However, the application was refused on the grounds that the information to be disclosed was of great significance in the litigation, and the early disclosure regime was very important for the just and proportionate disposal of the cases. This decision is currently being appealed. 39 Lord Diplock in Guardian Newspapers had suggested that ‘justice’ was to be used in the technical sense of ‘administration of justice’. 40 [1991] 1 AC 1 at 43. Subsequently endorsed by Lord Woolf in Ashworth [2002] UKHL 29 at para 40.

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disclosure shows, for example, that his very livelihood depends upon it, this will put the case near one end of the spectrum. If he shows no more than that what he seeks to protect is a minor interest in property, this will put the case at or near the other end. On the other side the importance of protecting a source from disclosure in pursuance of the policy underlying the statute will also vary within a wide spectrum. One important factor will be the nature of the information obtained from the source. The greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained legitimately this will enhance the importance of protecting the source. Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in publication of the information, as in the classic case where the source has acted for the purpose of exposing iniquity. I draw attention to these considerations by way of illustration only and I emphasise once again that they are in no way intended to be read as a code.’41

The journalist subsequently applied to the European Court of Human Rights (ECtHR) in Goodwin v United Kingdom42 on the basis that the outcome was inconsistent with Article  10 (Freedom of Expression) of the ECHR. This describes the right to freedom of expression and then records the circumstances in which that freedom might be constrained by law (emphasis added): ‘10(2). The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

The ECtHR found (by 11 votes to 7) that there had been a violation. The ECtHR accepted that the order to disclose the source pursued a legitimate aim in protecting the company’s rights, but held that disclosure was not necessary. This was because the ECtHR considered that a vital component of limiting damage to the company had already been achieved by the injunction restraining publication; the additional benefit of identifying the source and allowing legal action against them was insufficient to outweigh the public interest in retaining confidentiality: ‘in sum, there was not, in the court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim.’43 Camelot v Centaur Communications44 concerned a person employed by the company running the national lottery who had sent unaudited draft accounts to 41 [1991] 1 AC 1 at 44. 42 [1996] ECHR 16. 43 Ibid at para 46. 44 [1999] QB 124.

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a journalist. Camelot sought the return of the documents so that it could identify the employee and take appropriate action. The Court of Appeal reasoned that the principles applied under section 10, as developed in X v Morgan Grampian, were substantially the same as those required under Article 10, as explained in Goodwin v United Kingdom. On the facts, the Court held that the interests of the company in ensuring the loyalty of its employees in this instance outweighed the public interest attached to the protection of press sources. As stated by Schiemann LJ:45 ‘Clearly there is unease and suspicion amongst the employees of the company which inhibits good working relationships. Clearly there is a risk that an employee who has proved untrustworthy in one regard may be untrustworthy in a different respect and reveal the name of, say, a public figure who has won a huge lottery prize. ‘This is not a case of disclosing iniquity. It is not a whistle blowing case. It did not significantly further the public interest to secure the publication of this item a week earlier than planned. The source knew that publication was planned a week later. I do not regard as a significant factor the point urged by Mr. Nicol that early publication prevented the directors from, in the cant phrase, “putting a spin on” the presentation of the figures which would make them more palatable to ministers and the public and that the inhibition of this is in the public interest. Whether the public heard the relevant news a week earlier or later is of no significant weight.’

By contrast, the Court of Appeal refused disclosure in John v Express Newspapers.46 The Court of Appeal (in a judgment given by Lord Woolf MR) held that the ‘minimum requirement’47 was that other avenues should be explored by the person or persons seeking disclosure. Since then, the ECHR has since been incorporated into English law by the Human Rights Act 1998, coming into effect in 2000. Accordingly, the courts must interpret section 10 in accordance with Article 10.48 This is part of a broader subject addressed in Chapter 10.1.1 above. In Interbrew SA v Financial Times,49 a journalist received a copy of a leaked document concerning a possible takeover bid. After making enquiries of the applicant (in which the possibility of a bid was denied), the journalist published details from the document. It transpired that the document had been falsified, at least in part. The applicant subsequently sought disclosure of the document since it might enable them to identify the source. This was ordered by the judge and upheld by the Court of Appeal. Sedley LJ (with whom the other members of the court agreed) said that ‘necessary’ in section 10 must be interpreted in accordance with Article 10 of the European Convention, such that any interference with the right to freedom of expression must be ‘necessary in a democratic society’. This

45 46 47 48

Ibid at 137G–H. [2000] 1 WLR 1931. Ibid at para 27. Human Rights Act 1998, ss 3(1), 6(1). In Ashworth, in the Court of Appeal [2001] 1 WLR 515, Lord Phillips MR, accepted counsel’s contention that ‘freedom of the press has in the past carried greater weight in Strasbourg than it has in the courts of this country’ (para 97). 49 [2002] EWCA Civ 274.

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incorporated a proportionality test.50 He said that any disclosure ‘must meet a pressing social need, must be the only practical way of doing so, must be accompanied by safeguards against abuse and must not be such as to destroy the essence of the primary right’.51 In applying this test to the facts Sedley LJ said ‘what … matters critically, at least in the present situation, is the source’s evident purpose’. He concluded that the purpose had been a maleficent one, calculated to do harm whether for profit or for spite. He concluded that any public interest in protecting such a source was outweighed.52 This case was later referred to the ECtHR: see below. The next significant case was Ashworth,53 discussed previously. This case concerned the leaking to a newspaper of medical information relating to the ‘Moors murderer’ Ian Brady. The House of Lords considered that the disclosure was necessary in the interests of justice and was proportionate. A  significant factor appears to have been the fact that the disclosure involved confidential medical records. However, when the newspaper revealed the source, this was a freelance journalist. This led to a second application, leading ultimately to a second trial, Mersey Care. In Ashworth, it had been assumed that the motivation for the initial leak was financial. However, it transpired that the original source had not been paid and had redacted parts of the medical records. There had also been no further leaks since 1999. In addition, there had been a large turnover of staff. In light of all of this, the trial judge held that disclosure would not, in the changed circumstances, be necessary. The Court of Appeal upheld this conclusion.54 The applicable principles in relation to the disclosure of journalists’ sources have recently been restated by the ECtHR in Financial Times Ltd v United Kingdom,55 arising out of the Interbrew case referred to above. The court emphasised the broad impact of a disclosure order: ‘In the case of disclosure orders, the Court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves.’

The court then went on to address the relevance of the source’s conduct (emphasis added): ‘While it may be true that the public perception of the principle of nondisclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful

50 See Sunday Times v United Kingdom (1979) 2 EHRR 245 at 278. See also the analysis in Goodwin v United Kingdom referred to above; and the analysis of the Supreme Court in PJS v News Group Newspapers Ltd [2016] 2 WLR 1265. 51 [2002] EWCA Civ 274 at para 32. 52 [2002] EWCA Civ 274 at para 55. 53 [2002] 1 WLR 2033. 54 [2006] EWHC 107 and, on appeal, [2007] EWCA Civ 101. 55 [2010] EMLR 21.

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As can be seen from the above, the ECtHR recognised that the source’s harmful intent might be relevant in an appropriate case, provided that it was clear. In the present case, it concluded that the proceedings had not allowed this aspect to be ascertained with sufficient certainty. The ECtHR was also influenced by the fact that Interbrew had not sought an injunction to prevent publication. Accordingly, it concluded that the disclosure order involved a violation of Article 10.57 When considering various principles such as the application of Article 10, in Hourani v Thomson, at the start of trial the court declined to give an interim order for the disclosure of the identities of the ‘sources’ of the information. This was on the basis that disclosure of the identities was not necessary in order to have a fair trial of the issues between the parties. However, following judgment in favour of the claimant, the court allowed the claimant to amend his claim to seek an order for the disclosure of the identities of the clients. This was in order to enable the claimant to consider seeking remedies against the clients. Therefore, when considering Article 10, the balance appeared to shift once the primary issues between the parties had been determined.58

13.3 DEFAMATION One area where Norwich Pharmacal principles have been invoked concerns potential proceedings for defamation. Many of the cases concern internet publication, often via bulletin boards or other discussion groups where subscribers have the ability to post comments. These have been addressed above. These cases typically involve posts that have been accessed by the applicant, but it would in principle be possible for an application to be made on the basis an arguable case of defamation by unknown messages (for instance a bulletin board to which the applicant is not permitted access). The application would need to establish that there was a basis to infer that such postings have been made. There is no reason in principle why the relief should not extend to copies of the posts themselves. Defamation is one area where there are heightened pleading requirements.59 However, P v T demonstrates that, in an appropriate, case relief can be obtained to reveal an identity based upon an arguable case.

56 Ibid at para 63. 57 See generally R. Costigan, ‘Protection of journalists’ sources’ [2007] Public Law 464, published before the ECtHR decision in relation to the Interbrew case and suggesting differences between the English and European principles applied in this area. 58 [2017] EWHC 432 (QB), paras 10 and 241. 59 CPR, Pt 53. See also Pre-Action Protocol for Defamation.

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Where an article or broadcast is based upon information obtained from a third party source, Norwich Pharmacal will in principle be available to identify unidentified sources. The cases have tended to involve breach of confidence, but there is no reason in principle why defamation or malicious falsehood should not provide a foundation for relief.60 This will be subject to section 10 of the Contempt of Court Act 1981, considered above.

13.4  COMMERCIAL SECRETS Where commercially confidential information is leaked to a competitor, there will be a basis for relief. There is at least one reported decision,61 though most of the cases involving leaks of confidential information have related to the press. The difficulty will be in establishing an arguable case that there has been a leak. Where this can be established, for instance by inference from conduct, the primary target is likely to be the recipient of the information, not just the person responsible for the leak. Accordingly, in most cases, the pre-action disclosure is more likely to be the avenue by which further information will be sought. Nonetheless, there may be cases which are appropriate for Norwich Pharmacal relief. The recent Brady v PKF decision (a case concerning unauthorised access to telephone records) suggests that the relief might extend to disclosure of the whole of any document incorporating any reference to the confidential information that had been obtained, with redaction of any portions unrelated to the confidential information obtained which are themselves truly commercially sensitive to the (wrongdoing) respondent.62

13.5 FRAUD The English courts have long had a reputation for being at the forefront of the development of remedies to assist the victims of fraud, particularly with an international dynamic where the fraud is perpetrated across borders and is thereby difficult to unravel. One of the principal reasons for the English courts’ pre-eminence in this regard is London’s position as one of the world’s leading financial (and legal) centres. With ever-increasing numbers of financial and corporate structures devised in the London markets (and occasionally being used for fraudulent purposes) it is a simple case of supply and demand: the more fraud touches this jurisdiction (or passes through) the greater the need for a response from the English courts. It is an important feature of the development of the Bankers Trust and Norwich Pharmacal principles that, in the fraud context especially, they have found traction in most of the offshore jurisdictions which are commonly exploited in fraudulent schemes. 60 Interbrew v Financial Times [2002] EWCA Civ 274 addressed malicious falsehood but concluded that it was not sufficiently established. 61 Cembrit v Apex Roofing [2007] EWHC 111 (Ch). 62 [2007] EWHC 111 (Ch); see, further, the discussion in Ch 10.2.2.

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Fraud provides the context for some of the most invasive orders made for disclosure, typically under Bankers Trust and ancillary to freezing and/or search orders. This subject has been addressed in Chapter 5.63 It is plain that relief on such principles can play an important part in tracing misappropriated funds and identifying wrongdoers and their associates. Many cases involving fraud will also involve freezing injunctions and, in some cases, search orders. The case is therefore likely to be established to a higher standard. Moreover, there is a heightened pleading standard for cases of fraud.64 Nonetheless, there is no reason in principle why relief should not be granted under conventional Norwich Pharmacal principles on the basis of an arguable case of fraud, if the purpose is to establish an identity or one missing piece of the jigsaw. Such orders would not involve the same level of invasion of privacy as is inherent in a typical Bankers Trust order. They would be targeted, as with any other cause of action, to identifying whether all of the required ingredients exist. Finally, it is worth noting, in the context of fraud, the recent attempts to characterise or frame Norwich Pharmacal as a form of ‘narrow’ and ‘exceptional’ form of relief. It is doubtful whether, in the case of a complex, cross border fraud such constraints apply. Norwich Pharmacal is ultimately flexible, and is often deployed to fill an obvious gap in the pursuit of a fraudster, see Credit Suisse v Intesa (below).

13.6  POST-JUDGMENT ENFORCEMENT The leading case on this topic is Mercantile Group (Europe) v Aiyela, addressed in Chapter 6.1 above.65 Issues as to whether and to what extent any wrongdoing (beyond judgment) is required are addressed in Chapter 7.3 A recent example of the application of the principle is Kensington International v Congo.66 Kensington had purchased debts owed by the Republic of Congo and, back in 2002 to 2003, had obtained judgments which it had since been seeking to enforce. Over subsequent years there had been what was termed by Mr Justice Morison a ‘ritual dance’ involving concealment and deceit to evade enforcement.

63 See also the recent example described in Ch 10.2.4 where the court appears to have granted an order requiring that a specific email account be monitored, subject to a gagging order. 64 CPR  16.4(1)(e) and CPR, Pt  16, PD  8.2 required a claimant to set out any allegation of fraud in his particulars of claim where he wishes to rely on them in support of his claim. In such cases, the claimant must state the facts so as to show distinctly that fraud is charged (see Garden Neptune Shipping v Occidental Worldwide Investment Corp and Concord Petroleum Corp [1989] 1 Lloyd’s Rep 305). Under para 704(c) of the Bar Code of Conduct, barristers may not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing any allegation of fraud without reasonably credible material which as it stands establishes a prima facie case of fraud (see also Medcalf v Weatherill [2003] 1 AC 120). Similarly, IB(5.7)(b) of the SRA Code of Conduct provides that solicitors may not draft any documents relating to any proceedings containing any allegation of fraud unless the solicitor has material which he reasonably believes shows, on the face of it, a case of fraud. IB(5.8)(b) also prevents solicitors from suggesting that any person is guilty of a fraud unless such allegations appear to the solicitor to be supported by reasonable grounds. 65 [1994] QB 366. 66 Decision of Morison J, [2006] EWHC 1848. A number of other disclosure orders were granted in the course of the Kensington International v Congo case. Most of the original disclosure decisions are unreported.

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Search orders with ancillary disclosure orders had been made against one individual who had been involved in the various arrangements. In the present case (one of many) an application was made to cross examine that individual given his inadequate attempts to comply with the disclosure provisions. The order was granted, including on Norwich Pharmacal grounds. The judge concluded that the individual had been ‘intimately involved in the trading of Congo’s oil and the plan to defeat execution by creating bogus companies and switching cargoes in order to defeat execution.’ He said that Norwich Pharmacal was apt to cover situations post judgment and ‘on any view, [the individual] has become mixed up, at the very least, in dishonest attempts to defeat execution.’67 Another illustration in a different field is R (on the application of the Revenue and Customs Commissioners) v W.68 In this case, the Revenue and Customs Prosecutions Office had been seeking to enforce a confiscation order against a convicted fraudster. A challenge had been made by a company as to the ultimate beneficial ownership of particular property in Spain. That challenge was ultimately withdrawn. The Revenue then applied against the solicitors who had brought the challenge for information as to those who had given instructions and financial details. Mr Justice Ouseley noted that Norwich Pharmacal principles had previously been applied in connection with disclosure from a third party within the context of a restraint order (which is preliminary to an ultimate confiscation order).69 In R v W, the only point in issue appears to have been discretion. In Credit Suisse Trust Ltd v Intesa Sanpaolo Spa,70 the court was faced with an application for Norwich Pharmacal relief in two connected but separate actions against two Italian banks. The case is one in aid of enforcement (of a Guernsey judgment) relating to claims involving breaches of fiduciary duty (misappropriation of trust funds). The court was faced with two obstacles – namely that information sought was based in Italy, and the necessary enforcement of any Norwich Pharmacal order was to take place in Italy. His Honour Judge Waksman QC proceeded on the basis that the relief was ‘interim’71 pursuant to section 25 of the Civil Jurisdiction and Judgments Act 1982 in aid of Guernsey proceedings, and no jurisdictional point was taken. The respondents both had London branches but maintained that the relevant activity occurred in Italy, the information was shared there, and the relevant applicable banking law was that of Italy. The court held that ordering information located abroad was an ‘exceptional’ remedy only to be granted ‘with care’ and which it was appropriate to do in a case of fraud. To the point as to whether any Norwich Pharmacal order would be complied with by an Italian bank, the judge was inclined to leave that 67 [2006] EWHC 1848 (Comm) at para 17. See generally paras 14-17. 68 [2008] EWHC 2780 (Admin). 69 Re D (Restraint Order Non-Party) Times Law Reports 25 January 1995, regarding a restraint order under the Drug Trafficking (Offences) Act 1986, s 8. The report records that the judge, Mr Justice Turner, considered Norwich Pharmacal and Arab Monetary Fund, but does not reveal the extent to which he considered that principles derived from those cases governed the jurisdiction to make restraint orders against non-parties. In Re TD  [1995]  COD  337 (9  December 1994), another case concerning restraint orders, the same judge had been referred to Arab Monetary Fund [1992] 2 All ER 911, though it is not clear from the report to what extent he considered this to be applicable. 70 [2014] EWHC 1447 (Ch). 71 See further Ch 14.2 below.

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question for the Italian courts having noted the ability of the claimant to seek enforcement of the order pursuant to Article 26 of the Brussels Regulation.

13.7  PUBLIC AUTHORITIES It may be possible to obtain information held by public authorities under the Freedom of Information Act 2000 (the FIA). Under the regime, a public authority must disclose all requested information unless an exemption applies. Parliamentary select committees and public inquiries are public authorities under the FIA. As these bodies often publish information and reports, this may provide a route to accessing information. However, exemptions apply to any documents requested under the FIA. Select committees are not required to disclose documents held for the purposes of an inquiry, as the documents attract parliamentary privilege. Similarly, public inquiries are not required to release documents held for the purposes of an inquiry. When considering alternative routes to accessing information held by public authorities, recent cases indicate that applications for Norwich Pharmacal orders are increasingly being used in order to obtain information from public authorities such as the Metropolitan Police Service.72 As a further route, in Kerner v WX,73 the Court granted an application for disclosure against the DVLA (a public body) under CPR 31.17; disclosure was ordered for the purposes of identifying an unknown wrongdoer (see section 15.3 which addresses CPR  31.17 in further detail).

72 See s 8.2. In Various Claimants v NGN Ltd [2013] EWHC 2119 (Ch), the High Court (Mann J) held that it did have jurisdiction to make a Norwich Pharmacal order against the Metropolitan Police Service, and that it was appropriate to do so as a matter of discretion. In contrast, the Court did not make a Norwich Pharmacal order in The Countess of Caledon v The Commissioner of Police for the Metropolis and another [2016] EWHC 2214 (QB); this was on the basis that the applicant did not have a sufficient cause of action (amongst other reasons). 73 [2015] EWHC 1246 (QB).

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14

Extra-territorial scope

This chapter deals with a variety of inter-related issues concerning the extraterritorial scope and effect of Norwich Pharmacal and Bankers Trust orders. This includes situations in which the underlying dispute is more closely connected with another jurisdiction, where the respondent may be outside the jurisdiction and where the documents or information sought may be located in or otherwise more closely connected with another jurisdiction. This chapter covers the following topics: (1) the potential barrier to relief posed by statutory regimes for obtaining evidence in support of foreign proceedings; (2) the relevance in this context of interim relief in support of foreign proceedings; (3) the basis for establishing jurisdiction, with and without a European dimension; and (4) limits upon the discretion in relation to extra-territorial situations. As will be described below, question marks now exist over the extent to which Norwich Pharmacal and Bankers Trust relief can be granted where the substantive proceedings will be overseas, both as a result of statutory constraints and also limited jurisdictional gateways.

