Hughes v Carratu International Plc

Pre-action disclosure may be ordered where the applicant establishes an arguable claim and the statutory or Norwich Pharmacal conditions are satisfied. The applicant need not identify the ultimate wrongdoer before seeking information from a person mixed up in the alleged wrongdoing. At the threshold stage, the court may assess the evidence as a whole and need not accept bare assurances that no unlawful conduct occurred. The court may order disclosure where transparency best serves the interests of justice and proportionality, particularly where serious unlawful acquisition of personal information is reasonably suspected.

The Applicant sought disclosure from an investigation consultancy after the Information Commissioner’s Office informed him that documents containing details of his bank accounts had been seized from an enquiry agent. The documents appeared to connect the enquiry agent with the Respondent, which had been instructed by a law firm whose identity was unknown.

The application relied on CPR 25.1(1)(i), CPR 31.16 and the Norwich Pharmacal principle preserved by CPR 31.18. The Respondent accepted that the enquiry agent’s identity should be disclosed, but disputed disclosure of the instructing law firm’s identity and of documents. The central issues were whether the Respondent was likely to be a party to anticipated proceedings and whether the evidence established an arguable case of civil or criminal wrongdoing sufficient to justify disclosure.

1. Order made. The court ordered disclosure of the identity of the person or persons instructing the enquiry agent and the documents sought by the Applicant.
2. For CPR 31.16, the Applicant satisfied the requirement that the Respondent was likely to be a party to subsequent proceedings. The Applicant’s stated intention to sue everyone who had wronged him, together with the evidence and his means to bring proceedings, was sufficient. The Respondent accepted that the remaining relevant conditions were satisfied.
3. The court adopted the three conditions stated in Mitsui & Co Ltd v Neeun Petrolium UK Ltd: an arguable civil or criminal wrong by an ultimate wrongdoer; a need for the order to enable proceedings against that wrongdoer; and a respondent mixed up in the wrongdoing, who could provide information needed to identify or sue the wrongdoer.
4. The evidence established an arguable case against the Respondent and the unidentified law firm. The court was not required to accept their assurances of lawful conduct at face value. Their correspondence and witness statements lacked candour, and the Respondent eventually admitted receiving unlawfully obtained bank information.
5. The potential operation of the Data Protection Act 1998 supported the conclusion that an arguable claim existed. The identity of the data controller depended on the facts. It was arguable that the Applicant could obtain information about recipients and use of his personal data, and could have remedies including injunction, damages or compensation.
6. Any claim to legal professional privilege belonged to the lay client. No properly advanced claim had been made, and privilege could not be used at this stage to prevent the order. The limits of privilege where information was obtained by criminal means were relevant, as explained in Dubai Aluminium Co Ltd v Al Alawi.
7. Applying the guidance in Black v Sumitomo Corp, transparency was proportionate in circumstances suggesting a serious breach of criminal law, possible repeated conduct and uncertainty about whether the Applicant could otherwise identify those responsible.

First-instance application. The judgment records an earlier hearing on 12 July 2006 at which disclosure of the enquiry agent’s identity was ordered. The remaining issues were determined by this judgment.