Norwich Pharmacal Co v Customs and Excise Comrs

An innocent third party may be ordered to disclose the identity of a wrongdoer where, through no fault of its own, it became sufficiently involved in the wrongdoing to facilitate it. The jurisdiction does not extend to a mere witness or bystander.

Relief is discretionary. The court considers the strength of the applicant’s case, the third party’s relationship to the wrongdoing, whether the identity can be obtained elsewhere, the risk of injustice and any burden on the third party. Statutorily obtained information is not immune from disclosure unless legislation prohibits disclosure. Otherwise, the court balances confidentiality against the administration of justice. Goods imported in infringement of a patent are not prohibited goods under section 44 of the Customs and Excise Act 1952.

The appellants owned and licensed a patent for furazolidone. Published import statistics indicated that unlicensed consignments had entered the United Kingdom, but the appellants could not identify the importers. Customs records contained their names and addresses.

Graham J held that no substantive cause of action lay against the commissioners but ordered limited disclosure: [1972] Ch. 566. The Court of Appeal reversed that order and dismissed the action. On the appeal in Norwich Pharmacal Co v Customs and Excise Comrs, the substantive infringement claim was abandoned. The central issues were whether an innocent third party involved in the relevant transactions could be ordered to identify the wrongdoers and whether statute, confidentiality or the public interest prevented disclosure.

1. Appeal allowed unanimously. Lord Reid formulated the central principle. A person who, through no fault of their own, becomes mixed up in the tortious acts of others so as to facilitate the wrongdoing may incur no personal liability, but may be required to assist the injured person by identifying the wrongdoers. Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Cross of Chelsea and Lord Kilbrandon reached the same conclusion. It was immaterial that the commissioners’ involvement arose from the performance of statutory duties rather than voluntary commercial activity.

2. The jurisdiction does not permit discovery against anyone who happens to possess useful information. A mere witness, spectator or bystander remains outside it. The commissioners were more closely connected: imported goods remained under customs control until clearance, and the importation could not be completed without the performance of their statutory functions.

3. Lord Cross identified matters governing the discretionary exercise: the strength of the claim against the unidentified wrongdoer, the relationship between that person and the respondent, the availability of the information elsewhere, and any burden that could not be compensated by expenses. Lord Reid added that disclosure should not be ordered where there was a substantial chance of injustice. Here the patent’s validity was accepted, infringement was overwhelmingly probable, the appellants lacked another practicable source, and the requested disclosure was confined to names and addresses.

4. The House rejected an absolute claim to confidentiality. Per Lord Morris, Viscount Dilhorne, Lord Cross and Lord Kilbrandon, information obtained under statutory powers may properly be treated as confidential in ordinary administration. In the absence of an express statutory prohibition, however, confidentiality does not prevent court-ordered disclosure required by justice. Section 3 of the Finance Act 1967 did not prohibit disclosure under a court order. The limited sensitivity of the information and the public interest in enabling redress outweighed the asserted risks to customs administration.

5. Lord Cross recorded, on the common understanding of the House, that patent-infringing imports were not goods imported contrary to a statutory prohibition under section 44 of the Customs and Excise Act 1952. The commissioners were therefore not required to forfeit them on that basis.

6. The commissioners were ordered to provide the agreed limited disclosure. They received their costs down to Graham J’s judgment because they had properly required a court order. There was no order for costs in the Court of Appeal or the House of Lords.

1. House of Lords: In Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133, the House unanimously allowed the appeal and ordered the agreed limited disclosure. The commissioners received their costs down to the first-instance judgment, with no order for costs in the Court of Appeal or the House.
2. Court of Appeal: Lord Denning MR, Buckley LJ and Roskill LJ allowed the commissioners’ appeal. They held that an independent discovery action could not lie without a substantive cause of action against the commissioners and that the public interest favoured confidentiality. The action was dismissed.
3. High Court: Graham J held that the commissioners had not infringed the patent and were not required to forfeit the goods, but ordered disclosure of the importers’ names and addresses: [1972] Ch. 566.