14.1  SUBSTANTIVE DISPUTE OVERSEAS Until relatively recently, it appeared to be settled that Norwich Pharmacal could be granted even where the substantive proceedings were to be overseas and the intended target in those proceedings was based overseas. However, there is now clear authority that the statutory regime for obtaining evidence in support of overseas proceedings is engaged in this situation and that, except perhaps within limited bounds, Norwich Pharmacal relief is not available. If relief is available, it will be confined to ‘information’ rather than ‘evidence’, though doubt has been cast upon whether that distinction is valid and can be relied upon by an applicant. Originally, it appeared that relief would be available in support of overseas proceedings. An example of such a situation was Smith Kline v Global 215

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Pharmaceuticals,1 an infringement case where the applicants sought from an English respondent the identity of a Spanish supplier of pharmaceuticals into the UK, so as to enable the applicants to bring proceedings in Spain.2 That order was granted. Similarly, in Societe Romanaise,3 Millett J  ordered disclosure by an English respondent of information to help determine whether or not the applicants should commence infringement proceedings in Italy. In both of the above cases, the respondents were themselves defendants to substantive English proceedings.4 Nonetheless, the principle appeared to be of broader application. Relief in support of overseas proceedings was also granted in Mohamed and in Aamer, even in the absence of English substantive proceedings. Moreover, in Rusal, Mr Justice Tugendhat appears to have accepted in principle that discovery could be sought ‘in aid of foreign proceedings’, though he expressly reserved the question of interaction with the statutory regime (described in more detail below).5 He said that the statutory route would be the appropriate one ‘unless there is great urgency or other good reason’ but that he did not need to consider the issue further. Further, in Shlaimoun v Mining Technologies International,6 Mr Justice Coulson concluded that relief was available where it was not known where proceedings would be brought, even if it was known that there was a possibility that the proceedings would be overseas (in that case in Ontario). He stated that this form of relief was ‘a stand-alone remedy which should not, unless absolutely necessary, be constrained’ by the more cumbersome statutory procedures for obtaining evidence. However, in Omar, the Court of Appeal upheld the earlier decision of the Divisional Court in the same case to the effect that Norwich Pharmacal relief could not be obtained for use in foreign criminal proceedings.7 The basis for this conclusion was that Parliament could not have intended such a common law remedy to survive the introduction of the statutory scheme for international cooperation in the Crime (International Cooperation) Act 2003. By contrast, the Divisional Court had concluded that Norwich Pharmacal relief survived, at least in principle, but that it was limited to information rather than evidence. That distinction was roundly rejected by the Court of Appeal. In a civil context, a similar conclusion was reached by Mr Justice Flaux in Ramilos Trading v Buyanovsky8 as regards the equivalent provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975. He rejected the submission that there was any significant difference between the two statutory regimes for this purpose. As explained below, he left open the possibility that

1 2

See Ch 10, fn 38 above and accompanying text, which outlines the facts. See, for example, the formulation of the issue at [1986] RPC 394, per Browne-Wilkinson LJ at 400, line 25. 3 [1991] FSR 1. 4 See also Jade Engineering [1996] FSR 461. There the supplier was also apparently Italian. In granting relief to identify the supplier, the judge appears to have envisaged that this would prevent further infringement in England and also in other jurisdictions, as well as enabling the plaintiff to investigate the defence put forward by the substantive defendant. 5 [2011] EWHC 404 at paras 55–59. 6 [2011] EWHC 3278 (QB). 7 R (on the application of Omar and Others) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA 118, upholding the Divisional Court [2012] EWHC 1737 (Admin). See Ch 6.3.2. 8 [2016] EWHC 3175 (Comm).

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relief might remain available as regards information as distinct from evidence, it being clear that the particular case involved a request for evidence.9

Information and Evidence Following the Ramilos case, any applicant will need to establish that the request involves ‘information’ rather than ‘evidence.’ This distinction has been commented upon in a number of contexts, including in relation to statutory provisions on jurisdiction (see further below). In the Gibraltar case of Secilpar v Fiduciary Trust Limited,10 the Gibraltar Court of Appeal accepted that the relief sought information rather than evidence and was thus permissible.11 Another authority to similar effect was Manufacturer’s Life Insurance Co of Canada v Harvest Hero International, a decision of the Hong Kong Court of Appeal. The Court recognised a distinction between information and evidence and concluded that Norwich Pharmacal, being about information, was not therefore impinged upon by the statutory regime for obtaining evidence for use in foreign proceedings. 12 The existence of a distinction was supported by the Court of Appeal in Republic of Haiti v Duvalier,13 a case relating to ancillary disclosure from a third party in support of a freezing injunction, where the substantive proceedings were in France. The proceedings were brought by the Republic of Haiti against the Duvalier family for alleged embezzlement of US$120 million of State funds. One aspect of the ancillary disclosure was directed at an English firm of solicitors. They resisted disclosure on the basis that it would involve providing ‘evidence’ (and was thus precluded: see below). The Court of Appeal required disclosure as regards the Duvaliers’ worldwide assets. This was ‘part and parcel of the Mareva order’. That information was not evidence. Clearly, however, some information can also comprise evidence. The Divisional Court in Omar said that the wide ranging order in Mohamed had been ‘in effect evidence’ and said that no objection had been taken on that ground in Mohamed.14 However, whilst the same submission as to the overlap with the statutory regime does not appear to have been advanced, the distinction between information and evidence was addressed. In Mohamed, the court had said that ‘the action cannot be one used for wide-ranging discovery or the gathering of evidence and is strictly confined to necessary information’.15 The court had also dealt with the specific submission that the applicant had been 9 10 11 12 13 14 15

The distinction between information and evidence arises also in relation to s 25 of the CJJA 1982, considered further in section 14.2 below. Support for the distinction can be found in the judgment of Lord Sumption in Singularis. [2003-04] Gib LR 463, Court of Appeal (Glidewell P, Stuart-Smith and Otton JJA). [2003-04] Gib LR 463 at paragraphs 60–61. [2002] 1 HKLRD 828 (Rogers VP and Le Pichon JA) applying the Evidence Ordinance (Cap. 8) and Order 70 of the Rules of the High Court. These reflect the provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and related rules. [1989]  ECC  54. See also [1990] 1  QB  202 where the orders were upheld, again by the Court of Appeal, following the intervention after service of the Duvaliers. [2012] EWHC 1737 (Admin), para 55. [2008] EWHC 2048 (Admin) at para 133.

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seeking evidence not information and had rejected this: ‘We do not accept the submission that what is being sought is evidence; what the Foreign Secretary holds is information essential to a fair consideration of [the applicant’s] case’.16 The Divisional Court’s decision in Omar was appealed to the Court of Appeal.17 The leading judgment was given by Lord Justice Kay, who rejected the distinction between information and evidence as being ‘elusive’, ‘illusory’ or ‘ephemeral’.18 As mentioned above, the equivalent provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975 were addressed in Ramilos. Since the Omar decisions, the Privy Council had commented upon the distinction mentioned there between information and evidence.19 On the one hand, Lord Sumption JSC had considered the distinction to be a meaningful one (though probably not on the facts of Omar). On the other, Lord Mance JSC had expressed the distinction as likely to be illusory. In Ramilos, Mr Justice Flaux referred to these two obiter observations but found it unnecessary to reach a conclusion since, in the particular case, the requests made were really for evidence and this could not be changed simply by narrowing the requests.20 To that extent he left open the possibility that Norwich Pharmacal might survive where there was a request for pure information (such as a necessary identity) which is capable of being distinguished from evidence. Where the relief is sought for proceedings within the jurisdiction, the statutory regime will not present any obstacle. It may be more difficult if it is less clear where proceedings might be brought. In Ramilos, Mr Justice Flaux considered the possible causes of action and concluded that those which might give English jurisdiction did not meet the required ‘good arguable case’ threshold. By contrast, in the earlier Shlaimoun case, albeit before Omar and related cases, the judge had concluded that, when the application had been made, no decision had been reached on jurisdiction for any claim and that there were many different possibilities, including the UK.21 In that case, the possibility that the resulting proceedings might be overseas did not make the application impermissible. One possibility now might be a requirement for undertakings in such situations governing the use to which any information might be put without further order.

14.2  INTERIM RELIEF AND EXPEDIENCY Whilst the statutory regimes discussed in the previous section may limit the availability of relief in relation to foreign proceedings, there is a distinct regime which confers jurisdiction to grant ‘interim relief’ in support of such foreign proceedings at least in some circumstances. This is provided by section 25 of 16 [2008] EWHC 2048 (Admin) at para 106. 17 [2013] EWCA 118 18 [2013] EWCA 118, para 12. 19 Singularis Holdings Ltd v PricewaterhouseCoopers [2014] UKPC 36. The case considered (at least obiter) the common law power of an insolvency practitioner to obtain information and in this context referred to a number of Norwich Pharmacal authorities. 20 Paras 94 and 109. 21 [2011] EWHC 3278 (QB). See, in particular, paras 9 and 20.

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the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982), which is mirrored by similar provisions in some overseas jurisdictions.22 The principal constraint is an expediency requirement, described below. The issue for present purposes is whether Norwich Pharmacal and/or Bankers Trust relief can be characterised as ‘interim relief’ for this purpose. Separate considerations apply in the case of disclosure orders ancillary to freezing injunctions, which are generally treated as amounting to ‘interim relief’ including when directed against third parties.23 By way of background, at one time, following The Siskina, ‘interim relief’ could not be sought without a substantive cause of action that could be brought in the English courts.24 However, this position was reversed by section 25 of the CJJA 1982. That section originally gave the English courts the power to grant interim relief in support of substantive proceedings brought in the courts of other Brussels (and subsequently Lugano) contracting states. It was subsequently extended by Order in Council in 1997 so that it now confers on the English court the power to grant interim relief in aid of substantive proceedings in any foreign court.25 The provision applies where ‘proceedings have been or are to be commenced’ in any foreign court: section 25(1)(a). There are constraints upon the jurisdiction established by section 25. By subsections (2) and (7): ‘(2) On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject matter of the proceedings in question makes it inexpedient for the court to grant it. (7) In this section ‘interim relief’, in relation to the High Court in England and Wales or Northern Ireland, means interim relief of any kind which that court has power to grant in proceedings relating to matters within its jurisdiction, other than – (a) a warrant for the arrest of property, or (b) provision for obtaining evidence.’

Thus any application for interim relief in the absence of a substantive cause of action within the jurisdiction will be subject to an ‘expediency’ threshold and cannot be a provision for obtaining evidence. This latter constraint reflects the separate statutory regime for obtaining evidence for use in foreign proceedings, described in the preceding section. Against this background, the issue arises whether an application for Norwich Pharmacal or Bankers Trust relief can be characterised as one for ‘interim relief.’ If so, there would then be a statutory basis for the relief in relation to foreign proceedings, potentially limiting the impact of the reasoning in cases such as Ramilos, at least to the extent that, in this context at least, disclosure of information is distinct from obtaining evidence. 22 This provision is mirrored by para 3.1(5) of CPR, PD 6B in relation to service out of the jurisdiction, but must be read alongside Art 35 of the re-cast Brussels Regulation (concerning provisional measures) where applicable. 23 See Ch 5.6.1 above and Republic of Haiti v Duvalier [1989] ECC 54 (see also [1990] 1 QB 202). 24 [1979] AC 210, a case dealing with Mareva freezing injunctions. 25 Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997/302, as amended.

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A starting point is provided by the traditional concept of relief as a complete cause of action. Against this, there is a line of overseas authorities, principally the decision of the Gibraltar Court of Appeal (comprising Glidewell P, Stuart-Smith and Otton JJA) in Secilpar v Fiduciary Trust.26 In that case, a Spanish company had brought proceedings in Portugal against the alleged controlling shareholders of a Portuguese company of which it was a minority shareholder. It was alleged by the Spanish company that the controlling shareholders were in breach of an obligation to make a public offer to acquire the minorities’ stake. The company was interested in identifying the beneficial owners of a company incorporated in the BVI which was believed to be part of the controlling group of shareholders. It intended to join that BVI company and the beneficial owners to the Portuguese proceedings. An initial application was made in the BVI, which had revealed that shares were held by two Isle of Man companies. The present application was made against the shareholders of those Isle of Man companies, both of which were Gibraltar companies carrying on the business of company management. It was acknowledged that they knew the identities of the ultimate beneficial owners. The application was made under Norwich Pharmacal, initially ex parte. The Chief Justice granted the order but subsequently set it aside following the inter partes hearing. He concluded that it would not be ‘expedient’ to make the order as it might be thought to be interfering or intermeddling in the Portuguese dispute. He was also concerned as to whether he should make a disclosure order which the Portuguese court did not itself have power to make. On appeal, the Gibraltar Court of Appeal endorsed the Chief Justice’s conclusion that the application was to be treated as one for ‘interim relief’ under the Gibraltar equivalent of the English Section 2527 since it did not conclude the substantive proceedings. Thus it was necessary to consider whether the expediency test was satisfied and whether the application was for ‘obtaining evidence’. The Court of Appeal reasoned that, whilst ‘useful evidence’ might come to light as a result of the disclosure of the identity of the beneficial owner, the order was not precluded by the section since the identity of the beneficial owner was required to enable proceedings to be brought.28 The Court of Appeal then rejected the Chief Justice’s conclusion on expediency. It was desirable in cases of international fraud and other cases involving serious civil wrongs, to make an order for disclosure to ‘support the proceedings in the primary court’. The order contemplated would assist rather than interfere with the Portuguese proceedings. There are similar decisions in the BVI supporting the view that Norwich Pharmacal relief is interim relief for the purposes of section 25 and equivalent.29 Recent English authority is to the opposite effect. In AB Bank v Abu Dhabi Commercial Bank, Mr Justice Teare differed from the overseas authorities mentioned above, concluding that Norwich Pharmacal was not ‘interim relief’ but constituted final relief against an entirely separate party.30 This view reflects 26 27 28 29

[2004] Gib LR 463. Section 17(b) of Civil Jurisdiction and Judgments Ordinance 1993. See further the discussion about evidence as compared to information in Ch 6.3.2 above. TSJ  Engineering Consulting v Al-Rushaid Petroleum Investment Company HCVAP  2010/13 and Morgan & Morgan Trust Corporation v Fiona Trust HCVAP 2005/24. 30 See Credit Suisse v Intesa (considered at 13.6 above).

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the traditional characterisation of Norwich Pharmacal as a distinct and complete cause of action.31 As mentioned above, this conclusion would not apply to disclosure orders ancillary to freezing injunctions, even if made against third parties (for instance those arguably holding property of the defendant).

14.3  JURISDICTION OVER THE RESPONDENT 14.3.1  No European Dimension Although there have been few decisions dealing explicitly with issues of jurisdiction, the position was reviewed in AB  Bank v Abu Dhabi Commercial Bank,32 including by reference to the previous edition of this book. That case involved a claim by a Bangladeshi bank seeking information from a bank in Abu Dhabi to assist in a proprietary claim. Because of a jurisdiction clause, the underlying substantive claim was likely to be brought in England. Even so, relief was refused on the basis that there was no jurisdiction. As has been mentioned above, English law has traditionally regarded an application for Norwich Pharmacal relief as a cause of action in itself. Where there is no European dimension, proceedings can only be initiated against a party located abroad where permission is obtained for service out of the jurisdiction under one of the gateways now set out in CPR  Practice Direction 6B, paragraph 3.1. Those various gateways do not deal expressly with Norwich Pharmacal relief or with any cause of action involving disclosure. Nonetheless, several of the gateways may be available in appropriate cases. One of the more general gateways is paragraph 3.1(5), which applies to any claim for an interim remedy under section 25(1) of the CJJA  1982, described above. Whilst third party disclosure in support of a freezing injunction is covered by this provision,33 the prevailing view is that Norwich Pharmacal and Bankers Trust relief are not. There are examples of at least two other jurisdictional gateways being employed: the ‘necessary or proper party’ gateway; and that for injunctions ordering a party to perform an act within the jurisdiction. The starting point is the simple five-paragraph judgement of Mr Justice Eady in Lockton Companies International v Persons Unknown and Google Inc.34 The case concerned an application for Norwich Pharmacal relief against the US corporation, Google, which is registered in Delaware and physically headquartered in California. In the lead up to the application there had been correspondence between the claimant and Google in which Google had indicated that it would comply with the intended order but would not accept the jurisdiction

31 Though note the recent Sabados v Facebook Ireland, QBD 2018 (unreported), where jurisdiction was seemingly established in relation to a Norwich Pharmacal application on the basis that the underlying claims (for misuse of private information and/or breach of confidence) were sufficient to establish jurisdiction. 32 [2016] EWHC 2082 (Comm). 33 Haiti v Duvalier above. 34 [2009] EWHC 3423 (QB).

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of the English court. Mr Justice Eady was therefore invited to consider whether it was appropriate to grant permission to serve Google outside the jurisdiction. It is this feature which gives the case its novelty. The underlying facts are predictable: defamatory emails were sent anonymously to the recipients who were based within the English jurisdiction. The circumstances were such that the senders of the offending emails were likely also to be based within the jurisdiction (subject to identification from Google) and the judge was prepared to infer that once the senders were identified service of the intended proceedings would be effected on them within the jurisdiction.35 In his short judgement, Mr Justice Eady stated: ‘It is said that the second defendant (i.e. Google Inc) is a necessary and proper party to the claim. That is because it is submitted to be necessary to obtain an order against it to disclose information which would lead to the identification of the persons unknown who constitute the first defendants.’

This is a reference to paragraph  3.1(3) which applies where the claim form has or will be served on someone within the jurisdiction and another person is either a ‘necessary’ or a ‘proper’ party. The idea that Google might fit either or both descriptions is a novel one. In particular, it may be doubted whether being ‘necessary’ to identify a defendant should be sufficient to make the respondent a necessary party to the substantive claim against that defendant. Even so, a ‘proper’ party is one who would have been a proper party if both had been in England.36 This appears to extend to the situation of two claims ‘which can be conveniently disposed of in the same proceedings’.37 The use of ‘persons unknown’ as co-defendants appears to have become settled practice, particularly in the context of injunctions.38 In AB  Bank, this gateway was rejected. Mr Justice Teare recorded that the contrary position had not been argued in Lockton. The claim would be tried separately as the request for relief was a wholly separate cause of action from the substantive claim. A party cannot be joined solely for the purposes of obtaining disclosure.39 On the other hand, in his short judgment in CMOC  v Persons Unknown,40 His Honour Judge Waksman QC determined that the banks were necessary and proper parties to the claims being brought against the perpetrator defendants, thereby providing sufficient basis for service out of the jurisdiction.

35 It will not in all cases be appropriate to draw the inference that the unknown defendants will be subject to the jurisdiction of the English courts. As an element of the jurisdictional gateway, the applicant will need to demonstrate that it has the better of the argument on this question. 36 See Dicey, Morris & Collins The Conflict of Laws (15th edition) at 11-165. 37 CPR 7.3 which provides that two or more claims may be brought by the same claim form, subject to ‘convenience’. However, it remains to be seen whether jurisdiction could be established in the context of a Norwich Pharmacal application under the necessary or proper party gateway by utilising CPR 7.3. For further analysis, see ‘Should Norwich Pharmacal have extra territorial reach?’ Simon Bushell, L.Q.R. 2017, 133 (Apr), 188–191. 38 See Ch 7.4 fn 33 above. The CMOC case referred to below provides a further example: a freezing injunction granted against persons unknown. 39 Unilever v Chefaro [1994] FSR 135. 40 [2017] EWHC 3599 (Comm) at para 10. It is not clear from the transcript whether AB Bank had been cited to the judge. See also [2017] EWHC 3602 (Comm) recording the continuation of the orders.

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A second route was adopted in Bacon v Automattic, Wikimedia and Denver Post,41 another internet-related case. A well-known financier was concerned to prosecute for defamation the authors of certain allegedly defamatory articles posted anonymously on the respondent’s websites and thus sought disclosure of information held by the respondent in California and Colorado in order to identify the authors. No doubt because the ‘necessary or proper party’ gateway was not available in this case given uncertainties over the whereabouts of the intended defendants, the applicants sought permission under paragraph 3.1(2), which applies to a claim for an injunction ordering the defendants to do an act within the jurisdiction. The argument was that the required disclosure would take place within the jurisdiction and that, as a mandatory order, this was in substance an injunction. This basis for establishing permission to serve out of the jurisdiction seems questionable.42 There are certainly cases which provide authority for treating a disclosure order as an ‘injunction’ for some purposes.43 More significantly, however, all that the respondent is really doing is revealing the information which it holds overseas. The link to the English jurisdiction is provided solely by the order, rather than by any independent factor, at least absent an expectation that the substantive proceedings would be brought in the jurisdiction. In AB Bank, this gateway was rejected on the basis that any requirement to disclose could have been performed elsewhere, such that there was no real link to the jurisdiction (even though, in that case, substantive proceedings were likely to follow within the jurisdiction). It was noted that the point had not been addressed in Bacon. There is one further possibility. If (as in the AB  Bank case) the substantive proceedings would be within the jurisdiction, it may be possible to bring proceedings against ‘persons unknown’ and then seek disclosure from the third party. This approach has been adopted within the jurisdiction in reliance upon CPR  31.17.44 It appears that CPR  31.17, based upon section 34 of the Senior Courts Act 1981 is not limited to third parties within the jurisdiction.45 ‘Persons unknown’ is addressed in further detail in Chapter 15.4. What is clear is that there is a judicial tendency to try to find ways of explaining the extra-territorial reach of the Norwich Pharmacal jurisdiction in appropriate cases.

