The law relating to Norwich Pharmacal Orders

• Author: David Culleton
• Position: B.A. & LLB
• Pages: 20-46

IRISH JUDICIAL STUDIES JOURNAL

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[2021] Irish Judicial Studies Journal Vol 5(1)

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THE LAW RELATING TO NORWICH

PHARMACAL ORDERS

Abstract: This article provides a comprehensive overview of the law relating to Norwich Pharmacal Orders.

It traces the development of the law in this jurisdiction since they were first considered by the superior courts

in Megaleasing UK Ltd v. Barrett in 1993. It comprehensively considers the recent decisions of the superior

courts and the proofs required before Norwich Pharmacal relief is granted. This article also examines some of

the seminal decisions in England and Wales, where the Norwich Pharmacal principles h ave underwent

significant extension. The aim of this comparative analysis is to examine some of the seminal decisions of the

English and Welsh courts which are likely to prove highly persuasive in the future decisions of the superior

courts in Ireland. The issues underpinning the prohibitive costs of obtaining Norwich Pharmacal relief and

proposals for reform are also considered.

Author: David Culleton, B.A. & LLB. The author is a Practising Solicitor since 2009.

Introduction

The Norwich Pharmacal Order is a powerful and versatile remedy that assists to identify

wrongdoers who seek to hide behind the mask of anonymity.

1

It has been the subject of

considerable attention from the superior courts, particularly in the past 5 years or so. The

increased focus appears to have been spurred predominantly by applications for relief by

plaintiffs who have suffered harm as a result of the actions of anonymous or pseudonymous

online wrongdoers. However, it can also be deployed to remedy a wide variety of

wrongdoings unconnected to the use of the World Wide Web. Several recent judgments of

the superior courts provide a useful insight as to the considerations undertaken by a court

before granting Norwich Pharmacal relief, and clarify the evolution of the law in this area

since the Supreme Court first confirmed the jurisdiction of the superior courts to grant such

orders in Megaleasing UK Ltd v. Barrett 28 years ago.

2

Definition

A Norwich Pharmacal Order is a particular type of disclosure order where the only cause of

action is discovery.

3

Essentially, the order compels a defendant, who has become mixed up

in the alleged wrongdoing of a third party in some manner, either knowingly or innocently,

to disclose information that would assist to identify this third party wrongdoer to the

plaintiff. The purpose of the order is therefore to place a plaintiff in a position to identify

and seek redress against a previously unknown wrongdoer.

The authority to grant Norwich Pharmacal relief is founded on the court’s equitable

jurisdiction, derived from a ‘contemporary incarnation of the equitable bill of discovery’.

4

1

The concept of a Norwich Pharmacal Order first em erged in the eponym ous matter of Norwich Ph armacal Co

v Custo ms and Excise Commissioners [1974] AC 133. See (n 5) for a dis cussion on the particular facts o f this matter.

2

[1993] ILRM 497.

3

Brid Moriarty, Evidence in Civil Law - Ireland, (Lex Localis 2015) 23.

4

Marie-Andree V ermett and Nikiforus Iatrou , Norwich Orders in Canada – A Tool for Twenty First Century Litigat ion.

(The Canadian Legal Expert Directory, 2010) <https ://www.weirfoulds .com/assets/u ploads/6790_Reprint-

NorwichOrders-Original.pdf> accessed 14 November 2020. In Muwema v Facebook Ireland Limited [2018] IECA

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Therefore, it is a versatile remedy, granted at the discretion of the court, when deemed to be

a proportionate and necessary response in all of the circumstances of a matter.

Origin of the Norwich Pharmacal Order

The concept of the Norwich Pharmacal Order first emerged in the House of Lords, in the

eponymous matter of Norwich Pharmacal Co v Customs and Excise Commissioners.

5

In this matter,

the claimant alleged that an unknown wrongdoer had unlawfully been importing

pharmaceutical drugs manufactured in contravention of its patents. The defendant had

innocently assisted the wrongdoer to breach the claimant’s patent by permitting the

importation of these products into the United Kingdom. The claimant issued proceedings

against the defendant seeking discovery of the documents received by the defendant from

the wrongdoer, with the specific purpose of identifying the wrongdoer. The House of Lords

held that while the defendant had unwittingly become mixed up in the tortious act, it

nevertheless had a duty to disclose the identity of the wrongdoer to the claimant. Lord Reid,

delivering what was to become the foundation of the threshold test criterion, stated 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 wrong doers.

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It was with this decision that the concept of the Norwich Pharmacal Order first emerged as

a potent equitable remedy. Almost twenty years later, the superior courts in Megaleasing UK

Ltd endorsed the application of Lord Reid’s principles into Irish law.

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Evidence of Wrongdoing

In Megaleasing UK Ltd,

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the plaintiffs alleged that in the years 1989 and 1990 , four invoices

totalling IR£500,000 were raised by some of the defendants against the plaintiff. These

invoices were authorised for payment by servants or agents of the plaintiff and subsequently

were discharged. The plaintiff conducted an investigation into these payments and could not

find any satisfactory explanation of any value for goods or services had actually been

provided to the plaintiff. The plaintiff in this matter sought a Norwich Pharmacal Order

seeking discovery of fuller facts surrounding the authorisation and payment of the four

invoices against some of the defendants on the basis that they had either wittingly or

unwittingly been involved in the tortious acts of others, by either making or facilitating the

payments of these invoices. In effect, the plaintiff was alleging that the transactions were

fraudulent, and thus this amounted to theft. Costello J, as he was then, in the High Court

104, Peart J at [3] noted ‘the Court’s equitable jurisd iction to grant an order for disclosure of the identity of an

alleged wrongdo er finds its origin in Norwich Pharmacal Co. and ors v. Commission er of Customs and Excis e [1974] AC

133’. The pow er to g rant Norwich Pharmacal Orders is not sp ecifically m entioned in the current Rules of the

Superior Courts. McCarthy J in Meg aleasing UK Ltd (n 2) traced the origins of the pow er to grant relief b ack to

Rule 24 o f the Rules in the Schedule to the Supreme Court o f Judicature (Ireland) Act 1877.

5

Norwich Pharmacal Co v Customs and Excise Com missioners (n 1).

6

ibid 175.

7

Megaleasing UK Ltd (n 2).

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ibid 503.