The law relating to Norwich Pharmacal Orders

AuthorDavid Culleton
PositionB.A. & LLB
[2021] Irish Judicial Studies Journal Vol 5(1)
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.
The Norwich Pharmacal Order is a powerful and versatile remedy that assists to identify
wrongdoers who seek to hide behind the mask of anonymity.
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.
A Norwich Pharmacal Order is a particular type of disclosure order where the only cause of
action is discovery.
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’.
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.
[1993] ILRM 497.
Brid Moriarty, Evidence in Civil Law - Ireland, (Lex Localis 2015) 23.
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
[2021] Irish Judicial Studies Journal Vol 5(1)
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.
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.
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.
Evidence of Wrongdoing
In Megaleasing UK Ltd,
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.
Norwich Pharmacal Co v Customs and Excise Com missioners (n 1).
ibid 175.
Megaleasing UK Ltd (n 2).
ibid 503.

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