41 [2011] EWHC 1072 (QB). 42 See to like effect the view in Hollander (13th edition) at 4–19. 43 See, for instance, Maclaine Watson v International Tin Council (CA) in reasoning that a disclosure order could be made under Senior Courts Act 1981, s  37 which deals with injunctions: [1989] 1 Ch 286. 44 See Ch 15.4 above. 45 See ED&F Man Capital Markets LLP v Obex Securities LLC [2017] EWHC 2965 (Ch), Catherine Newman QC in relation to pre-action disclosure under CPR 31.16 and s 33(2). Such an application was found to satisfy the jurisdictional gateway in para 20(a) of PD 6B, for a claim ‘under an enactment which allows for proceedings to be brought.’ By similar logic, an application under CPR 31.17 is an application under s 34 of that Act. This decision is currently being appealed.

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Enforceability It is clear from the report of the decision in Bacon v Automattic that, consistent with Google’s approach in Lockton,46 some of the internet service providers based in the United States were prepared to indicate that they would give disclosure if directed to do so by ‘a court order’. However, one at least of those internet service providers went further in specifying that such court order must be that of a US court. In the pre-action correspondence which preceded the application, Wikipedia set out their policy of complying with overseas subpoenas: ‘Unfortunately the Wikipedia Foundation does not disclose personally identifying information regarding its users absent an immediate threat to life or limb, due to the varying standards and requirements of courts from country to country. There is a procedure by which you can have a foreign subpoena recognised by U.S. courts. Should you choose to pursue this course of action, please send the U.S. subpoena … and we will comply with the subpoena to the best of our ability.’

In what seems likely to become a well-trodden path in these sorts of internet cases, the claimant took appropriate legal advice in California and did indeed identify a route by which a Norwich Pharmacal order might be enforced in California.47 This underlines the fact that obtaining permission to serve out of the English jurisdiction is only part of the battle. Any applicant will also need to be satisfied that a foreign respondent will honour the order or, if in doubt, that the foreign courts will either enforce or otherwise give effect to that order, notwithstanding its extra-territorial reach and the absence of what might be regarded by that foreign court as a substantive cause of action. An English court will need to be satisfied that such possibilities exist since it will otherwise be reluctant to make orders in vain.48

14.3.2  The European dimension Within Europe, by contrast, jurisdiction is generally governed by the recast Brussels Regulation or equivalent.49 Where it applies, this also governs enforcement of judgments. The regulation itself is directly applicable in the UK and thus forms a part of domestic law. Where applicable, it defines the only circumstances in which English Courts can assert jurisdiction.

46 See also, more recently, Hegglin v Persons Unknown [2014] EWHC 2808 (QB). 47 Interstate and International Depositions and Discovery Act, California Code of Civil Procedure, which came into force on 1 January 2010. 48 See, for instance, Kuwait Airways Corporation v Iraq Airways [2010]  EWCA Civ  741 for recent reference to the general principle. 49 Council Regulation 1215/2012. This substantially supersedes the earlier Brussels Convention and later Brussels regulation.

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Does the Brussels Regulation apply? A  preliminary question is whether the Brussels Regulation applies at all to a Norwich Pharmacal application. The critical issue is whether such an application involves ‘suing’ the respondent. In general, the regulation requires that a defendant shall be ‘sued’ where domiciled (Article 4.1) and can only be ‘sued’ in other member states in accordance with specific provisions (Article 5.1). None of those specific provisions contemplate a cause of action seeking disclosure. In the case of National Justice Co Naviera v Prudential Co (No 2)50 the Court of Appeal considered whether the power to make third party costs orders fell within the scope of the earlier Brussels Convention. In the first place, Lord Justice Waller (with whom the other members of the court agreed) concluded that there would ordinarily be jurisdiction absent the Convention.51 He then considered whether the Convention altered this conclusion and stated:52 ‘My inclination is to the view that a summons issued in an action relating to costs does not “sue” the non-party. I would agree with the judge that “suing” contemplates pursuing a substantive cause of action. It does not relate to the making of orders ancillary to substantive proceedings pending before a particular court. To proceed to commit for contempt, for example, would in my view not be to “sue” the alleged contemnor. A proceeding to obtain an order for costs because someone has interfered with or been responsible for the bringing of substantive proceedings is not in my view to ‘sue’ as contemplated in Titles I to III of the Convention.’

In other words, he concluded that the Convention did not apply since the third party costs order did not involve ‘suing’ in the relevant sense. By extending this reasoning, a Norwich Pharmacal application would not involve suing the respondent and thus the situation would fall outside the (now) Brussels Regulation. It would not (for these purposes) involve a ‘substantive cause of action’. On that basis, the question of jurisdiction would be addressed under general principles, as described in the earlier part of this Chapter. This conclusion derives some support from the conclusion in Societe Romanaise where the issue was not addressed at all, suggesting that the Convention was not considered relevant.53 It also derives support from the more general conclusion that orders for discovery and the taking of evidence are not generally considered to be within the scope of the Brussels Regulation.54 This conclusion was 50 [2000] 1 WLR 603. Also referred to as Ikarian Reefer (No 2). 51 The conclusion on this aspect was put beyond doubt by an amendment to the CPR to introduce a specific provision, now 3.1(18). The Court of Appeal’s reasoning has been confined to the situation where an existing defendant is the alter ego of the respondent: see Masri v Consolidated Contractors International (No 4) [2009] UKHL 43. 52 He had earlier cited an unreported decision of Sir Robert Gatehouse in Seismik Securitik v Sphere Drake Insurance 3 February 1998, which appears to have reached the same conclusion on the basis that there was ‘no factual situation giving a right to a remedy against non-parties; there is only the statutory discretion’. This is the classic definition of a cause of action. 53 [1991] FSR 1. Similarly Jade Engineering [1996] FSR 461, though there were ongoing substantive proceedings in England. Note that Smith Kline [1986] 13 RPC 394 dealt with intended proceedings that would be in Spain, but at that time Spain was not a party to the Brussels Convention. See Ch 10.1.2. 54 Dicey, Morris & Collins at 14–204, fn 793.

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reached by Simon Goldblatt QC sitting as a deputy judge, in CFEM  Facades v Bovis Construction,55 in reliance upon the Schlosser report.56 The rationale (drawn from the Schlosser report) is that ‘interlocutory decisions which are not intended to govern legal relationships’ but which ‘arrange the further conduct of the proceedings’ should be excluded from the Brussels Convention, now the Brussels Regulation. Against this, there is some authority for the proposition that the Brussels Regulation does apply. Thus in CMOC  v Persons Unknown, jurisdiction over banks situated within the EU was said to be based upon Article  7(2) which applies to ‘matters relating to tort, delict or quasi-delict’ and provides that a person domiciled in a Member State may be sued in the courts of the place where the harmful event occurred. The application for information was based upon alternative grounds: Bankers Trust and disclosure ancillary to a freezing injunction within CPR 25(1)(g). The substantive cause of action was before the English court, based upon an alleged fraud resulting in monies being transferred from a London bank account to other banks around the world. The case had the additional unusual feature that the perpetrators were being sued as ‘persons unknown.’ In basing jurisdiction upon Article 7(2), it is implicit that the court accepted that the respondent banks were being ‘sued’ in the relevant sense and in respect of both grounds, Bankers Trust and CPR  25(1)(g). There is no consideration of this issue in the judgment. A  further approach is possible, based upon Article  35 of the Brussels Regulation, which provides as follows: ‘Application may be made to the courts of a contracting state for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’

By this provision, the Brussels Regulation specifically confers jurisdiction upon courts other than those that will deal with the substantive dispute. The European Court of Justice has held that the expression ‘provisional, including protective measures’ must be given an autonomous European interpretation as denoting measures which are intended to protect the parties’ rights pending adjudication at trial: Reichert v Dresdner Bank (No 2).57 This might arguably be broad enough to extend to at least certain types of disclosure order. This issue was considered in St Paul Dairy Industries NV  v Unibel Exser BVBA.58 In that case, two parties established in Belgium were in dispute over damages payable in respect of malfunctioning machinery. It was common ground that any substantive proceedings would be in Belgium under the (then) Brussels Convention. Nonetheless, one of the parties applied to the Dutch courts for an order for a provisional hearing of a witness, who was resident in the Netherlands, prior to the commencement of proceedings. The particular point addressed by 55 [1992] I L Pr 51. Cited without adverse comment in Dicey, Morris & Collins, above. 56 Report of Professor Schlosser as rapporteur of the working party for the 1978 convention by which the UK acceded to the Brussels Convention as modified. 57 C-261/90 [1992] IL Pr 404. 58 C-104/03 [2005] IL Pr 31.

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the CJEU was whether this step constituted ‘a provisional measure’ under what would now be Article 35 (then Article 24 of the Brussels Convention), sufficient to confer jurisdiction upon the Dutch court. The CJEU concluded that it did not qualify as such. Questions of pre-action disclosure were for the Belgian courts since they would deal with the substantive dispute. The court noted that the opposite conclusion would have enabled the jurisdictional rules of the Convention to be subverted. It would lead to an undesirable multiplication of the bases for jurisdiction. It is implicit in this decision that the application could only be brought in the Netherlands if justifiable as a ‘provisional measure’. It would be inconsistent with the reasoning if, for example, the Dutch court could accept jurisdiction on the basis that the application was itself a discrete claim (or cause of action) or fell wholly outside the regulation on the basis that it did not involve ‘suing’ the witness in the relevant sense (ie applying the National Justice reasoning, above). Nonetheless, given the questions referred to the CJEU, these issues were not specifically addressed. 59 Against this background, the position under the Brussels Regulation remains unclear.

Provisional measures Turning back to Article 35 (quoted above), certain types of Norwich Pharmacal or Bankers Trust order might be regarded as ‘provisional’ measures permissible under Article 35 even if generally such applications were not considered to engage the regulation. That might be so for example, in a tracing case where efforts are being made to preserve the subject matter of the claim (in other words, a classic Bankers Trust scenario). In the same way, certain types of disclosure ancillary to freezing injunction might be so regarded. Some but not all applications for Norwich Pharmacal relief may properly be characterised as measures intended to protect the parties’ rights pending trial. The disclosure in support of freezing injunctions in Republic of Haiti v Duvalier is likely to fall within the narrower definition. At the other end of the spectrum, a Norwich Pharmacal application seeking the ‘missing piece’ is unlikely to qualify.

59 The Advocate General’s opinion (para  29) recognised that two views were possible and that the application could be seen as an ‘interlocutory application in the main proceedings brought in … Belgium’ or as proceedings ‘having their own autonomy, being independent of any subsequent Belgian action which might arise’. He concluded that the Court had ‘no information on which to base a finding’ on whether there was sufficient connection to the Belgian action. He pointed to the fact that the measure might serve a variety of purposes and that proceedings would not necessarily follow. His overall conclusion, not followed by the CJEU, was that the application would only be a ‘provisional’ measure if it was a means to preserve evidence to be adduced in the later proceedings.

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14.4  SUBJECT MATTER JURISDICTION AND DISCRETION Even where the English court has jurisdiction over the respondent and is able in principle to grant relief, extra-territorial factors may impact upon discretion, both as to whether an order should be made and as to its scope.

14.4.1  The Mackinnon Principle Historically the English courts have, when dealing with extra-territorial situations, taken a more restrictive attitude to the scope of relief against third parties than against substantive defendants. By the 1990s, at least, the English courts were concerned to protect the position of third parties and to regulate the extent to which they were exposed to potentially intrusive applications for disclosure of documents. Thus, the rule became entrenched that where the disclosure is sought from a third party as opposed to a defendant wrongdoer, the information itself must be physically located in England. In Mackinnon v Donaldson Lufkin and Jenrette Securities60 the plaintiff sought an order against Citibank in London to require it to produce documents held at its New York headquarters relating to two of its customers. The application was made under the Bankers Books Evidence Act 1879 alternatively by subpoena duces tecum. In his reasoning, however, Hoffmann J (as he then was) suggested that parallel principles should also apply as regards Norwich Pharmacal relief. It was argued that once jurisdiction had been established against the bank, there could be no further obstacle to disclosure. In response, Hoffmann J said: ‘I think that the argument confuses person jurisdiction i.e. who can be brought before the court, with subject matter jurisdiction i.e. to what extent the court can claim to regulate the conduct of those persons. It does not follow from the fact that a person is within the jurisdiction and liable to be served with process that there is no territorial limit to the matters upon which the court may properly apply its own rules or the things which it can order such a person to do.’

He thus limited disclosure to documents physically in England.61 Nonetheless, he left open the door whereby in ‘very exceptional circumstances’ the court might be prepared to order a third party bank within the jurisdiction to disclose documents located abroad. However, in doing so, he also noted that there were alternative remedies available, for example via the Hague Convention, or by direct application in the New York courts. More recently, a similar issue arose in Rusal v HSBC, the facts of which have been described in Chapter 6.2.7. In summary, the application was made by the Russian aluminium producer Rusal, against the international law firm,

60 [1986] Ch 482. 61 Hoffmann J followed the Court of Appeal in R v Grossman (1981) 73 Cr App R 302 which had dealt with an application under the same Act (though, as he noted, the decision was seemingly without jurisdiction since it was a criminal matter and, in any event, because there had not been an inter partes hearing following the ex parte order there could be no appeal: see, further, Bonalumi v Secretary of State for the Home Department [1985] QB 675).

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Debevoise and Plimpton. According to the evidence, Debevoise had at the time 700 lawyers in offices in the United States, various parts of Europe, and also in Asia, including, in particular, an office in the Russian Federation (Moscow). The parties to the substantive dispute were involved in a wide ranging and complex commercial conflict. Rusal sought disclosure of information from the London office of Debevoise. Fortuitously for Rusal, all documents appear to have been held on one server, such that the London office could access documents created and maintained in other offices. Thus Mackinnon did not apply in terms since all of the documents were accessible from England and, in an electronic era, were effectively within the jurisdiction. The judge, Mr Justice Tugendhat, referred to Mackinnon and said that the same principles should apply to law firms with offices in several different jurisdictions. However, he applied this principle to the threshold requirement of involvement, rather than in respect of the location of the documents sought. The issue was whether lawyers in the office in England and Wales had become sufficiently involved. In fact, the address of the London office of Debevoise had been included on some of the documents in issue and thus there was sufficient involvement. The judge also took into account the related fact that disclosure was potentially available in the Russian proceedings and that the decision whether or not to order disclosure was a matter for the Russian court.62 The judge was mindful also of the risk that an order could put a respondent at risk of being in breach of a mandatory law (ie  confidentiality) in another jurisdiction. In this regard, the judge indicated that had he been inclined to grant the order (which he was not, essentially because he considered that the information sought could be obtained via ongoing Russian proceedings), then he would have included a proviso to prevent any order having unjustifiable extraterritorial effect and to avoid putting the law firm at risk of being in breach of its professional obligations in other jurisdictions. Similar issues might apply, for example, in jurisdictions where it would be a criminal offence to disclose certain information, as might be the case in relation to information held by banks about their customers. In a case involving an international bank, law firm, or other international professional services firm, the rationale for the decision in Mackinnon can readily be understood, given the likelihood of cross-border regulation. However, the principle may be unduly restrictive, particularly in the context of large-scale international fraud. As illustrated by Rusal, the Mackinnon principle may have run its course in an era when so much information is created and shared electronically and is therefore accessible in a way which obliterates national borders. Moreover, the Mackinnon principle is difficult to apply in a case requiring the provision of information. Where there is jurisdiction over the respondent, it would be impracticable to limit the disclosure according to whether the information was known to that respondent’s representatives within the jurisdiction. This approach was adopted in Credit Suisse Trust v Intesa San Paolo,63 where the application was against the London branches of two Italian banks. Relief was 62 This is considered further in Ch 11.9 which deals with ‘Alternative Avenues’: see, in particular, the section dealing with ‘International Considerations’. 63 [2014] EWHC 1447 (Ch), HHJ Waksman sitting as a judge of the High Court.

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granted even though the information sought related to matters in Italy. It was noted that there was nothing that prevented an order being made, particularly in a case of fraud, but that it was exceptional and care was necessary. It is suggested that Mackinnon should not be regarded as laying down a rule demarcating what is and is not appropriate in cases involving extra-territoriality. The simple principle based upon the location of documents is no longer enough, if it ever was. Rather, the court should look at all of the surrounding circumstances and consider whether relief is appropriate, having regard to all the various connections to the different jurisdictions. If the respondent happens to be heavily regulated in several jurisdictions a solution should be found in defining any order as consistently as possible with those constraints. Where there are no such constraints, there would seem to be no reason in principle not to order disclosure. Where there is any risk that disclosure will put the Respondent in breach of its obligations in another jurisdiction, this issue will need to be addressed by the court. This can pose difficult issues where an order is sought on an ex parte basis, as may be the case in a Bankers Trust situation. In such cases, the draft order might include a qualification permitting a delay in disclosure if the respondent reasonably believes that compliance with the order would contravene the law in another jurisdiction, but on condition that the issue be referred to the court at the earliest opportunity so that this can be specifically addressed.

14.4.2  Redress other than proceedings The preceding discussion has focused upon the position in the context of formal proceedings. However, Norwich Pharmacal relief need not be sought exclusively for intended proceedings. Where the relief is sought for another purpose, the considerations addressed above do not apply directly. Thus, for example, the applicant may intend to dismiss an employee or terminate a contract, rather than bring proceedings. Nonetheless, similar issues may arise. If a Spanish company seeks to discover which of its employees in Spain (with contracts of employment governed by Spanish law and containing Spanish jurisdiction causes) leaked confidential information to an English company, it may be said that the claim has more to do with Spain than England. Even though it has jurisdiction, the English court may choose not to grant relief. Similarly, if it is right (as suggested in Chapter 9.2) that relief should in principle be available to a shareholder for the purpose of a company EGM, it must be supposed that the English courts will be all the more cautious where that company is formed under the laws of another jurisdiction, even if the other protagonists and documents are present within the English jurisdiction.

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Related jurisdictions

This chapter is intended, for completeness, to draw attention to other jurisdictions by which an applicant may in some circumstances seek an order which might achieve access to information other than through the normal disclosure route in civil litigation. Norwich Pharmacal, albeit by a different route. There have been some significant developments in this field including clarification on the use of subject access requests under the Data Protection Act 2018, and previously the Data Protection Act 1998, and the introduction of unexplained Wealth Orders pursuant to the Criminal Finances Act 2017.

15.1  PRE-ACTION DISCLOSURE One of the recommendations to emerge from Lord Woolf’s review of civil procedure which led to the CPR was that pre-action disclosure should be extended to all cases. This had previously only been available in cases involving personal injury and death. The result was legislative amendment,1 coupled with a new CPR 31.16. One of the key constraints upon pre-action disclosure is that it can only be ordered against a respondent who is ‘likely’ to be a party to the subsequent proceedings. In the leading case, Black & Ors v Sumitomo Corporation and others,2 Rix LJ (with whom the other members of the court agreed) stated that ‘likely to be a party’ meant no more than ‘may well’. Even where there is a potential cause of action against the respondent, the applicant may be precluded from seeking pre-action disclosure if it has no intention of bringing a claim against that respondent.3 Another constraint is that, by CPR  31.16(3)(c), an order can only be made where, if proceedings had started, the respondent’s ‘duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents’ sought. This formulation may pose some difficulties in circumstances

1 Now Senior Courts Act 1981, s 33 and County Courts Act 1984, s 52. 2 [2001] EWCA Civ 1819. 3 See BNP Paribas v TH Global [2009] EWHC 37, where this appears to have been one of the reasons why the application was brought under Norwich Pharmacal instead: para 38.

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where that duty of standard disclosure would not apply.4 In particular, that will be the general position under the disclosure pilot scheme in the Business and Property Courts (effective from 1  January 2019 for a period of two years). Under that pilot scheme, parties will no longer be required to give standard disclosure; the scheme introduces two separate phases: (i) a mandatory phase of ‘Initial Disclosure’ to be provided with statements of case and extending to ‘key documents that are necessary to enable the other parties to understand the claim or defence they have to meet’;5 and (ii) the possibility of additional or ‘Extended Disclosure’. The Practice Direction for the pilot scheme preserves the pre-action disclosure regime in CPR 31.16 and adds that the new scheme is not intended to change ‘the application or working of’ the various provisions that are preserved.6 Thus, even though the pilot removes any duty of standard disclosure, the intention seems to be that the scope of pre-action disclosure will be unchanged. Under CPR 31.16(3)(d), disclosure must be ‘desirable’ in order to: (i) dispose fairly of the anticipated proceedings; (ii) assist the resolution of the dispute without proceedings; or (iii) save costs. In Black, Rix LJ stated that these jurisdictional thresholds merge into the exercise of discretion. Nonetheless: ‘In my judgment, for jurisdictional purposes the court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail.’7

As far as the discretion was concerned, Rix LJ said that it would depend on all the facts of the case, but important considerations would include ‘the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure.’8 A  related issue is the role played by the merits of the potential substantive claim. In Kneale v Barclays Bank9, Flaux J held that to satisfy the jurisdictional criteria in CRR 31.16(a)&(b), ‘the applicant has to show some sort of prima facie case which is more than a merely speculative “punt”.’ However, this decision was overturned in Smith v Secretary of State for Energy and Climate Change 4 In the recent (as yet unreported) case of In2uitive Ltd v Educare Learning Ltd (8  October 2018, Judge Hacon) the proceedings, if started, would take place in the IPEC where there would be no duty of standard disclosure. Consideration appears to have been given to whether the requirement in CPR 31.16(3)(c) should be disapplied entirely, but it was not necessary to determine this issue because the application failed in any event on other grounds. 5 Pilot Scheme Practice Direction dated 31  July 2018, para  5 ‘Initial Disclosure.’ See para  6 for ‘Extended Disclosure.’ 6 Pilot Scheme Practice Direction, para 1.10. See also para 1.9. 7 [2001] EWCA Civ 1819 at para 81. This approach was approved in Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585 at para 10. 8 [2001] EWCA Civ 1819 at para 88. 9 [2010] EWHC 1900 (Comm).

