What exactly is a Norwich Pharmacal order?

In situations where an innocent third party has information about conduct which may assist a litigant, an applicant apply to the Court to have that third party disclose such information.  For example, a bank which has knowledge of a transaction or conduct that would assist a litigant it may be obliged to hand over the information sought.  Orders such as this are known as Norwich Pharmacal orders and evolved from the case of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (Norwich Pharmacal).

The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) do not explicitly govern pre-litigation or preliminary discovery.  Thus, Norwich Pharmacal may, in certain circumstances, allow for preliminary discovery and is most commonly used when attempting to ascertain the identity of persons to pursue through various legal channels.

The rule in Norwich Pharmacal

Norwich Pharmacal was heard before the United Kingdom’s House of Lords, which held at page 175 the following:

“[t]he authorities 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.”^[1]

Lord Reid determined that in circumstances where a party was a ‘mere witness’, preliminary discovery will not be open to the applicant, holding at page 173: 

“[i]t has been clear at least since the time of Lord Hardwicke that information cannot be obtained by discovery from a person who will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tecum. Whether the reasons justifying that rule are good or bad it is much too late to inquire: the rule is settled.”

This judgment by Lord Reid shows that preliminary discovery to find the identity of a wrongdoer is available against anyone whom the plaintiff has a cause of action in relation to the same wrong.  It will not be available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession.  The House of Lords considered that justice requires such person be involved in the wrongdoing, voluntarily or otherwise, before being obligated to co-operate.

Application by Australian Courts

Preliminary discovery through channels other than by Norwich Pharmacal orders was considered in the High Court case of John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 (Fairfax).  The High Court considered that, where existing legislation may facilitate preliminary discovery, it ought to be relied upon but noted that an applicant seeking relief in circumstances similar to Norwich Pharmacal must show that such order is in the interests of justice, holding at page 357:

“…in other words the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains.”^[2]

Despite the aversion of the High Court in Fairfax, the rule in Norwich Pharmacal has been considered and applied on multiple occasions by the High Court and can now be considered law in Australia.^[3]

Recently, Flick J in the Federal Court decision of A Nelson & Co Ltd v Martin & Pleasance Pty Ltd [2021] FCA 228 held that, at least in the United Kingdom, but not necessarily in Australia, there exist three (3) threshold conditions prior to the granting of a Norwich Pharmacal order.  Authority for these conditions can be found in Orb ARL v Fiddler [2016] EWHC 361 (Orb) where Popplewell J concluded over paragraphs [83] – [88]:

• there must have been a wrong carried out, or arguably carried out, by an ultimate wrongdoer. Where a wrong is merely arguable the strength of that argument will be a factor in the exercise of the discretion;
• the disclosure sought must be necessary in order to enable the applicant to bring legal proceedings or seek other legitimate redress for the wrongdoing; and
• the person against whom the order is sought must be involved in the wrongdoing in a way which distinguishes him from being a mere witness.

Flick J did not decide whether the three (3) threshold conditions applied in Australia, instead exercising the Federal Court’s discretion not to allow the order.  Nonetheless, Flick J did consider the applicant in this case had fallen afoul of the second condition, which may have influenced his Honours exercise of discretion.

Further, in Re Pyne [1996] QSC 128 (Pyne) Shepherdson J, having considered both Norwich Pharmacal and Fairfax, determined the following:

“…the interests of justice are relevant to the exercise of the judicial discretion and in considering the interests of justice the judge must consider whether the applicant is left without an effective remedy, if the order sought is not made.”

In Pyne, following the House of Lords decision in Norwich Pharmacal, the Court held, that where a person is involved in the tortious acts of another, even if it is through no fault of his or her or their own, the Court may order the person to provide information about the identity of the tortfeasor, including by disclosure.  Norwich Pharmacal orders generally require the respondent to provide documents, records and full information that may assist the applicant in determining whom to initiate Court proceedings against.

In Queensland, Courts make Norwich Pharmacal orders, provided the applicant can show that the discovery is necessary, and it has a potential cause of action.  Courts can order the production of all information necessary for the applicant in deciding whether pursuing a claim is worth it for them or not.

Norwich Pharmacal orders and criminal proceedings

General principles of disclosure suggest that some difficulty may arise if information obtained from a respondent pursuant to a Norwich Pharmacal order is attempted to be disclosed in criminal proceedings.^[4]  The key difficulty in such a case is that criminal defendants may enjoy privilege against self-incrimination.^[5]  Some suggestion has been made that it would be insufficient merely to swear that production of documents would tend to incriminate a party giving discovery.  It appears, rather, that the Court must be satisfied that there is a reasonable potential that such disclosure would lead to the criminal defendant’s conviction.^[6]

Takeaways

The rule in Norwich Pharmacal may allow for an applicant to seek preliminary discovery in respect of the identity of persons a party may wish to pursue through various legal channels.  Such action is often very helpful in the early stages of civil litigation.  A Norwich Pharmacal order may be made in Australia, but it is not yet certain whether the additional three threshold criteria developed in Orb apply.  It may very well be the case that they do.  Before granting a Norwich Pharmacal order, the Court must be satisfied the person subject to the order was actually or arguably involved in the wrongdoing and that it is in the interests of justice to do so.

Links and further references

Legislation

Uniform Civil Procedure Rules 1999 (Qld)

Cases

Anderson v Australian Securities and Investments Commission [2012] QCA 301

A Nelson & Co Ltd v Martin & Pleasance Pty Ltd [2021] FCA 228

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63

Australian Workers’ Union v Registered Organisations Commissioner (No 5) [2019] FCA 188

Computershare Ltd v Perpetual Registrars Ltd & Ors [2000] VSC 139

John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54

Breen v Williams (“Medical Records Access case”) [1996] HCA 57

Lamb v Munster (1882) 10 QBD 110

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq)) and Others (Matter No B55/2016) [2017] HCA 5

Orb ARL v Fiddler [2016] EWHC 361

Re Pyne [1996] QSC 128

Further information about preliminary discovery

If you need advice on preliminary discovery, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1]  These principles were applied later by the House of Lords in X Ltd v Morgan-Grampian (Publishers) Ltd (1991) 1 AC 1.

[2]  This view was adopted by Shepherdson J in Re Pyne [1996] QSC 128.

[3]  Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; see also Breen v Williams (“Medical Records Access case”) [1996] HCA 57; Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq)) and Others (Matter No B55/2016) [2017] HCA 5.

[4] Anderson v Australian Securities and Investments Commission [2012] QCA 301.

[5] Anderson v Australian Securities and Investments Commission [2012] QCA 301.

[6] Australian Workers’ Union v Registered Organisations Commissioner (No 5) [2019] FCA 188; see also Lamb v Munster (1882) 10 QBD 110.

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