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where Underhill LJ (with whom Floyd LJ and Longmore LJ agreed) held that for the purposes of satisfying the jurisdictional criteria in CRP  31.16(a)(d), there was no requirement for an applicant to establish a minimum level of arguability (ie that they had an arguable or prima facie case).10 However, if these jurisdictional criteria were satisfied, then the merits of the potential substantive claim were relevant to the court’s exercise of its discretion on the facts of the particular application.11 In Black, Rix LJ considered the earlier authorities on pre-action disclosure when it had been confined to cases involving personal injury and death and, by statute, a claim was ‘likely’ to be made. The authorities were not binding, but he concluded: ‘What, however, these authorities on the unamended section in my judgment reveal, and usefully so, is as follows. First, that at any rate in its origin the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient in the pleading of their case.’12

Later, in Rose v Lynx Express13 the Court of Appeal said ‘In our view it will normally be sufficient … for the substantive claim pursued in the proceedings to be properly arguable and to have a real prospect of success’. However, Black was not cited. Moreover, the Court of Appeal was not dealing with the minimum requirement but was disapproving of the reverse: the judge had sought to resolve a central issue of construction on the pre-action disclosure application. The concern posed by Rose derives from the parallel to the summary judgment test in CPR Part 24. This does not impose a high threshold but focuses attention on whether there is a ‘real prospect of success’.14 However, where there is a missing ingredient (as envisaged in Black), it may not be possible to meet that test, at least if applied in the same way as demanding a real prospect of success on each ingredient of the claim. There is an obvious parallel to the missing piece of the jigsaw cases in a Norwich Pharmacal context. It is clear that speculation alone will not suffice and that there must be some basis for seeking pre-action disclosure.15 In A and B v Somerset County Council,16 Mr Justice Eady cited the Rose test of a real prospect of success, though he did

10 Para 23. 11 Para 24. 12 [2001] EWCA Civ 1819 at para 68. 13 [2004] EWCA Civ 447. Followed in Pineway, below. 14 See CPR  24.2. It has been said that, to withstand an application, the claim must have a realistic rather than a merely fanciful prospect of success (Swain v Hillman [2001] 1 All ER 91, CA) and that there must be ‘some degree of conviction’ involving a case that is ‘better than merely arguable’ (ED&F Man Liquid Products v Patel [2003] EWCA Civ 472, a case concerning an application to set aside judgment in default which concluded that the test, phrased in similar terms, was the same as under CPR 24.2). 15 In addition to the authorities cited, see also Mars UK Ltd v Waitrose Ltd [2004] EWHC 2264 in which the court considered that before it can make an order for pre-action disclosure, the applicant must show a prima facie case that they are entitled to substantive relief. 16 [2012] EWHC 2753.

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not address the other authorities mentioned above.17 He concluded that the Master had applied too stringent a test in relation to whether causation could be made out. Although causation might ultimately prove an insurmountable problem, this did not preclude pre-action disclosure to permit the issue to be investigated. However, in other cases the courts have taken a different approach to the role of the merits of a potential claim than that adopted in Rose. In Baron Jay v Wilder Coe (A  Firm),18 Tugendhat J  granted an application for pre-action disclosure despite considering that he could not say ‘that there is no substance in the respondents’ submission that the claim remains speculative and may be a fishing expedition.’ In Jet Airways (India) Ltd v Barloworld Handling Ltd,19 the Court of Appeal upheld Burton J’s decision at first instance to order pre-action disclosure on the grounds that the proposed claim ‘was more than a merely speculative punt’.20 Overall, it seems clear from the body of more recent cases that if a claimant is able to plead out an inferential case against the intended defendant, that ought not to be fatal to an application for pre-action disclosure. Direct evidence can be obtained through pre-action disclosure which may well have a ‘real bearing on the ability to dispose of the case without proceedings or to narrow the issues and to save costs in any event’ (The ECU Group PLC v HSBC Bank PLC21). Finally, CPR  46.1 provides that, where a person applies for pre-action disclosure, the general rule is that the court will award the person against whom the order is sought his costs of both the application and of complying with any order made. The court may make a different order having regard to all the circumstances, including the extent to which it was reasonable for the respondent to oppose the application.22

15.2  ACCESS TO COURT DOCUMENTS It may be possible for a non-party to litigation to obtain a document from court records. Under CPR 5.4C(1), the general rule is that a person who is not a party to proceedings may obtain statements of case without the permission of the court. CPR 5.4C(2) provides that if the court gives permission, a person who is not a party to proceedings may obtain from the court records ‘a copy of any other document filed by a party, or communication between the court and a party or another person.’ In Cape v Dring,23 the Court of Appeal held that the ‘records of the court’ for the purposes of the rule are essentially documents kept by the court office as

17 At para  15, he referred to having been provided with ‘such guidance from the authorities as is available’ and then cites Rose as an example. 18 [2003] EWHC 1786 (QB) para 19. 19 [2014] EWCA Civ 1311. 20 Para 15. 21 [2017] EWHC 3011 (Comm) p 11. 22 See Bermuda International Securities Ltd v KPMG [2001] EWCA Civ 269 and SES Contracting Ltd v UK Coal Plc [2007] EWCA Civ 791. 23 [2018] EWCA Civ 1795.

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a record of the proceedings, many of which will be of a formal nature.24 They do not include: the trial bundles; the trial witness statements; the trial expert reports; the trial skeleton arguments or closing notes or submissions; or the trial transcripts. However, it was also ruled that the court has inherent jurisdiction to grant non-parties access to documents and this extends beyond the express powers in CPR 5.4C. The inherent jurisdiction of the court includes the power to grant access to witness statements, expert reports and skeleton arguments/written submissions (but there is no general right for non-parties to access the documents exhibited). The court also has the power to grant access to documents which have been read in open court, and documents which it is necessary for a non-party to inspect in order to meet the principle of open justice. It is not possible for the court to grant access to documents simply on the basis that the documents have been referred to (rather than read) in open court. When considering whether to grant a non-party access to a document, whether pursuant to CPR 5.4C or through its inherent jurisdiction, the court must assess the principle of open justice. The court has to balance the non-party’s reasons for seeking copies of the documents against the party to the proceedings’ private interests in preserving their confidentiality. The court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection. The Court of Appeal confirmed that the principle of open justice will be engaged as soon as there is a hearing of the matter, whether or not the case settles before judgment. In terms of restrictive powers, under CPR31.22 the court has the power to restrict the use of a document which has been disclosed in proceedings, even where the document has been referred to in a public hearing. In NAB v Serco Ltd,25 the High Court held that when considering whether to restrict the use of a document, the court will balance the public interest in open justice and the risk of harm to the legitimate interests of others. These are the same principles which the court will consider when deciding whether to grant an interested party access to documents on the court records under CPR 5.4C(2).

15.3  THIRD PARTY DISCLOSURE The possibility of applying for disclosure from a third party was introduced with general application by the legislative amendment in conjunction with the new CPR.26 The relief under CPR  31.17, is available only where proceedings are on foot and thus does not permit pre-action disclosure. This relief relates only to orders made against non-parties for disclosure of documents or classes

24 The power of the court to grant an interested party access to documents also extends to documents that have been served but not filed. In Blue v Ashley [2017] EWHC 1553 (Comm), the High Court held that the court has the power at common law to grant access to such documents. 25 [2014] EWHC 1225 (QB). 26 Senior Courts Act 1981, s 34.

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of documents. It does not expressly permit the disclosure of information about documents.27 CPR 31.17(3) requires an applicant for third party disclosure to demonstrate that (1) the documents sought ‘are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings’; and (2) disclosure is ‘necessary in order to dispose fairly of the claim or to save costs’. In Three Rivers DC v Bank of England (No.4), 28 the Court of Appeal held that the word ‘likely’ does not mean more probable than not but something which is ‘more than fanciful’. If the two jurisdictional limbs set out in CPR  31.17 are satisfied then the court has discretion to grant third party disclosure. As when exercising its discretion to grant Norwich Pharmacal relief against a party which has become ‘mixed up’ in wrongdoing, when exercising its discretion under CPR 31.17, the court will conduct a balancing exercise and take broader considerations into account.29 However, the courts’ approach to exercising its discretion in relation to applications for pre-action disclosure differ in some respects to the approach taken in respect of Norwich Pharmacal relief. Whilst it has been held that ‘[d]isclosure from third parties is the exception rather than the rule’,30 when considering an application for third party disclosure, the courts have afforded significant weight to the fact that ‘the public interest in ensuring a fair trial in the light of all relevant evidence is of the utmost importance’.31 Therefore, if disclosure of the documents sought is necessary in the interests of litigation, this need overrides confidentiality.32 Finally, CPR 46.1 also applies to non-party disclosure in the same way as preaction disclosure, ie the respondent’s costs associated with the application are usually paid by the applicant.

15.4  PERSONS UNKNOWN Under CPR 31.17, the court has the power to order disclosure for the purposes of identifying an unknown wrongdoer. In Kerner v WX33 Warby J  granted an application for disclosure by the DVLA of details of the registered keeper of a car driven by two individuals who had allegedly harassed the applicant and her son. Warby J held that ‘The wording of s 34(2) and CPR 31.17(3)(a) is perhaps not plainly and obviously apt to confer a power to order disclosure for the purposes of identifying an unknown party. In my judgment, however, it would be inappropriate to construe either provision in a narrow or literal way’.34

27 Andrew v News Group Newspapers [2011] EWHC 734 (Ch). 28 [2002] EWCA Civ 1182. 29 Flood v Times Newspapers [2009] EWHC 411 (QB) para 25. 30 Frankson v Home Office [2003] EWCA Civ 655 para 10. 31 Ibid, para 38, Mitchell v News Group Newspapers Ltd [2014] EWHC 1885 (QB) para 15 and Science Research Council v Nasse [1980] A.C. 1028 at 1088D-E. 32 Ibid, para 38. 33 [2015] EWHC 1246 (QB). 34 Ibid, para 25.

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However, if it is not possible to identify an unknown wrongdoer, the Court has jurisdiction to grant an injunction against an unknown defendant.35 Recently, an injunction against an unknown defendant was used as the basis for a Bankers Trust order. In CMOC  v Persons Unknown,36 the Court granted a freezing order against persons unknown. The claim arose out of an alleged fraud which had been committed by persons unknown infiltrating the email account of one of the senior management of the claimant and sending payment instructions to the administration of the company. As a result, a number of very large payments were sent out from the company’s bank account. In order to enable the claimant to discover what had happened to the money which had been paid out of its bank account, the court made a Bankers Trust order. Pursuant to the order, various banks (some based outside the English court’s jurisdiction) were required to disclose documents containing information that would allow the claimant to discover what had happened to the money that had been paid out from its bank account. An injunction against persons unknown also assisted the claimant in Brett Wilson v Unknown.37 In this case, the claimant who had been defamed online, made an application for a Norwich Pharmacal order against the owner of the website that had provided the platform for publication. However, the website owner was a proxy registrant service that specialised in providing proxy services to those who do not wish to be traced and moved its servers from one country to another on a regular basis. The Court made a Norwich Pharmacal order. However, the order was not responded to. Following this, the claimant proceeded to claim an injunction, damages and costs against the unknown operators of the website; the claim was served with the permission of the court. Eventually the claimant obtained default judgment for damages and costs and a final injunction for the removal of the defamatory material. The Court also has jurisdiction to award damages in a claim brought against an unknown wrongdoer. In Cameron v Hussain38 a motorist who had been injured in a hit and run collision was permitted to bring an action for damages against the unknown person who was driving the car at the time of the collision. The court awarded damages, which the insurer of the car was required to pay under s 151 of the Road Traffic Act 1988.

15.5  WITNESS SUMMONS Another method of obtaining documents from a non-party to litigation is the issue of a witness summons requiring the production of documents, formerly a subpoena duces tecum in the High Court. The relevant rules are set out in CPR 34.2 to 34.7. A witness summons can require a witness to produce documents

35 36 37 38

This principle was established in Bloomsbury v News Group Newspaper [2003] EWHC 1205. [2017] EWHC 3599 (Comm). [2015] EWHC 2628 (QB). [2017] EWCA Civ 366

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to the court either on a date fixed for a hearing (including an interim hearing) or the trial, or any other date that the court directs.39 Formally, the process of issuing a witness summons is conducted without the involvement of the court. However, any person served with a witness summons can challenge the summons by application to court. Assuming that documents are produced, they must be produced to the court which will then determine whether or not to provide them to the parties. This creates the prospect of the need for adjournments and thus increased cost. A  practice has therefore developed whereby a subpoena is made returnable on a day artificially fixed as the first day of trial although the trial proper would not start until later.40 Documents must be described with some specificity. In South Tyneside Borough Council v Wickes Building Supplies41 Gross J considered the authorities relating to the subpoena duces tecum and concluded that they supported the conclusion that the documents to be produced must be specifically identified, or at least described in some compendious manner that enabled the individual documents falling within the scope of the summons to be clearly identified. A  witness summons could not be used as an instrument to obtain general disclosure or to conduct a fishing or speculative enquiry. The Court of Appeal in Tajik Aluminium v Hydro Aluminium42 reiterated a similar point. Lord Justice Moore-Bick, who delivered the court’s judgment, stated that a witness summons must identify the documents to be produced ‘with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do.’43 Anything less was considered to be unfair to the witness44 whilst also making supervision and enforcement by the court extremely difficult. The Court of Appeal went on to state that whether documents have been sufficiently identified is likely to depend, at least in part, on the particular circumstances of the case. The test is unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms, although in cases where the transaction is selfcontained and sufficiently well-defined that might be satisfactory. In general, any doubts about the adequacy of the description are resolved in favour of the witness. In the course of his judgment, Moore-Bick LJ referred to an example given in an earlier authority45 that a request for ‘monthly statements for the year 39 Producing documents at trial does not allow the party seeking production to see them beforehand, creating a need for adjournments and, thereby, increasing costs. A  practice therefore developed whereby a subpoena was made returnable on a day artificially fixed as the first day of trial although the trial proper would not start until later (see Khanna v Lovell White Durrant [1995] 1 WLR 121). 40 Khanna v Lovell White Durrant [1995] 1 WLR 121. 41 [2004] EWHC 2428 (Comm). 42 [2005] EWCA Civ 1218. This case concerned an arbitration. Section 43 of the Arbitration Act 1996 provides that a party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to produce documents or other material evidence. CPR 31.17 (third party disclosure) does not apply in the context of arbitration. 43 [2005] EWCA Civ 1218 at para 24. 44 In circumstances where the person to whom the witness summons is addressed is under an obligation to physically bring the documents to court and is at risk of being in contempt of court if they fail to do so. 45 In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331.

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1984 relating to [your] current account’ with a named bank would be sufficiently clear, whereas a request for ‘all [your] bank statements for 1984’ would not. In South Tyneside Gross J  emphasised that production of the documents sought must be necessary for the fair disposal of the matter or to save costs.46 In this regard, the court is entitled to take into account the question of whether the information can be obtained by some other means.47 The fact that the documents of which production is sought are confidential or contain confidential information is not an absolute defence to their production by way of witness summons. The relevant non-party is entitled to their reasonable travelling expenses and compensation for loss of time as a result of their attendance at court. However, unlike an order under CPR 31.17, they are not entitled to their costs of complying with the witness summons.

15.6  CHC SOFTWARE AND RELATED CASES There is a line of authority which establishes that the court can in certain circumstances order a party to ongoing litigation to reveal the identity of innocent parties. The cases have developed by drawing in part upon Norwich Pharmacal but they are better regarded as examples of a related principle, rather than the mainstream of Norwich Pharmacal. For that reason they are dealt with separately in this chapter. The leading case is CHC  Software v Hopkins & Wood,48 where relief was granted to identify innocent recipients of certain letters. The case concerned a software product for nursing management known as ‘Sasha’ and marketed by a company of similar name. That company had been party to a distribution agreement with CHC, who had also developed a competing software product ‘Crescendo’. The defendants to the present case, Hopkins & Wood, were lawyers representing Sasha, in which capacity they had written to several third parties alleging (amongst other things) that Crescendo had breached their client’s copyright, that there were proceedings on foot, they had been advised by specialist counsel that Sasha had a very strong case and that Crescendo could not therefore be safely be acquired. CHC had not known about the letters at the time. There had been previous proceedings between the parties (though not alleging infringement by CHC) which were resolved shortly before the present action. As part of the consent order, Sasha acknowledged that there had been no infringement by CHC. The present proceedings followed from CHC having found out about the letters. By the time of the hearing they knew about several examples but considered that there were others. They brought proceedings against the lawyers who had written the letters alleging (inter alia) malicious falsehood. The plaintiffs applied for an

46 [2004]  EWHC  2428 at para  23, Gross J  summarised the law derived from a number of pre-CPR authorities. 47 In South Tyneside itself one of the reasons the court set aside witness summonses relating to a rent review arbitration was because other comparables and materials were available to the arbitrator. 48 [1993] FSR 241.

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order requiring disclosure by affidavit of the names and addresses of all persons to whom the defendants had sent similar letters, together with copies. The judge, Mr Justice Mummery, allowed the application. He reasoned that the duty to provide information applied a fortiori to someone who (by contrast to the innocent but involved party) had incurred a liability to the applicant. Here, there was a ‘reasonable cause of action’ against the lawyers. The order did not relate to the identification of wrongdoers but was within the same principle since it would enable the plaintiffs to set the record straight. It had been argued that interrogatories would not be ordered in defamation proceedings to reveal the names of other recipients and that this restriction should be applied by analogy. However, the judge rejected the argument: prior authority permitted discovery by interrogatory where there was evidence of wider publication, but did not allow discovery where this would merely be a fishing expedition.49 In this case, disclosure of the letters would have been provided in due course under the conventional rules for document disclosure. The court noted that ‘within a few days’ they would come under obligations of disclosure in the normal course of the proceedings. It may be doubted whether the analogy to Norwich Pharmacal would always be required where the order is for disclosure during proceedings of material relevant to the issues raised in those proceedings.50 A more interesting scenario would arise if the identities were not relevant51 to pleaded issues, such that disclosure would not otherwise be ordered. It seems that the courts have jurisdiction to make such orders and that they apply Norwich Pharmacal.52 In that context, a decision to disclose the names of innocent recipients would be an extension of Norwich Pharmacal principles. If CHC Software can be so interpreted, the limiting principle may be that there was some wrongdoing, albeit by the respondent rather than the party to be identified. The objective of setting the record straight was a legitimate form of redress (see below) for which disclosure would be ordered. However, it is suggested that such a scenario should not be regarded as falling within Norwich Pharmacal but, rather, as applying some of the principles by analogy. The scenario involves no third party wrongdoer. The scenario is therefore very different from Norwich Pharmacal. The analogy appears to lie in the nature of the relief granted (identification of third parties) rather than any principle governing the availability of that relief. Whether it is appropriate to make such an order will depend upon the substantive cause of action against the respondent. It may be suggested, however, that something exceptional would be required to justify disclosure which was not relevant to the pleaded issues. 49 The case relied upon was Barham v Lord Huntingfield [1913] 2 KB 193 (CA). The judge noted that the prior authority of Russell v Stubbs (1908, HL) reported as a note at [1913] 2 KB 200 had allowed interrogatories where there was evidence of publication to others. 50 An interesting gloss is provided by Jade Engineering, below, in which Mr Justice Jacob observed that the letters in CHC Software would only be disclosable on quantum; that the fact that the letters had been sent would be all that would be needed to determine liability. 51 Strictly, the test is that provided by CPR 31.6: documents relied upon by a party, supporting another party’s case or adversely affecting his or another party’s case, together with documents required by Practice Direction. 52 See Ch 10.1.2 above. Many of the cases here dealt with a situation between applicant and (allegedly) wrongdoing respondent, but nonetheless the discussion of Norwich Pharmacal was premised upon the additional wrongdoing of those who stood to be identified, customers and suppliers respectively.

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In CHC  Software, as noted above, the disclosure was relevant to those issues and would have been ordered in a few days in any event. Accordingly, the judge was exercising a case management decision to bring forward disclosure to serve the legitimate objective of helping to set the record straight (and potentially, therefore, limiting the damages suffered). One case which followed CHC Software is Jade Engineering v Antiference.53 This case involved a familiar fact pattern. The applicant had brought substantive proceedings against the respondent for infringement of design rights in importing and selling transom grooving machines. That case appeared to be strong. The applicant had, in addition, applied for disclosure of the identity of the respondent’s supplier. The judge, Mr Justice Jacob, concluded that there was an arguable case of wrongdoing by the supplier. However, he considered that this conclusion was not a necessary step in light of CHC Software. He reasoned: ‘Still in the question of jurisdiction, however, suppose it were the case that there was no material which suggested that the foreign supplier was a wrongdoer under our law, could the court nonetheless order discovery of the name? The plaintiff certainly would have a legitimate interest in that discovery. He would want, as this plaintiff does, to put that supplier on notice that supply to this country could well involve his customers in infringement and the supply to other countries might well involve infringement under the laws of those countries … ‘The plaintiffs have a design right in this country. Their legitimate purpose in seeking the name of the supplier is to protect that design right from being infringed by the supply to other parties by this unknown supplier in this country. There is also, I  think, a legitimate purpose in the supply of the name of a supplier so as to prevent infringement of corresponding rights in such countries as confirmed. ‘I think the conscience of the possessor of the names would say, “I recognise the plaintiff’s legitimate purpose. It would be wrong for me to refuse to help him. I have got mixed up in the derogations from the plaintiff’s rights.” Equity would enforce the whisper of that conscience.’

On this ground (and others54) the judge ordered disclosure. It seems important to his reasoning that there was a wrong by someone, the respondent. In reaching the above conclusion, Mr Justice Jacob had ‘stood back a little’ and considered general equitable principles given the conflict between CHC Software and a another case at the same level of authority, Roberts v Jump Knitwear.55 In that case, Mr Justice Falconer had dealt with the same fact pattern concerning infringement, save that the applicant sought disclosure of the identity of the respondent’s customers (rather than suppliers). Under the law as it then stood, the customers would not be liable without knowledge of the infringement. The applicant therefore sought the names so that he could put the customers on notice. The judge concluded that he was unable to make the order sought under Norwich Pharmacal since the customers were not, as matters stood, wrongdoers.

53 [1996] FSR 461. 54 He also appears to have considered that the applicant, as plaintiff, should be entitled to the names of the suppliers so as to investigate the defence, an aspect of conventional disclosure. 55 [1981] FSR 527.

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In light of CHC (in which Roberts was not cited) and Jade, it seems unlikely that the decision in Roberts would now be followed.56 In Intercase UK  v Time Computers,57 Mr Justice Patten dealt with an application, again in the context of infringement proceedings, that the defendant should provide a statement of those to whom they had offered to supply infringing copies. The defendant had admitted liability. The judge concluded that the relief should be granted since the details were relevant to quantum, which remained outstanding. Accordingly, ordinary disclosure between the parties remained possible. He considered that conventional Norwich Pharmacal principles did not apply: ‘customers are not in any real sense mixed up in the facilitation of tortious activities by the defendants.’ He cited CHC Software and concluded that, although Mr Justice Mummery had been referred to Norwich Pharmacal, his decision was based upon wider grounds. In Scomadi v RA  Engineeering Co Ltd,58 after determining the substantive proceedings, the court granted the defendants’ application requiring the claimants to provide a witness statement supported by a signed statement of truth listing the identity and contact details of each person to whom they had sent a letter wrongly alleging that the defendants had no right to use branding or designs associated with the claimants. The Recorder relied on the jurisdiction set out in CHC Software.

15.7  RENDERING OTHER ORDERS EFFECTIVE Further relief can also be granted where an original disclosure order (or indeed any order) is not honoured by a defendant. This has been used to justify a disclosure order against a third party, as described below. The general principle can be traced back to the leading case of A J Bekhor v Bilton,59 in which the Court of Appeal concluded that an order for disclosure (against the defendant) could be made ancillary to the power to grant a freezing injunction if necessary for its effective operation. For two members of the Court of Appeal, this was based upon the predecessor of section 37 of the Senior Courts Act 1981 which gave the court the power to grant injunctions where ‘just and convenient’. The third member concluded that the power arose from the court’s inherent jurisdiction. In Maclaine Watson v International Tin Council (No 2)60 the Court of Appeal dealt with attempts to enforce a judgment. Since the judgment debtor was an unincorporated association, the Court of Appeal proceeded on the basis (as

56 Some doubt was expressed by Ferris J in Lagenes v It’s At (UK) [1991] FSR 492, Ferris J. 57 [2003] EWHC 2988. 58 [2017] EWHC 3342 (IPEC). 59 [1981] 1 QB 923 relying (at least Ackner LJ) upon A v C discussed in Ch 5 above. See also CBS v Lambert (CA) [1983] Ch 37. The case was also relied by the Court of Appeal in Re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 520 in support of the proposition that the statutory power to make a restraint orders carried with it the power to make disclosure orders. It was reaffirmed in JSC BTA Bank v Mukhtar Ablyazov [2012] EWCA 1411 and JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2015] EWCA Civ 139. 60 [1989] Ch 286.

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determined by the judge) that the provisions allowing for examination about assets61 did not apply. Nonetheless, the court concluded that it had the power to make an equivalent order against the association. The basis of that power was again section 37 of the Senior Courts Act 1981 (then the Supreme Court Act), seemingly on the basis that the disclosure order itself was an injunction and thus fell within that section.62 Bekhor was referred to in support of this conclusion. This was characterised as authority for the proposition that ‘there is inherent power under what is now section 37(1) to make any ancillary order, including an order for discovery, to ensure the effectiveness of any other order made by the court’.63 This jurisdiction includes the power to order disclosure of assets outside as well as inside the jurisdiction.64 This line of authority was relied upon recently in JSC BTA Bank v Solodchenko65 (an aspect of the Ablyazov litigation) as the basis for a disclosure order against a third party. The case concerned a defendant (Mr Shalabayev) who was the subject of a freezing injunction and who had failed to provide disclosure pursuant to a number of orders. He had been held to be in contempt of court. The application was made against his solicitors for contact details and for material covered by the disclosure order. The judge, Mr Justice Henderson, concluded that the court had the necessary jurisdiction to make such an ancillary order. He relied upon the line of authority referred to above, including Maclaine Watson v International Tin Council (No 2). In so doing, he noted that it was harder to see how section 37 could be the basis for the jurisdiction where there was no injunction. He preferred the inherent jurisdiction described by Stephenson LJ in Bekhor (on which point he was in the minority). The judge also relied upon the inherent power of the court to give directions to solicitors as officers of the court. He left open the issue of whether relief would have been available under Norwich Pharmacal. There was also an application for disclosure of funding details to enable the applicants to consider whether to pursue a third party costs order. The judge would have been willing to make this order, but the point appeared to have been resolved by the information already provided by the solicitors, subject to one point of clarification. The basis for this jurisdiction was not explored, though the implication is that the judge would have based any order on the same authorities referred to above, on the basis that an interim costs order made against the defendant had not been honoured. It is suggested that an analogy to Norwich Pharmacal might be appropriate. The relief sought is to reveal the identity of a potential target for a claim for third party costs. The defendant was certainly sufficiently involved with that funding. However, the potential obstacle is the lack of wrongdoing by the funder. However, there would be an arguable right against that third party funder.66 61 RSC Order 48. Now CPR, Pt 71. 62 The key conclusion is at [1989] Ch 286, 303B. See further 306D. See also Gidrxslme Shipping v Tantomar-Transportes Maritimos [1995] 1  WLR  299, in which Colman J  made disclosure order under s 37 to aid in execution of an arbitration award, even where there was no freezing injunction; Motorola Credit Corporation v Uzan [2003] EWCA Civ 752 and, most recently JSC VTB Bank v Skurikhin [2012] EWHC 3116 (Comm) (Gloster J). 63 [1989] Ch 286 at 303E-F. 64 Maclaine and Cruz City 1 Mauritius Holdings v Unitech Ltd [2013] EWHC 1323 (Comm). 65 [2011] EWHC 843 in particular, paras 26 and 38. 66 See further Ch 7.4 above. Note the Australian case of Idoport described at Ch 7.4, fn 51.

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The Courts’ jurisdiction to make whatever ancillary order is necessary to make a freezing order effective was affirmed in JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev.67 Here the respondent’s assets were subject to a freezing order which required him to provide a schedule of assets. The respondent disclosed that he was one of a class of discretionary beneficiaries under various New Zealand based trusts. The applicants sought and obtained an order that the respondent provide more information regarding these trusts in order to enable them to better understand the nature of the respondent’s interest in the trusts and inform their decision as to whether to seek a freezing order against the trusts’ assets. The respondent appealed arguing (amongst other things) that the Court had no power to make such an order. Citing Bekhor, Lewison LJ (with whom Christopher Clarke LJ and Arden LJ agreed) dismissed the appeal holding that ‘the jurisdiction to make a freezing order also carries with it the power to make whatever ancillary orders are necessary to make the freezing order effective’.68 In a later decision in the same dispute (JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev69) the Court of Appeal upheld an order preventing Mr. Pugachev from leaving the UK to attend a court appointment in France on the ground that he would make use of the opportunity to flee the jurisdiction, which could frustrate his compliance with various disclosure and freezing orders obtained against him. The Court had previously ordered that Mr. Pugachev give up his passport in support of the Liquidator’s efforts to seek information from him.

15.8  SOLICITORS AS OFFICERS OF THE COURT As noted above, the court has inherent jurisdiction over solicitors as officers of the court. This was one of the two grounds for the orders made in JSC BTA v Solodchenko, discussed above, relying upon ICIC (Overseas) v Adham, where the point had been conceded.70 This can be used to compel a solicitor to disclose documents or information pertaining to his client. Whilst confidential communications between a lawyer in his professional capacity and his client are privileged, that privilege does not extend to all information which a lawyer knows about his client.

15.9  SECTION 236 OF THE INSOLVENCY ACT 1986 Where a company has entered administration or liquidation, the office holder has a number of powers, including the power under section 236 of the Insolvency Act 67 [2015] EWCA Civ 139 at para 47. 68 Para 47. Lewison LJ also based his decision on the courts’ power under CPR 25.1(1)(g) to make an order that the respondent provide information about property or assets which was or might be the subject of an application for a freezing injunction. 69 [2015] EWCA Civ 1108 70 Note that the later Ablyazov case [2012] EWHC 1252 proceeds on the basis that the order sought against solicitors was under Senior Courts Act 1981, s 37, it having been conceded that it would not be appropriate to make an order under the inherent jurisdiction over solicitors if there was no power under that provision (para 14).

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1986 to apply to court for the examination of ‘any person whom the court thinks capable of giving information concerning the promotion, formation, business, dealings, affairs or property of the company’. A  similar power has existed in various forms since the nineteenth century.71 The power under section 236 is very broad in its terms. The court has therefore sought to exercise its discretion to ensure that it is not used oppressively or unfairly. At one stage, a so-called ‘Rubicon’ test prevailed, under which the court would be pre-disposed (subject to special grounds to the contrary) against granting relief if the evidence showed that the purpose of seeking an examination was to achieve an advantage beyond that available to the ordinary litigant in litigation which had already commenced or which it had been definitely decided to commence.72 This test was subsequently rejected.73 Since then, the House of Lords confirmed that section 236 is not limited to reconstituting the knowledge of the company, but extends to all documents that the officer holder reasonably requires to perform his functions.74 In so doing, the House of Lords recognised that the power was an extraordinary one and that the court should only exercise its discretion after a careful balancing exercise. There should be no ‘unnecessary and unreasonable burden’ on the person required to provide disclosure and the order should not be oppressive.75 Although the jurisdiction exists, the court ‘may hesitate’ before ordering disclosure against a third party, ie someone who was not an officer of the company.76 Where applicable, this power enables the office holders to investigate potential claims and to obtain information without the need for Norwich Pharmacal relief. This may be particularly significant in cases involving the so-called ‘missing piece of the jigsaw’ but may assist even in revealing the identity of a potential wrongdoer.

15.10  PROPRIETARY ORDERS In cases involving a leak of confidential documents, an applicant may be able to assert proprietary rights over the documents and may by this means be able to reveal the identity of the source. This may be so, in particular, if the document is believed to bear marks or if forensic examination may be reveal the identity.77 It would apply both to the original document and to any copy made using reproduction facilities belonging to the applicant. As regards any copy made privately, this would typically infringe copyright and could give rise to a right to recover the document. This approach succeeded in the Court of Appeal in

71 72 73 74 75 76 77

The equivalent in the context of personal bankruptcy is s 366. In re Castle New Homes Ltd [1979] 1 WLR 1075 (see 1089 G). Cloverbay Ltd v BCCI [1991] AC 90. British & Commonwealth Holdings Plc (Joint Administrators) v Spicer & Oppenheim [1993] AC 426. [1993] AC 426 at 439D-H. [1993] AC 426 at 440H. Forensic examination appears to have resulted in identification in the Guardian Newspapers case in the House of Lords [1985] AC 339. There it appears that erasure of the marginal markings had been sufficient to establish that the copy had been made on a particular copier, leading to the identification of the source, who ultimately pleaded guilty to an offence under the Official Secrets Act 1911.

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Secretary of State for Defence v Guardian Newspapers, leading to an order to disclose the document.78 The House of Lords dealt only (retrospectively) with section 10 of the Contempt of Court Act 1981.

15.11 JOINDER A final possibility is of course joining the respondent as a substantive defendant since any party is ordinarily required to give disclosure of documents relevant to all issues in the proceedings. No party can be joined simply for the purposes of providing disclosure.79 However, depending upon the factual scenario, there may be little to distinguish between sufficient involvement for Norwich Pharmacal purposes and the factual basis required to bring a substantive claim. Moreover, where pre-action disclosure is available under CPR 31.16, this effectively reduces the threshold further.

15.12  BANKERS’ BOOKS EVIDENCE ACT 1879 One provision that is mentioned in many of the cases, particularly those dealing with Bankers Trust relief, is the Bankers’ Books Evidence Act 1879.80 Section 7 permits third party disclosure of entries in a banker’s books relating to accounts held by the parties to the litigation and (exceptionally) relating to accounts held by non-parties.81 Banker’s books are defined fairly broadly, including ledgers, day books, cash books, account books and other records used in the ordinary business of the bank, though case law has confirmed that it does not extend to letters in a correspondence file,82 cleared cheques and credit slips in the bank’s possession,83 notes of interviews or conversations or other internal memoranda.84

15.13  UNEXPLAINED WEALTH ORDER (UWO) On 31 January 2018 enforcement authorities were given the power to apply to the High Court for UWOs. These enforcement authorities are the National Crime Agency, Her Majesty’s Revenue and Customs, the Financial Conduct Authority, the Serious Fraud Office and the Crown Prosecution Service. At first blush, these powers appear to be more relevant to a criminal law process. However, the UWOs are in fact clearly civil in ambit and are intended to be utilised as an investigation tool for the enforcement authorities with the object being ultimately 78 [1984] Ch 156. 79 See Norwich Pharmacal itself. Also Unilever v Chefaro (CA) [1994] FSR 135. 80 The Act was first passed in 1876 and re-enacted in modified form in 1879. 81 Howard v Beall (1889) 23 QBD 1. See also D B Deniz Nakliyati Tas v Yugopetrol [1992] 1 WLR 437 and South Staffordshire Tramways Co v Ebbsmith [1895] 2 QB 669 (CA) as regards the applicable test in such cases. 82 R v Dadson [1983] 77 Cr App R 91. 83 Williams v Williams [1988] QB 161 (CA). 84 Re Howglen [2001] 1 All ER 376.

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to freeze and then confiscate assets acquired with the proceeds of crime. These orders can be sought at the request of foreign governments who are looking to repatriate funds belonging to the state which have been misappropriated by corrupt government officials. The statutory basis for UWOs is contained in the Criminal Finances Act 2017 (CFA  2017). Section B1 of the CFA  2017 amends Chapter 2 of Part 8 of the Proceeds of Crime Act 2002 (POCA). Section 362B POCA now sets out the test that has to be satisfied in any UWO application to the High Court for a UWO. This test has three parts: (i) the High Court must be satisfied that there is reasonable cause to believe that the respondent holds the identified property and that the value of that property is greater than £50,000; (ii) the High Court must be satisfied that there are reasonable grounds for suspecting that the known sources of the respondents’ lawful income would have been insufficient to obtain the identified property; and (iii) the High Court must be satisfied that the respondent is either a politically exposed person, or that there are reasonable grounds for suspecting the respondent or a person connected with them is or has been involved in serious crime whether in the UK or elsewhere. With regard to the first limb of the test in Section 362B POCA  2002, joint ownership of the property or whether the property was obtained before the introduction of UWOs are irrelevant as the UWO is granted on the basis of what is currently owned. With regard to the second limb of this test, mortgages and other forms of security are to be considered when examining whether a person lawfully obtained income sufficient to purchase the property as is the market value of the property When examining whether the income is lawfully obtained or not, the key is whether the income was lawfully obtained under the laws of the country where the income arose. Further the known sources of income are to be ascertained from sources that can be reasonably identified at the date the application for the UWO was made. Finally, under the third limb of the test when examining shared ownership of a property, the Court should regard the respondent as having absolute ownership over its share of the property the order relates to. Provided these criteria are met, the High Court has the power, but not a duty, to grant the UWO. When a UWO is granted, it will require the respondent to provide a statement of information and may also ask for supporting evidence in the form of documents. Section 362A(6) POCA further states that the respondent must comply with the requirements imposed by the UWO within a period of time which the court specifies (the ‘Response Period’). At the end of the Response Period, if the respondent complies or purports to comply with the requirements imposed by the UWO and there is no interim freezing order in effect in relation to the property identified in the order, then under section 362D(5), the enforcement authority may determine what, if any, enforcement or investigatory proceedings it considers ought to be taken in relation to the property. These are defined in Section 362D(8) POCA as: (i) confiscation proceedings (Part 2 or 4, POCA 2002), (ii) recovery for unlawful conduct proceeds (Part 5 POCA 2002); or (iii) the issuing of a production order (Chapter 2 of Part 8 POCA 2002). There are a number of consequences that the respondent may face if they fail to reply or reply accurately to the UWO within the specified Response Period without providing a reasonable excuse: (i) under section 362C(2)  POCA the 247

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property will be presumed to be recoverable for the purposes of the proceedings commenced in relation to the UWO unless the contrary is shown; and (ii) section 362E POCA provides that if the respondent purports to comply with the UWO and in doing so recklessly or knowingly makes a false or misleading statement in regard to the identified property, they are committing an offence that may result in a custodial sentence of up to two years’ imprisonment or a fine or both. In support of UWOs, the High Court also has the discretion to grant an interim freezing order over the identified property under section 362J POCA. It is expected that such freezing orders will be granted where there is a risk of dissipation of the property in order to frustrate any enforcement proceedings that may flow from the investigation. An interim freezing order will remain in place during the Response Period, at the end of which: (i) If the respondent complies or purports to comply with the requirements imposed by the order, then under section 362D(3) POCA the enforcement authority must determine what investigatory proceedings, if any, it considers ought to be taken in relation to the property within the period of 60 days starting with the day of compliance. In addition, under section 362K(6)(a) POCA, the enforcement authority will then have a period of 48 hours beginning with the day after the 60-day period ends to make a relevant application in relation to the property concerned. Section 362K(11)  POCA defines a relevant application as being an application for: (a) a restraint order under section 41 or 190  POCA; (b) a property freezing order; or (c) an interim receiving order. However, if the enforcement authority determines that no further enforcement or investigatory proceedings ought to be taken in relation to the property, then under section 362D(4) POCA it must notify the High Court of that fact as soon as reasonably practicable (and in any event before the end of the 60 days period mentioned above). (ii) If the respondent fails to comply within the specified response period, then in addition to the consequences they may face which are listed above, the enforcement authority will under section 362K(6)(b) POCA also have 48 hours to make a relevant application as defined by section 362K(11) POCA. The interim freezing order may at any time be varied or discharged by the High Court under section 362K(1) POCA, but section 362K(2) POCA specifies that the latter must be discharged in any of the following three scenarios: (i) where the applicable 48 hour period has ended and a relevant application has not been made before the end of that period in relation to the property concerned (ii) where a relevant application has been made before the end of the applicable 48 hours period in relation to the property concerned and proceedings on the application (including any on appeal) have been determined or otherwise disposed of, (iii) the court has received a notification in relation to the property concerned under section 362D(4) POCA. Where a UWO has been granted in relation to property outside of the United Kingdom, and the Court would have otherwise granted an interim freezing order believing that there was a risk the identified property would be dissipated, 248

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requests for assistance may be made by the Secretary of State to the government of the relevant country seeking that they prevent the dealing with or dissipation of the identified asset. At the time of writing, these orders are starting to be deployed, but it will be some time before their full scope and effect will be fully explored.

15.14 DATA PROTECTION ACT 2018 – SUBJECT ACCESS REQUESTS On 25 May 2018, the General Data Protection Regulation took effect, accompanied in the UK by the Data Protection Act 2018 (DPA), which superseded the Data Protection Act 1998. Under the DPA, individuals have a right to access their personal data, and other information relating to the processing of their personal data. Individuals can exercise this right by making what is commonly known as a subject access request (SAR). Responsibility for complying with a SAR lies with the ‘controller’ – the natural or legal person, public authority, agency or other body which determines the purposes and means of the processing of personal data. The breadth of information that can be obtained via a SAR is narrower than that of disclosure in litigation, because it is confined to the individual’s personal data and information relating to their personal data. However, SARs have been weaponised by individual litigants as a means of obtaining pre-action disclosure and/or to cause inconvenience to the relevant controller. Depending on the circumstances, a SAR can be onerous and expensive to deal with, and this is particularly so where litigation involving the individual is either ongoing or on the horizon. Accordingly, satellite disputes are occasionally fought over whether any SAR has been correctly complied with, and conversely whether the individual is abusing the DPA regime in the sense of pursuing a form of disclosure through the back door (and at the same time causing disruption and cost for the controller). There are a number of exemptions to the right of access, set out in Schedule 2 of the DPA, which may apply. One example is where the relevant personal data consists of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings or information in respect of which a duty of confidentiality is owed by a professional legal adviser to a client of the adviser (paragraph 19, Schedule 2 DPA). However, there are several other potential exemptions which could be invoked, and which would apply more broadly. Firstly, personal data processed for the purposes of management forecasting or management planning in relation to a business or other activity are exempt to the extent to which disclosure would be likely to prejudice the conduct of that business or activity concerned (paragraph  22, Schedule  2  DPA). Where there is an ongoing dispute, and its impact is to be considered by the data controller as part of a ‘management planning’ exercise, it could be argued that the exemption is triggered because such disclosure (to a litigation opponent) could prejudice the conduct of the data controller’s business. However, at the time of writing, this line of thinking has not been tested in the courts. 249

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Where the individual wishes to challenge the controller’s compliance with a SAR, there are two procedures available. First, the individual may make a formal complaint to the Information Commissioner’s Office (ICO). The ICO may ask the controller to provide an explanation as to how it has sought to rely on any relevant exemptions and review the controller’s response to the SAR. The individual concerned can ask the ICO to review its own decision. Concurrently, however, the individual can take a litigation route. Under Article 79 of GDPR: ‘[w]ithout prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to  Article  77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.’

In addition, under paragraph 167(2) of the DPA ‘A court may make an order for the purposes of securing compliance with the data protection legislation.’ Such proceedings are initiated pursuant to Part 8 of the CPR. Previously these claims would have been brought under section 7 of the Data Protection Act 1998. To determine whether a controller has complied with a SAR, in the event that an individual brings an application, broadly the court: (a) considers whether proportionate searches have been conducted; (b) considers whether any exemptions claimed should properly apply; (c) examines the controller’s decisions around omitting material, and (d) looks to establish that the controller has approached its decision-making in a balanced and fair manner. Ultimately, the court exercises a discretion as to whether to make an order in the sense that there may be good reason not to make an order, including taking into account whether the proceedings are an abuse of process, and/or whether the SAR is made for an improper purpose. The case of Guriev v Community Safety Development (UK) Ltd 85 explores the extent to which the court will consider the ’purpose’ for which the SAR is made, in Guriev, Warby J held ‘in general terms… the court considering an application under s. 7(9) should not inquire into or permit investigation of the purpose for which a SAR has been made’. Nonetheless, in that case, the court found that the controller’s own client had sent threatening correspondence and conducted a misleading public relations strategy which meant that the claimant individual did not have a dominant ‘improper purpose’ in seeking to establish how their data was being processed. In addition to the improper purpose angle, the court has a general power under CPR 3.4(2)(b) to strike out a statement of case on the basis of an abuse of process, The term ‘abuse of the court’s process’ is not defined under the CPR, but has been developed in a number of cases. It includes using the court process or a purpose or in a way which is significantly different from [its] ordinary and

85 [2016] EWHC 643 (QB).

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proper use’86 , or misusing the court’s process to achieve something not properly available in the proceedings. The categories of abuse of process are many and are not closed. One such category which has received judicial recognition is the existence of a collateral purpose. The leading authority is the Court of Appeal decisions in Broxton v McClelland and Anor,87 in which the relevant considerations are set out as follows: (a) The institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse of process. The court’s processes must be misused in seeking to obtain something not properly available in the course of properly conducted proceedings. There are two distinct categories of misuse: (i) the achievement of a collateral advantage beyond the proper scope of the action; and (ii) the conduct of the proceedings themselves with a view not so much as to vindicate a right, but rather in a manner designed to cause the defendant expense, harassment, commercial prejudice or the like, beyond what is expected in the course of properly conducted litigation. (b) Only in clear and obvious cases is it appropriate on preliminary application to strike out proceedings as an abuse so as to prevent a claimant from bringing an apparently proper cause of action to trial. Motive and intention as such are not relevant save only where malice is a relevant plea. The fact that a party who asserted a legal right was activated by feelings of personal animosity, vindictiveness or genera! antagonism towards his opponent is not relevant. The question of what constitutes a ‘collateral advantage’ was addressed in Goldsmith v Sperrings Ltd88 When a litigant sues to redress a grievance, no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. Conversely, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. Therefore, a litigant with a genuine cause of action, which he would wish to pursue in any event, would not be debarred (by stay or striking out) from proceedings because he had an ulterior purpose in mind as a desired by-product of the litigation.

86 Attorney General v Barker [2000] IFLR 759. 87 [1995] EMLR 485. 88 [1977] 1 WLR 478 (CA).

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Challenges to Claims In Elliott v Lloyds TSB  Bank Plc,89 it was held that if a SAR is made for a collateral purpose, and but for that collateral purpose the request would not have been made, then the controller to whom the request is made would not be obliged to respond to the request. The controller would only be obliged to respond where the ‘but for’ reason for making the request was to ensure compliance with data protection law. In Ezsias v Welsh Ministers,90 the court found that using the provisions of the DPA 1998 to seek disclosure of documents generated as the result of the applicant’s own complaint, in order to further a legal claim by the Applicant against a third party is a legal abuse. The breadth of the exemptions under the DPA  1998, and the impact of a potential collateral purpose for a SAR was also examined in Dawson-Damer v Taylor Wessing LLP. The case considered how widely the privilege exemption (then paragraph 10 of Schedule 7 DPA 1998) should be construed. The claimant was the beneficiary of a Bahamian law discretionary trust represented by Taylor Wessing. She served a SAR on Taylor Wessing in the UK, the purpose of which was to obtain information for proceedings in the Bahamas in which she was challenging the conduct of the trustees. At first instance,91 HHJ Behrens QC was held that it was not the purpose of section 7 of the DPA 1998 to enable the individual to obtain discovery of documents that might assist in litigation or complaints against third parties (particularly as on the facts, the ongoing litigation was taking place in the Bahamas where the rules of privilege were said to be different to those in England). The privilege exemption was interpreted purposively to protect the individual’s right to privacy and accuracy of the information held by the controller. It was also observed that it was not a purpose of the legislation to provide the individual with information or disclosure of documents which might assist the individual in litigation against the controller or another person, whether in England or abroad and where this was found to be the ‘real purpose’ for making a SAR, it was not a ‘proper purpose’. This first instance decision upheld Taylor Wessing’s decision to refuse to answer the SAR on privilege grounds. On appeal, the Court of Appeal reversed the earlier decision Dawson-Daner v Taylor Wessing LLP,92 holding that the court’s discretion should not be limited based on the underlying purpose of the SAR. The Court of Appeal concluded that it would be ‘odd’ to conclude that the sole purpose of a SAR must be to verify the accuracy of the individual’s personal data. Such a ‘no other purpose’ rule would have undesirable consequences, such as non-compliance by controllers on the basis of the individual having an ulterior motive for making the SAR, together with satellite litigation to determine the purpose of a SAR. The mere holding of a collateral purpose was not of itself an abuse.

89 90 91 92

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Keith Martin Elliott, Lloyds TSB Bank PLC, 24 April 2012, HH Judge Behrens (unreported). [2007] EWHC B15 (QB); [2008] EWCA Civ 874. [2016] 1 WLR 28. [2017] EWCA Civ 74.

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Guriev provides further support for this approach, in particular, at paragraph 72 of Guriev, Warby J had ‘difficulty… with the notion that the use of a SAR for the purposes of obtaining early access to information that might otherwise be obtained via disclosure in pending or contemplated litigation is inherently improper.’ In light of the Court of Appeal’s decision in Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd and Deer v Oxford University93, the ‘absence of a legitimate reason’ for a SAR may be relevant to whether the court orders the controller to comply with that SAR, even though a collateral purpose of assisting in litigation was held not to be an absolute bar. Further, a reduction in the costs awarded to an individual may also be ordered where SARs are ‘essentially antagonistic’ or amount to ‘low level attritional warfare’ against the controller. A  further important point was considered in Taylor Wessing which has an impact on a beneficiary’s ability to obtain access to trust information where the trust is based overseas. The underlying issue was whether a beneficiary to a Bahamian trust could seek information from English solicitors who asserted a claim to privilege based on ongoing litigation in the Bahamas between the individual and the client of Taylor Wessing. The Court of Appeal held that the privilege exemption only applies to documents which are privileged arising from UK proceedings, which seems a surprising result. Nonetheless, this represents a serious gap in the privilege exemption and may yet generate significant SARrelated activity from beneficiaries under foreign law trusts.

93 [2017] EWCA Civ 121.

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16

International arbitration

This chapter examines the interplay between Norwich Pharmacal relief and the field of international arbitration. Given the increasing rise in the prominence of international arbitration, it is important to address this issue, even though there will inevitably be limits on the connections between the two fields. The popularity of international arbitration is now undisputed given the key drivers of, first, the scope of the mutual recognition and enforcement and, secondly, neutrality. Moreover, the boom in investment in the frontier and emerging markets has triggered a rise in the number of fraud and corruption related issues which practitioners see being arbitrated.1 This is despite the fact that, ordinarily, the claimant in a fraud case would be unlikely to favour international arbitration as their preferred forum. There are many reasons for this: limited procedural and coercive powers, narrow range of interim remedies (only available from the Tribunal against the parties to the arbitration agreement), narrow disclosure and restrictions on the gathering of evidence from non-parties.2

16.1 BACKGROUND – LIMITS ON DISCLOSURE IN SUPPORT OF ARBITRATION The conventional mechanisms for disclosure in High Court proceedings, including the possibility of third party disclosure under CPR  31.17, do not of course apply in an arbitration context. However, there are helpful provisions in the Arbitration Act 1996 which seek in certain respects to give the courts the same powers as they would possess in relation to court proceedings. The material parts of section 43, dealing with securing the attendance of witnesses, are as follows (emphasis added):3 1

2 3

Transparency International publish their Annual Corruption Perceptions Index which seeks to gauge perceived levels of public sector corruption. The Index ranks 183 countries around the world, with 0 being the least corrupt and 183 being the most. For example, DRC is ranked 168, Ukraine 152 and Russia 143. Agreements containing arbitration clauses are widespread in these countries. See Bushell, Bharucha and Balsys Austrian Yearbook on International Arbitration 2012, at page 325. Both ss 43 and 44 (addressed below) apply to arbitrations having their seat in England and Wales or Northern Ireland. They also apply in support of arbitral proceedings with an overseas seat subject to the further requirement that the court may refuse relief if it considers that the overseas seat makes such relief inappropriate: s 2(3).

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Chapter 16  International arbitration ‘(1) A  party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give testimony or to produce documents or other material evidence (2) This may only be done with the permission of the tribunal or the agreement of the other parties.’

In BNP Paribas v Deloitte & Touche LLP,4 the judge held that section 43, while giving the court power to compel a witness to attend and to bring evidence (akin to a witness summons or subpoena duces tecum), did not give the power to order general disclosure against a third party, as is available under CPR  31.17. Mr Justice Morison observed: ‘[CPR  31.17] is not available in an arbitration, as section 43 is dealing with production of documents in evidence, and not disclosure … under that procedure it is not permissible to go ‘document hunting’ with a view to trawling through documents to see what turns up.’

The same issue arose in Tajik Aluminium Plant v Hydro Aluminium,5 where the Court of Appeal reiterated the decision in BNP  Paribas. The Court of Appeal confirmed that the subpoena duces tecum route to obtaining documents from a third party would be available and recognised (as described in more detail in Chapter 15.3) that each document did not need to be identified individually, though sufficiently specific descriptions would be required. The court rejected the submission that there was any broader power under section 43 to order disclosure as against a third party, even with encouragement from the Tribunal. In Assimina Maritime Ltd v Pakistan Shipping Corporation,6 the court had also declined to allow section 44 to be used as a vehicle for obtaining general disclosure against a third party for use in arbitral proceedings. This section deals with ‘orders for inspection, photographing, preservation, custody or detention of property which is the subject of the proceedings’. Mr Justice Colman concluded that this did not extend to allowing disclosure. He said: ‘It is, however, to be kept in mind that section 44 cannot be used as a means of obtaining ordinary disclosure of documents from a non-party … it is only where it can be shown that a question arises in relation to a particular document or documents of a non-party which need to be inspected or photocopied or preserved that an order under this section can be made.’ As explained in Chapter 15, one of the recommendations to emerge from Lord Woolf’s civil procedure reforms was the incorporation of a pre-action disclosure regime (CPR 31.16). The enabling provision, section 33 (2) of the Senior Courts Act 1981 (by amendment), does not apply to arbitral proceedings. This issue was examined in EDO Corp v Ultra Electronics Ltd,7 where the court confirmed that the jurisdiction was confined to circumstances where the applicant and the

4 [2004] 1 CLC 530. 5 [2005] EWCA 1218. 6 [2004] EWHC 3005 (Comm). 7 [2009] EWHC 682 (Ch).

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respondent were likely to be parties to legal proceedings in the High Court. The court reasoned that, had it been the intention of the legislature to grant similar assistance to those who were likely to be parties to arbitral proceedings, it would have made express provision to that effect. Finally, there is one note of caution concerning the nature of the arbitration process. In a High Court context, the perceived need for pre-action disclosure arises principally from the prospect that proceedings would otherwise be summarily dismissed on the basis that the case is not sufficiently arguable. In general, there is perhaps less prospect of such a course being taken on a summary basis in arbitration without any opportunity to seek disclosure under the applicable procedural rules. Whilst not strictly ‘pre-action’, since the arbitration would be in progress, the effect may be substantially the same as pre-action disclosure in a High Court context.

16.2  NORWICH PHARMACAL RELIEF IN AN ARBITRATION Against this background, perhaps the first question to arise is whether Norwich Pharmacal relief could be sought from an arbitral tribunal and, if so, whether the applicant is obliged to pursue that route. This is an area which has yet to be explored in the courts and where information in the international arbitration circles is hard to come by.8 For example, a victim of fraud might wish to seek disclosure from a third party (for example about the victim’s possible claims against the unknown intended defendant) in circumstances where the victim and the third party respondent are parties to an arbitration agreement. The applicant might alternatively wish to seek Bankers Trust relief. There may be scenarios in which the two parties could well have a relevant arbitration agreement. For example, they might have a broader relationship and might have agreed to refer any disputes arising during that relationship to arbitration. Even where the relationship is more narrowly confined, the arbitration clause might be sufficiently broadly drafted. A commonly seen form of words used is as follows: ‘Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration.’

The words ‘arising out of’ and ‘in connection with’ have previously been held to include non-contractual claims.9 Thus, much will no doubt turn on the nature 8

9

Recently, in Benhurst Finance v Colliac QBD 2018, the respondent to an application for a Norwich Pharmacal order contended that the applicants had a more suitable route to relief by asking for disclosure through an ongoing Swiss arbitration if he was joined. However, the court rejected this argument. This was on the basis the Evidence (Proceedings in Other Jurisdictions) Act 1975 which permits a foreign court to request assistance from the English courts, does not extend to a request made by a private arbitrator. In addition, s  44 of the Arbitration Act 1996 does not permit orders against a non-party to an arbitration agreement. Fiona Trust v Privalov [2007]  UKHL  40, para  13; Ashville Investments v Elmer Contractors [1989] QB 488.

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of the connection between the information being requested and the underlying contract. It may be at least arguable that an application for Norwich Pharmacal relief might be caught by such an arbitration clause. Provided the arbitration clause is sufficiently broad, there would seem to be no reason in principle why the question whether relief should be granted could not be referred to arbitration. If the traditional approach is followed then Norwich Pharmacal (or Bankers Trust) relief is based upon a substantive cause of action recognised by English law (and many other common law jurisdictions). Under English law at least, arbitration agreements can extend to non-contractual disputes. Section 6(1) of the 1996 Act defines an arbitration agreement as ‘an agreement to submit to arbitration present or future disputes (whether they are contractual or not)’ and section 82 defines ‘dispute’ as including ‘any difference’. The counter-argument would be that, though often termed a cause of action, the relief is really a procedural mechanism and thus akin to disclosure under (say) CPR 31.17. Even so, there would be no reason in principle why a dispute or difference over the application of procedural provisions should not be referred to arbitration, provided that the arbitration clause is sufficiently broad to cover such possibilities. One issue (as mentioned in Chapter 14) would be whether relief could be granted under the applicable rules for determining the governing substantive law. The position might be particularly tenuous where there is an overseas Tribunal (with a seat, say, in Switzerland under a Swiss law contract between a German entity and an English entity). It is not immediately clear why English rules on third party disclosure (whether characterised as procedural or substantive) should govern. A respondent wishing to resist an application for relief could seek to argue that such relief amounts to ‘interim relief’ (relying on the authorities referred to in Chapter 14.1.1). Arbitral tribunals have no power to award interim injunctions unless conferred by the express agreement of the parties. Even if it could be established that the central relief was ‘final’, the same issue would arise in connection with any gagging order sought, for example, as part of a Bankers Trust process. There is less prospect that such an order would be regarded as final. In any event, section 44(1) and (2)(e) enable the courts to grant interim injunctive relief in support of arbitral proceedings. In urgent cases, the court may award an interim injunction under section 44(3), without the permission of the Tribunal or the agreement of the parties, provided that this is ‘necessary for the purpose of preserving evidence or assets’. Such an application can be made by a ‘proposed party’ before commencement of the arbitral process. Complications such as these tend to suggest that, where possible, it may be more straightforward to apply directly to the courts, particularly in cases of urgency such as in a typical Bankers Trust application. This may also assist in relation to third party confidentiality. Whilst an arbitral order for disclosure would, like a court order, generally be expected to provide lawful excuse for what would otherwise be a breach of confidence, in view of the complexities described above, a respondent may well prefer that the issue is determined by the court. The court may also have more flexible means at its disposal to ensure that broader public interest issues are addressed as part of the discretionary exercise. 258

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16.3 NORWICH PHARMACAL RELIEF IN SUPPORT OF AN ARBITRATION Another question that might arise is whether Norwich Pharmacal relief can be obtained from the court where the substantive wrong is likely to be the subject of arbitration. This scenario might exist, for example, where there is a range of potential wrongdoers, with all of whom the applicant has arbitration agreements, such as a group of employees or a network of suppliers. The applicant might suspect one of that group and might believe that a third party (with whom there is no arbitration agreement) is in a position to identify the actual wrongdoer. It has been seen, in Chapter 7.1, that Norwich Pharmacal relief is available not only where the applicant intends to bring legal proceedings, but also for a number of other legitimate objectives. The leading authority, British Steel v Granada, is a landmark decision of the House of Lords in which relief was granted requiring a broadcaster to reveal a source, even though the applicant did not necessarily intend to bring legal proceedings. The prospect of disciplining an employee would suffice. The House of Lords held that relief could be granted where the applicant intended to seek redress ‘by court action or otherwise’. Thus there would seem no obstacle in principle to relief being granted in support of arbitration proceedings. The fact that the substantive proceedings would be by arbitration might be relevant on discretion but, at least where relief would be the best or only available means to identify the wrongdoer, the discretion is likely to be exercised in favour of relief. Whilst the courts are likely to be hesitant to trespass into areas that might be said to overlap with a prospective arbitration, that argument will carry little weight where there could be no arbitration without the relief being granted. Suppose instead that an applicant seeks Norwich Pharmacal relief against a third party in a ‘missing piece of the jigsaw’ context where the intended (but incomplete) claim against a known party could only be brought by arbitration. It might be thought that, in the exercise of its discretion, the court would require extremely good reasons to intervene rather than leaving the parties to the arbitration that was their chosen method of dispute resolution. That argument would seem to be particularly strong if the arbitral proceedings are capable of being initiated since it will be difficult to resist the conclusion that any constraints upon disclosure result from the parties’ choice of process. However, the position might be otherwise in a true ‘missing piece’ scenario where a claim cannot otherwise be initiated. For reasons given in the preceding section, that scenario may be rare but may arise where, for example, there are professional constraints upon alleging fraud. Even then, it is likely that an exceptional case will be required before the court would intervene and thereby indirectly undermine the parties’ choice of arbitration. Finally, it has been seen in Chapter 14 that the statutory regime for seeking evidence for use in criminal proceedings abroad has been held, in the Omar decision in the Court of Appeal, to act as a bar to Norwich Pharmacal relief in connection with foreign criminal proceedings. Such a bar could apply also in the context of foreign civil proceedings, a subject addressed at some length in Chapter 14. If so, it is likely that the same logic would prevent relief for the purposes of any arbitration with its seat outside the UK, even in cases where such 259

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relief might otherwise be available. At least to the extent that such an outcome would prevent an applicant from discovering the identity of the person who has wronged him, it is to be hoped that the logic of the Court of Appeal’s decision in Omar would not be extended in this way.

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Where next for Norwich Pharmacal?

The Norwich Pharmacal jurisdiction enjoyed something of a ‘renaissance’ in the five or so years following, in particular, Mohamed.1 That case completed the transformation towards a flexible form of relief shaped less by its origins and more by the need to have a valuable and mature remedy in appropriate cases. However, in the five years or so since the First Edition of this book was published we have seen cases which both narrow and expand the scope of the jurisdiction. Such vacillation is possible because of the large number of first instance decisions in which some judges express views which can be seen as redefining the parameters – made possible by the relative absence of key appellate authority other than Norwich Pharmacal itself (and several Privy Council authorities). This chapter provides some short reflections on the recent developments as well as to the future. In the First Edition of this work, four evolving themes seemed prominent during the ‘renaissance period.’ First, there was increased demand for Norwich Pharmacal relief driven by the internet and by social media. Secondly, the Courts had shown willingness to apply Norwich Pharmacal relief in relation to information held overseas and in respect of respondents based abroad. Thirdly, there had been a greater tendency to police the use of Norwich Pharmacal orders. Finally, there was an emphasis on the usefulness of Norwich Pharmacal relief on the fight against international fraud. It was noted that these themes would likely remain important in shaping the future of this relief over the coming years. This has been entirely borne out.

17.1  THE INTERNET AND SOCIAL MEDIA The explosion in the use of instantaneous messaging and global social networking sites has naturally triggered a significant demand for regulating and dealing with potential abuses of this form of communication. The problem is generally the same: defamatory, derogatory, abusive, invasive material is being published over the internet to a potentially limitless audience and, in the hope of creating an 1

In 2009, Charles Hollander QC described recent developments and the Mohamed case in particular as having given Norwich Pharmacal ‘wings’: 2009 (28) CJQ 458.

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immunity from the consequences, a false identity is created by the author. There have been numerous reported instances of successful applications being made by the victims of such publications requiring the ‘host’ internet site to reveal the identity of the person who registered the user name or other information likely to lead to the true identity of the alleged wrongdoer. In the Cartier decision we have also seen a clear indication that even where legislative intervention has occurred, the Norwich Pharmacal jurisdiction can be influential around the edges as it were, where the legislation has not made provision. In Cartier, the intellectual property rights holders were ordered to pay the costs incurred by ISPs of removing infringing websites for their platforms. For the most part, these sorts of situations are straightforward (especially if the respondent is domiciled within the jurisdiction) and present few legal challenges or scope for controversy. Many internet service providers appear to take a neutral stance, though they require the applicant to obtain a court order to provide protection against confidentiality and data protection concerns. In the future, it may well be that internet service providers will explore ways of reducing their exposure to such applications, particularly given concerns as to costs. Perhaps a simplified process for such cases may be considered further in the future. However, it is also clear that social media and technology continued to evolve. There is now a vast array of alternative systems of messaging media other than email (Twitter, Whatsapp and so on). It may not be the case that one hat fits all, and it is clear that one of the drivers for alternatives to email is the ability to delete messages ‘forever’. As long as such fraud-friendly trends proliferate, the Norwich Pharmacal jurisdiction will be called upon to adapt as appropriate.

17.2  EXTRA-TERRITORIAL REACH Chapter 14 considers the evolving case law in which Norwich Pharmacal relief has been granted against respondents located abroad. The limits of the remedy in this context continue to merit further consideration, particularly where, the relief is sought for use in support of foreign proceedings. In particular, the position of a claimant seeking relief but without any clear view as to how or where to proceed with the anticipated information, remains unclear. Similarly so where the claimant can justifiably argue that it is ‘“information’ rather than ‘evidence’ which is being sought. It was also observed that the Mackinnon rule restricting the relief to documents or information located within the jurisdiction may now be outdated in light of considerable advances in technology where a respondent in England can readily access information it may hold on its server overseas. It seems likely that this is an area that will see further development and refinement of the analysis. Some aspects, such as granting relief against a respondent who is domiciled abroad may be thought controversial from a legal perspective, even if they provide useful relief to the applicant. One problem, often, is that the respondent is not in a position (or chooses not) to contest the application (for a variety of possible reasons, including cost) and in such circumstances the basis for relief is inevitably given less scrutiny. In the meantime, the legal analysis faces the 262

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difficulty that, where they exist, international arrangements have not been designed with this form of relief in mind. Individual jurisdictions are of course developing their own answers but will face similar issues regarding extraterritorial reach. Such issues exist in many scenarios but are more significant where the respondent is a third party, rather than a substantive defendant to a more conventional claim. In the First Edition of this book, it was suggested that, over the coming years, the extra-territorial reach of orders from English courts is more likely to be fettered than to expand. In one sense, this is true given the apparent narrowing of the jurisdiction for use in proceedings abroad (both criminal and civil). However, on another level, the opposite position is true. A trend has developed to establish substantive claims against ‘unknown’ defendants, and thereby join foreign based banks and other respondents holding information as Norwich Pharmacal respondents on a ‘necessary or proper’ basis. That would seem most sustainable where it is clear that the unknown defendants are amenable to the jurisdiction in the first place. Secondly, it has been recently held that a preaction disclosure order can be served abroad on the basis that it is a claim based on an enactment. If this approach can be sustained there could be much reshaping of this landscape to come, in particular if by analogy such an approach could be taken in respect of an application for third party disclosure. At this point, the need for a convincing solution to the issue of extra-territorial reach in the pure Norwich Pharmacal context becomes paramount. The pressure for a solution may well grow given the prevalence of internet and social media, often based abroad.

17.3 POLICING NORWICH PHARMACAL RELIEF The English courts have been swift to act to police their own orders, both to ensure that they are not unduly frustrated, and also to ensure that they are not used with excessive zeal. Hence, the ancillary disclosure order was developed as an aid to the proper enforcement of a freezing injunction and the supervising solicitor used in conjunction with obtaining search orders was introduced in response to a perception that some solicitors were becoming heavy-handed with them, particularly when it came to the process of serving and executing the orders. There have been many examples of the courts intervening to police Norwich Pharmacal orders and, perhaps more importantly, to establish mechanisms in advance to ensure that the right balance can be maintained between the various competing interests. As explained in Chapter 10.2.4, the courts have intervened to police compliance (as in Patel v UNITE, where the court required the involvement of an independent computer expert to investigate whether responsive information could be extracted from the respondent’s systems); and to guard against excesses by carefully reviewing and editing the text of the proposed letter before action to be sent to those who would be identified by the order (the Golden Eye case, following the issues highlighted from practical experience in previous internet cases). 263

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The cases mention two practical steps, in particular, that warrant further consideration over coming years: the recognition of a duty of full and frank disclosure and the possibility of a supervising solicitor. There is something to commend both possibilities. In circumstances where the respondent may have no active interest in the outcome and the intended target will not typically be represented, it would seem appropriate that the applicant should place all relevant facts before the court, particularly where a difficult balance must be drawn between competing interests. Turning to the supervising solicitor, this role may be particularly significant in a case involving thousands of identities, as is increasingly common in dealing with internet service providers. Clearly, there will be cases which on their facts present unusual challenges when it comes to how the information disclosed is to be used. There can be no objection in principle to the use of a supervising solicitor to assist in maintaining the right balance, at least in cases involving large groups of consumers. Outside that sphere, there would seem little to be gained by the further complexity and cost. In any event, these are topics that are likely to be addressed over coming years.

17.4

COLLECTIVE REDRESS

At the time of writing the second edition, collective redress litigation continues to evolve in the UK. Claimants, in particular, face challenges in structuring their claims either through the representative action or Group Litigation Order. In either case, it would seem that Norwich Pharmacal principles could be involved to assist the Claimant (and their representatives) in identifying those affected by the alleged wrongdoing committed by the Defendant. Arguably, in many cases collective redress cannot be sought unless a substantial body of affected victims can be identified - a clear echo from the original genesis of Norwich Pharmacal (albeit that the emphasis has always been on identifying wrongdoers, not victims).

17.5  INTERNATIONAL FRAUD The Norwich Pharmacal order remains a vitally important remedy in enabling the victim of a fraud to trace the proceeds of such fraud, and potentially obtain vital information in connection with the identities of the perpetrators and any accomplices or other accessories. The English courts have always sought and continue to act rigorously in support of the victim of fraud. When faced with the possibility of extending the scope of a jurisdiction such as Norwich Pharmacal the courts will often be inclined to do so in light of an ‘exceptional case’. International fraud cases, on a large scale, with perhaps a great many victims, will often be considered to fit that category. There are few signs, if any, that fraud and corruption are in decline in the world at large. Whereas, at the time of writing the first edition of this book, the boom in economic activity in the emerging markets was generating increased fraud risk, investors are now as 264

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likely to be faced with the unregulated world of blockchain and cryptocurrencies. The English courts have announced themselves ready and equipped to meet the challenges which these cases may present, and so it may be reasonable to anticipate further judicial creativity and yet more life to be breathed into the Norwich Pharmacal jurisdiction. International fraud is often the context for widening the scope of the relief or otherwise extending its boundaries. The dispute between the Kazakh company JSC BTA Bank and former manager and shareholder of BTA, Mukhtar Ablyazov, has spawned a vast array of reported decisions on freezing orders, receivership orders and contempt of court. As described in Chapter 10.2.4 above, it appears that orders were granted allowing the applicants to monitor certain email accounts on an ongoing basis, all subject to gagging orders to avoid tipping off the substantive defendants. This is one of the clearest examples of the lengths to which the English courts will go to protect the interests of victims of a massive international fraud. It suggests that relief will be granted in ever more inventive ways where justified by the circumstances. Another area where there are likely to be significant developments concerns applications for third party disclosure in proceedings issued against persons unknown (see Ch 14.3 and Ch 15.4). This provides an alternative route alongside Norwich Pharmacal, built upon the idea that there can be substantive proceedings against a defendant even whilst that defendant remains unidentified. It remains to be seen how this area will develop and how far the principles developed in a Norwich Pharamacal context will be applied by analogy or superseded entirely by the broader requirements of discretion more generally applicable to disclosure against third parties during ongoing proceedings. In the UK, the introduction of deferred prosecution agreements (DPAs), announced in October 2012, is likely to be a significant step in the fight against corruption. DPAs allow businesses to agree certain civil sanctions in exchange for a deferral of prosecution, in the hope of meeting the stipulated conditions over a specified period, and thereby avoid the bringing of criminal charges. The availability of DPAs has increased the level of ‘self-reporting’ by corporates, or indeed whistleblowing on the part of employees. Of interest for present purposes, this may provide more opportunities for the use of Norwich Pharmacal relief by affected third parties. For example, if an employee of a company, A, bribes the agent of another company, B, both companies will, assuming they discover the bribe, need to be concerned about the fairness of any resulting contracts. Either company might therefore seek disclosure of information about the bribe, via any number of possible routes. Suppose there is a third company, C, which could have secured the contract but for the bribery. That company C may well have legal redress and may also require disclosure of information, again via any number of routes. As a result of the introduction of DPAs, companies in the position of company C above may more frequently become aware of circumstances which could give them legal redress. Whilst it is expected that DPAs will be published it is unclear whether and to what extent the earlier stages in the process will be public. It remains to be seen therefore whether the Norwich Pharmacal jurisdiction can be invoked in order to obtain information, at an earlier or later stage in that process, or at all. 265

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17.6 CONCLUSION As noted in the first edition of this book, since 1974 the Norwich Pharmacal journey has proceeded largely uninterrupted and has helped to meet the demands for remedies made by applicants in a range of very legitimate situations. It is however worth recalling what might have been. Set out below are the words of Lord Denning MR who gave one of the leading judgments in the Court of Appeal in Norwich Pharmacal itself in rejecting the notion of the duty to assist: ‘… no independent action for discovery lies against a party against whom no reasonable cause of action can be alleged, or who is in the position of a mere witness. … This proposition is founded on good reason. It would be intolerable if an innocent person – without any interest in a case – were to be subjected to an action … simply to get papers or information out of him. The only permissible course is to issue a subpoena for him to come as a witness… to the court.’2

Thankfully, on that occasion Lord Denning was wrong. Over the past 40 years and more, the courts have learned not simply to tolerate a third party’s duty to assist the victim of a wrong, but positively to embrace it. As noted by Sir Robin Jacob, in his Foreword to this second edition, the cases and principles we have sought to describe in the preceding chapters are ‘a classic example of the common law in action’. May its organic growth continue in what are undoubtedly fertile conditions.

2

266

[1974] AC 133 at 139D-E (CA).

Appendix – sample orders

A SIMPLE NORWICH PHARMACAL ORDER IN RESPECT OF AN IDENTITY [CASE HEADING] UPON the application set out in the Claim Form dated [DATE] AND UPON hearing counsel for the Claimant and counsel for the Defendant AND UPON reading the witness statement of [NAME OF WITNESS] AND UPON the Claimant, by its counsel, undertaking: 1

2

3

That if the Court later finds that this order has caused loss to the Defendant and decides that the Defendant should be compensated for that loss, the Claimant will comply with any order the court may make. Not to make use without the permission of the Court of any documents obtained as a result of this order other than for the purposes of bringing proceedings against any person in relation to the causes of action set out in paragraph [NUMBER] of the witness statement of [NAME OF WITNESS] To pay the Defendant its reasonable costs and expenses of complying with this order.

IT IS ORDERED that: 1 By [TIME] on [DATE] (or by such later date as may be agreed in writing with the Claimant), the Defendant shall provide to the Claimant in writing signed by a responsible officer the full names and addresses of the persons referred to in paragraph [NUMBER] of the witness statement of [NAME OF WITNESS] 2 [The Claimant shall pay the costs of the application in any event]

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Appendix – sample orders

B  BANKERS TRUST ORDER [CASE HEADING] PENAL NOTICE IF YOU THE WITHIN NAMED [COMPANY/ENTITY] NEGLECT TO OBEY THIS ORDER BY THE TIME STATED, YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND LIABLE TO HAVE YOUR ASSETS SEIZED IF [COMPANY/ENTITY] NEGLECTS TO OBEY THIS ORDER BY THE TIME STATED, YOU [NAME OF DIRECTOR] (A DIRECTOR OR OFFICER OF THE SAID [COMPANY/ENTITY]) MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR YOUR ASSETS MAY BE SEIZED ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED UPON the application of [NAME OF APPLICANT] dated [DATE] AND UPON reading the witness statement of [NAME OF WITNESS] AND UPON hearing counsel for the Applicant [and …] AND UPON the Applicant, by its counsel, undertaking: 1 That if the Court later finds that this order has caused loss to the Respondent [and/or the Defendant] and decides that the Respondent [and/or Defendant] should be compensated for that loss, the Applicant will comply with any order the Court may make. 2 Not to make use without the permission of the Court of any information or documents obtained as a result of this order other than in connection with the Claimant’s: (a) following or tracing the proceeds of the alleged frauds described in paragraph [NUMBER] of the witness statement of [NAME OF WITNESS]; and/or (b) bringing the proceedings described in paragraph [NUMBER] of the said witness statement. 3 To pay the Respondent its reasonable costs and expenses of complying with this order. IT IS ORDERED that: 1 By [TIME] on [DATE] (or by such later date as agreed in writing with the Applicant), the Respondent shall provide to the Applicant an affidavit made by a responsible officer which identifies: 268

Bankers Trust Order

2

3

4

5

6 7

8

[ITEMISE CLEARLY THE INFORMATION SOUGHT. BY WAY OF EXAMPLE ONLY: (a) details of all bank accounts held at the Respondent in the Defendant’s name as at [DATE]; (b) for each bank account in (a) above, the sums or balances standing in that account as at [DATE]; (c) details of the source of any payments into the said accounts, including a description of any transaction or other dealing to which each payment relates; (d) details of all cheques drawn on any account in (a) above from [DATE] to [DATE] onwards; and (e) details of all transfer applications and orders relating to any account in (a) above from [DATE] onwards.] By [TIME] on [DATE] (or by such later date as agreed in writing with the Applicant), the Respondent shall provide to the Applicant a list of documents specifying whether each of the documents and/or classes of documents specified in the Schedule to this order are presently in its control, and if not, specifying which of those documents and/or classes of documents are no longer in its control (and indicating what has happened to such documents). The Applicant shall make any request for inspection of the documents disclosed by the Respondent in writing within [NUMBER] days after service of the list of documents. The Respondent shall provide the Applicant with copies of the requested documents within [NUMBER] days of receipt of the request made under paragraph  3 (or by such later date as may be agreed in writing with the Applicant). Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly inform anyone of these proceedings or of the existence or contents of this order, or that it is to disclose the information sought, until [DATE] or further order. There will be a further hearing in respect of this order on [DATE] (the ‘Return Date’). The Respondent be at liberty to apply to the Court to vary or discharge this order but it must first inform the Applicant’s solicitors in writing in advance. The Respondent’s costs of this application shall be paid in the first instance by the Applicant.

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Index [all references are to page number]

A Access to court documents generally, 234–235 Agents involvement, and, 100–102 Alternative avenues for discovery commercial secrets, and, 211 court rules, 167–169 international issues, 170–172 introduction, 167 journalistic sources, and, 208 legislative provisions, 170 likelihood of availability of information, 172 American Cyanamid principles procedural considerations, and, 189 Applicant’s interest generally, 148–149 introduction, 137 Applications procedural considerations, and,  185–186 Arbitration background, 255–257 introduction, 255 limits on disclosure, 255–257 Norwich Pharmacal relief in an arbitration, 257–258 in support of an arbitration, 259–260 objections to disclosure, and, 167 overview, 8 pre-action disclosure, 256–257 subpoena duces tecum, and, 256 third party disclosure, 255–256 witness summons, and, 256 B Balance of convenience discretion, and, 137 Banker’s books generally, 246

Bankers Trust orders background immediate predecessor decisions, 32–34 Mareva authorities, 31–32 post Norwich Pharmacal cases, 29–31 case summary, and, 34–36 extra-territorial scope, and, 215 freezing injunctions generally, 31–32 tracing assets, and, 40–41 introduction, 29 overview, 4 sample order, 268–269 scope, 36–39 tracing assets absence of proprietary claims, in, 41–42 freezing injunctions, 40–41 generally, 39–40 wrongdoing, and, 94 Breach of confidence wrongdoing, and, 67 Breach of contract wrongdoing, and, 67 Brussels Regulation generally, 225–227 introduction, 224 provisional measures, 227 ‘sued’, 225 Bystanders involvement, and, 95 C Causes of action extra-territorial scope, and, 221 wrongdoing, and, 71–73 Civil Procedure Rules see also Procedural considerations access to court documents, 234–235 generally, 185–186 persons unknown, 236–237 271

Index Civil Procedure Rules – contd pre-action disclosure, 231–234 third party disclosure, 235–236 witness summons, 237–239 Civil wrongs wrongdoing, and, 67 Claim forms procedural considerations, and, 185 Collective redress generally, 26 Commercial secrets generally, 210 Confidentiality generally, 159–160 independent solicitors, 163 interests, 160–162 regimes, 162–163 Contempt of court journalistic sources, and, 203–205 necessity, and, 113 Cost objections to disclosure, and, 174–175 Costs generally, 190–192 introduction, 3 Court rules objections to disclosure, and, 167–169 Crime prevention journalistic sources, and, 206 Criminal wrongs wrongdoing, and, 67–69 Cross-examination discretion, and, 157–158 D Data protection challenges to claims, 252–253 objections to disclosure, and, 170 subject access requests, 249–251 Defamation generally, 210–211 Directors wrongdoing, and, 73–74 Disclosure within proceedings objections to disclosure, and, 167 Discretion actions against respondent, 142–148 applicant’s interest generally, 148–149 introduction, 137 balance of convenience, and, 137 cross-examination, 157–158 documents generally, 151–155 limits, 155–156 email accounts, 156 ‘full information’, 152 272

Discretion – contd gagging orders, 156 generally, 6–7 information, 150–151 interests applicant, 148–149 generally, 137–138 respondent, 137 introduction, 137 letter before action, 156 ‘missing piece of the jigsaw’, 152 necessity, and, 131, 137 objections to disclosure, and confidentiality, 160–163 generally, 159–160 identifying innocents, 165 privacy, 161–162 public interest immunity, 163–164 whistleblowers, 164–165 wrongdoing, 165–166 overview, 3 post-judgment orders, and, 154 proportionality, 138–142 public interest, 137 respondent’s interest, 137 scope of relief cross-examination, 157–158 documents, 151–156 generally, 149–150 information, 150–151 introduction, 149 other orders, 156–157 overview, 7 test actions against respondent, for, 142– 148 interest of applicant, 148–149 generally, 137–138 proportionality, 138–142 website forums, 156–157 wrongdoing, and, 91–93 Dismissal of employee extra-territorial scope, and, 230 Documents discretion, and generally, 151–155 limits, 155–156 Draft orders procedural considerations, and, 187–188 discretion, and, 156 E Employees involvement, and, 100–102 journalistic sources, and, 208 Enforcement of judgments conclusion, 64

Index Enforcement of judgments – contd generally, 44–45 introduction, 43–44 overview, 4 Evidence procedural considerations, and, 186 Evidence (for use) in foreign proceedings extra-territorial scope, and generally, 215–217 information – evidence distinction, 217–218 interim relief, and, 218–221 objections to disclosure, and, 166 Expediency extra-territorial scope, and, 218–221 Extra-territorial scope Bankers Trust Co orders, and, 215 Brussels Regulation applies, where generally, 225–227 introduction, 224 provisional measures, 227 ‘sued’, 225 cause of action, and, 221 dismissal of employee, 230 evidence for use in foreign proceedings generally, 215–217 information – evidence distinction, 217–218 interim relief, and, 218–221 expediency, 218–221 future developments , 262–263 generally, 215 information – evidence distinction,  217–218 interim relief, 218–221 introduction, 8 jurisdiction over respondent European dimension, where, 224–227 no European dimension, where,  221–224 Mackinnon principle, 228–230 objections to disclosure, and, 170–172 overview, 3 respondent outside Europe, where ‘do an act within the jurisdiction’, 223 enforceability, 224 generally, 221–224 jurisdiction clauses, 221 ‘necessary or proper party’, 221–222 persons unknown proceedings, 223 subject matter jurisdiction introduction, 228 Mackinnon principle, 228–230 redress other than proceedings, 230 substantive dispute overseas, 215–218 termination of contracts, 230

F Facilitation involvement, and, 96–98 Finality procedural considerations, and, 200 ‘Flexible remedy’ Ashworth Hospital Authority v MGN,  55–58 Binyan Mohamed, 58–61 generally, 55 intelligence services, and, 63 Omar, Njorge and Mbuthia, 62–63 overview, 4 sensitive information, and, 63 Shaker Aamer, 61 subsequent cases, 63 Forums discretion, and, 156–157 Fraud Bankers Trust Co orders, and background, 29–34 case summary, 34–36 freezing injunctions, 31–32 introduction, 29 overview, 4 scope, 36–39 tracing assets, 39–42 future developments , 264–265 generally, 210–212 introduction, 4 wrongdoing, and, 69 Freedom of expression journalistic sources, and, 207–210 Freedom of information requests objections to disclosure, and, 170 Freezing injunctions Bankers Trust orders, and generally, 31–32 tracing assets, 40–41 generally, 31–32 tracing assets, and, 40–41 Full and frank disclosure procedural considerations, and,  192–194 ‘Full information’ discretion, and, 152 Future developments introduction, 8 G Gagging orders discretion, and, 156 procedural considerations, and, 189 ‘Good arguable case’ generally, 83–86 introduction, 3 Ramilos v Buyanovsky, and, 52 273

Index Group litigation orders future developments, 264 procedural considerations, 195–196 H Human rights journalistic sources, and, 207–210 I Inability to assist objections to disclosure, and, 175–176 Inconvenience objections to disclosure, and, 174–175 Independent solicitors objections to disclosure, and, 163 Information discretion, and, 150–151 Infringement of IPR wrongdoing, and, 67 Inherent jurisdiction generally, 242–244 Innocent parties generally, 239–242 objections to disclosure, and, 165 procedural considerations, and, 194 wrongdoing, and, 82–83 Insolvency powers of office holders, and, 244–245 Intelligence services ‘flexile remedy’, and, 63 ‘Interest’ discretion, and applicant, 148–149 generally, 137–138 respondent, 137 origins of relief, and, 13–15 Interests of justice journalistic sources, and, 206 Interim freezing orders unexplained wealth orders, and, 248–249 Interim/interlocutory relief extra-territorial scope, and, 218–221 generally, 188–189 introduction 186 Intermediaries wrongdoing, and, 78–82 Internal investigations objections to disclosure, and, 172–174 International arbitration background, 255–257 introduction, 255 limits on disclosure, 255–257 Norwich Pharmacal relief in an arbitration, 257–258 in support of an arbitration, 259–260 objections to disclosure, and, 167 overview, 8 274

International arbitration – contd pre-action disclosure, 256–257 subpoena duces tecum, and, 256 third party disclosure, 255–256 witness summons, and, 256 International fraud see also Fraud future developments , 264–265 International issues objections to disclosure, and, 170–172 Internet future developments , 261–262 generally, 201–202 Internet service providers (ISPs) procedural considerations, and, 194–195 Investigations objections to disclosure, and, 172–174 Involvement agents, 100–102 bystanders, 95 employees, 100–102 illustrations, 102–106 introduction, 95 ‘mixed up’ in the wrong, 95 objections to disclosure, and, 159 origins, 95–96 overview, 5–6 participation, 95 facilitation, 96–98 respondent wrongdoer, 108–109 standard of proof, 106–108 subsequent formulations, 96–100 J Joinder of parties generally, 246 Journalistic sources common law rule, 203 contempt of court, 203–205 employee loyalty, 208 freedom of expression, 207–210 interests of justice, 206 introduction, 202 leaked documents, 205, 208 ‘necessary in a democratic society’,  208–209 necessity, 205–206 permitted exceptions, 205–210 prevention of crime, 206 proportionality, 209 ‘publication’, 204 ‘sources’ of information, 204–205 statutory provisions generally, 203–205 permitted exceptions, 205–210 Justice and Security Act 2013 ‘flexile remedy’, and, 63

Index L Land Registry entries objections to disclosure, and, 166 Leaked documents journalistic sources, and, 205, 208 Legislative provisions objections to disclosure, and, 170 Legitimate objectives broader considerations, 135–136 categories, 132–133 ‘missing piece of the jigsaw’ 133 misuse of documents, 132–133 timing of application, 135 Letter before action discretion, and, 156 Limits on jurisdiction introduction, 3 Litigation funding wrongdoing, and, 75 M Mackinnon principle extra-territorial scope, and, 228–230 Mareva injunctions generally, 31–32 Means of defendant wrongdoing, and, 75–76 ‘Mere witness’ rule generally, 6 House of Lords decision in Norwich Pharmacal, and, 23–26 introduction, 4 necessity, and, 113 origins of relief, and, 9–10 ‘Missing piece of the jigsaw’ AOOT Kalmneft v Denton Wilde Sapte, 48–49 Axa v National Westminster, 46–48 Binyen Mohamed, 51 Carlton v VCI and VDC, 49–50 conclusion, 64 discretion, and, 152 discussion points, 53–55 generally, 45 introduction, 43–44 Mitsui v Nexen Petroleum, 50–51 necessity, and general, 53–55 Mitsui v Nexen Petroleum, 51 Rusal v HSBC, 51 overseas authorities, 52–53 overview, 4–5 P v T, 46 Ramilos v Buyanovsky, 52 United Company Rusal v HSBC,  51–52 wrongdoing, and, 83–87

‘Mixed up’ requirement see also Involvement generally, 95 introduction, 5 Mobile phone service providers procedural considerations, and, 195–196 N ‘Necessary in a democratic society’ journalistic sources, and, 208–209 ‘Necessary or proper party’ extra-territorial scope, and, 221–222 Necessity applicable test, 131 Ashworth decision, 115–117 contempt of court, and, 113 discretion, and, 131, 137 Equatorial Guinea decision English law, in, 124–125 generally, 122–124 generally, 6 introduction, 111 journalistic sources, and, 205–210 legitimate objectives, and broader considerations, 135–136 categories, 132–133 ‘missing piece of the jigsaw’ 133 misuse of documents, 132–133 timing of application, 135 ‘mere witness’ rule, and, 113 ‘only practicable source of information’, 112–113 origins, 111–115 overseas authorities Canada, 130–131 Jersey, 129–130 overview, 3 post-Ashworth developments,  117–122 practical application, 132 subsequent decisions, 125–129 tracing assets, and, 113 Norwich Pharmacal orders see also under individual headings availability, 4–5 case summary Court of Appeal decision, 22–23 facts, 21–22 first instance decision, 22 House of Lords decision, 23–26 introduction, 21 subsequent developments, 27–28 commercial secrets, 210 costs, 3 Court of Appeal decision, 22–23 defamation, 210–211 275

Index Norwich Pharmacal orders – contd discretion generally, 137–149 introduction, 6–7 overview, 3 enforcement of judgments, and, 4 extension of scope conclusion, 64 flexible remedy, as, 55–64 introduction, 43–44 missing piece of the jigsaw’, 45–55 overview, 4 post-judgment enforcement,  44–45 extra-territorial scope generally, 215--230 introduction, 8 overview, 3 facts, 21–22 first instance decision, 22 flexible remedy, as, 55–64 fraud, 210–212 future developments generally, 261–266 introduction, 8 House of Lords decision, 23–26 international arbitration, and in an arbitration, 257–258 in support of an arbitration,  259–260 internet, 201–202 introduction, 1–2 involvement generally, 95–109 introduction, 5–6 journalistic sources, 202–210 limits on jurisdiction, 3 ‘mere witness’ rule generally, 6 introduction, 4 ‘missing piece of the jigsaw’, and generally, 45–55 introduction, 4–5 ‘mixed up’ requirement, 5 modern applications generally, 201–214 introduction, 7 necessity generally, 111–136 introduction, 6 overview, 3 objections generally, 159–183 introduction, 7 origins of jurisdiction generally, 9–19 introduction, 4 276

Norwich Pharmacal orders – contd post-judgment enforcement generally, 44–45 introduction, 4 modern application, 212--214 principles for grant, 3–4 procedural considerations generally, 185–200 introduction, 7 proportionality, 6–7 public authorities, 214 sample order, 267 scope of relief generally, 149–158 introduction, 7 social media, 201–202 subsequent developments Bankers Trust Co orders, and, 29–31 generally, 27–28 threshold requirements generally, 5–6 introduction, 3 involvement, 5–6 necessity, 6 wrongdoing, 5–6 tracing assets, and, 4 victims of fraud, and, 4 wrongdoing generally, 65–94 introduction, 5–6 O Objections alternative avenues for discovery, where court rules, 167–169 international issues, 170–172 introduction, 167 legislative provisions, 170 likelihood of availability of information, 172 arbitration proceedings, 167 confidentiality generally, 159–160 independent solicitors, 163 interests, 160–162 regimes, 162–163 cost, 174–175 court rules, and, 167–169 data protection, 170 disclosure within proceedings, and, 167 evidence in foreign proceedings, 166 exercise of discretion, to confidentiality, 160–163 generally, 159–160 identifying innocents, 165 privacy, 161–162 public interest immunity, 163–164

Index Objections – contd exercise of discretion, to – contd whistleblowers, 164–165 wrongdoing, 165–166 extra-territorial issues, and, 170–172 freedom of information requests, and, 170 generally, 7 identifying innocents, 165 inability to assist, 175–176 inconvenience, 174–175 independent solicitors, 163 innocent parties, and, 165 internal investigations, 172–174 international issues, and, 170–172 introduction, 159 involvement, 159 Land Registry entries, 166 legislative provisions, and, 170 likelihood of availability of information, 172 limitations under other regimes, where, 166–167 other factors, 173 pre-action disclosure, and, 167 privacy, 161–162 privilege generally, 178–179 position of lawyers, 179–181 privilege against self-incrimination,  176–178 public interest immunity, 163–164 right to silence, 176–178 self-incrimination, 176–178 shareholder-company relationships, 166 third party disclosure, and, 167 threshold requirements, and, 159 trustee-beneficiary relationships, 166 undertakings, 181–183 weight of interest in confidentiality,  159–160 whistleblowers, 164–165 wrongdoing exercise of discretion, in, 165–166 threshold requirement, as, 159 Office holders powers in insolvency, and, 244–245 Officers of the court solicitors, and, 244 ‘Only practicable source of information’ necessity, and, 112–113 Origins of Norwich Pharmacal jurisdiction Dixon v Enoch, 15 early ancestors, 11–13 ‘interest’ in relief, 13–15 introduction, 9 later developments, 18–19

Origins of Norwich Pharmacal jurisdiction – contd ‘mere witness’, and, 9–10 Orr v Diaper generally, 15–16 introduction, 11 overview, 4 persons having an ‘interest’, 13–15 practice of discovery, 9–11 subpoena duces tecum, and, 9 Upmann v Elkan, 17–18 P Participation see also Involvement generally, 95 introduction, 95 Peer-to-peer file sharing (P2P) procedural considerations, and, 194–196 Penal notices procedural considerations, and, 187 Persons having an ‘interest’ origins of relief, and, 13–15 Persons unknown extra-territorial scope, and, 223 generally, 236–237 procedural considerations, and, 186 Post-judgment enforcement conclusion, 64 discretion, and, 154 generally, 44–45 introduction, 43–44 modern application, 212--214 overview, 4 wrongdoing, and, 69–71 Pre-action disclosure generally, 231–234 international arbitration, and, 256–257 introduction, 8 objections to disclosure, and, 167 Prevention of crime journalistic sources, and, 206 Principles for grant introduction, 3–4 Privacy objections to disclosure, and, 161–162 Privilege objections to disclosure, and generally, 178–179 position of lawyers, 179–181 Privilege against self-incrimination objections to disclosure, and, 176–178 wrongdoing, and, 69 Procedural considerations absent interests full and frank disclosure, 192–194 innocent parties, 194 277

Index Procedural considerations – contd absent interests – contd introduction 192 other solutions, 194–196 public interest, 196 American Cyanamid principles, and, 189 applications, 185–186 claim forms, 185 constraints upon use of information and documents, 197–200 costs, 190–192 draft orders, 187–188 evidence, 186 finality, 200 full and frank disclosure, 192–194 gagging order, 189 generally, 185–186 innocent parties, 194 interlocutory relief generally, 188–189 introduction 186 internet service providers (ISPs), 194–195 introduction, 7 mobile phone service providers, 195–196 overview, 3 Part 7 CPR, 186 Part 8 CPR, 185–186 Part 23 CPR, 186 peer-to-peer file sharing (P2P), 194–196 penal notices, 187 persons unknown, and, 186 public interest, 196 secrecy, 189–190 tipping off, 190 venue for proceedings, 186 witness statements, 186 Proportionality discretion, and, 138–142 introduction, 6–7 journalistic sources, and,, 209 Proprietary orders generally, 245–246 Public authorities generally, 214 Public interest discretion, and, 137 procedural considerations, and, 196 Public interest immunity objections to disclosure, and, 163–164 ‘Publication’ journalistic sources, and, 204 R Representative actions future developments , 264 Respondent’s interest discretion, and, 137 278

Right to silence objections to disclosure, and, 176–178 S Scope of relief cross-examination, 157–158 documents, 151–156 generally, 149–150 information, 150–151 introduction, 149 other orders, 156–157 overview, 7 Secrecy procedural considerations, and, 189–190 Self-incrimination objections to disclosure, and, 176–178 Sensitive information ‘flexile remedy’, and, 63 Shareholder actions wrongdoing, and, 73–74 Shareholder-company relationships objections to disclosure, and, 166 Social media future developments , 261–262 generally, 201–202 Solicitors officers of the court, as, 244 ‘Sources’ of information journalistic sources, and, 204–205 Standard of proof involvement, and, 106–108 wrongdoing, and, 83–87 Strict liability torts wrongdoing, and, 75 Subject access requests (SAR) challenges to claims, 252–253 generally, 249–251 Subject matter jurisdiction introduction, 228 Mackinnon principle, 228–230 redress other than proceedings, 230 Subpoena duces tecum international arbitration, and, 256 origins of relief, and, 9 Supervision of trusts wrongdoing, and, 76–77 T Termination of contracts extra-territorial scope, and, 230 Third party costs orders wrongdoing, and, 75 Third party disclosure generally, 235–236 international arbitration, and, 255–256 introduction, 8 objections to disclosure, and, 167

Index Threshold requirements generally, 5–6 introduction, 3 involvement see also Involvement agents and employees, 100–102 illustrations, 102–106 introduction, 95 origins, 95–96 overview, 5–6 respondent wrongdoer, 108–109 standard of proof, 106–108 subsequent formulations, 96–100 necessity see also Necessity applicable test, 131 Ashworth decision, 115–117 Equatorial Guinea decision, 122–124 generally, 111–115 introduction, 111 legitimate objectives, 132–136 origins, 111–115 overseas authorities, 129–131 overview, 6 post-Ashworth developments, 117–122 poractical application, 132 subsequent decisions, 125–129 objections to disclosure, and, 159 wrongdoing see also Wrongdoing categories, 67–69 discretion, 91–93 identity of wrongdoer, 65–67 intermediaries, 78–83 introduction, 65 meaning, 71–78 overseas authorities, 87–91 overview, 5–6 post-judgment orders, 69–71 standard of proof, 83–91 Tipping off procedural considerations, and, 190 Torts wrongdoing, and, 67 Tracing assets Bankers Trust orders, and absence of proprietary claims, in,  41–42 freezing injunctions, 40–41 introduction, 4 necessity, and, 113 Trustee-beneficiary relationships objections to disclosure, and, 166 U Undertakings objections to disclosure, and, 181–183

Unexplained wealth orders generally, 246–249 Unjust enrichment wrongdoing, and, 67 Use of information and documents procedural considerations, and, 197–200 V Venue for proceedings procedural considerations, and, 186 Victims of fraud Bankers Trust Co orders, and background, 29–34 case summary, 34–36 freezing injunctions, 31–32 introduction, 29 overview, 4 scope, 36–39 tracing assets, 39–42 introduction, 4 wrongdoing, and, 69 W Website forums discretion, and, 156–157 Whistleblowers objections to disclosure, and, 164–165 Witness statements procedural considerations, and, 186 Witness summons generally, 237–239 international arbitration, and, 256 origins of relief, and, 9 Wrongdoing actionable cause of action, 71–73 Bankers Trust orders, and, 94 breach of confidence, 67 breach of contract, 67 categories, 67–69 civil wrongs, 67 criminal wrongs, 67–69 directors, by, 73–74 discretion, and, 91–93 fraud, 69 ‘good arguable case’ generally, 83–86 introduction, 3 Ramilos v Buyanovsky, and, 52 identity of wrongdoer, 65–67 infringement of IPR, 67 innocent persons, 82–83 intermediaries, 78–82 introduction, 65 litigation funding, 75 meaning, 71–78 means of defendant, 75–76 ‘missing piece of the jigsaw’, and, 83–87 279

Index Wrongdoing – contd objections to disclosure, and exercise of discretion, in, 165–166 threshold requirement, as, 159 overseas authorities Canada, 87–89 conclusions, 91 Hong Kong, 89–91 Jersey, 89 overview, 5–6 post-judgment orders, 69–71

280

Wrongdoing – contd privilege against self-incrimination, and, 69 shareholder actions, and, 73–74 standard of proof, 83–87 strict liability torts, 75 supervision of trusts, 76–77 third party costs orders, 75 torts, 67 unjust enrichment, 67 wrongdoer, 65–67