Nikitin & Ors v Butler Llp & Ors

Norwich Pharmacal relief is exceptional. It is not available merely to identify every person involved in alleged wrongdoing, refine a pleading, or obtain information that is already sufficient to commence effective proceedings. The applicant must show a genuine necessity for the information, including that it is vital to deciding whether to sue or to pleading the claim, and that it cannot reasonably be obtained from another source.

Pre-action disclosure under CPR 31.16 likewise requires the statutory conditions and a real prospect that disclosure will fairly dispose of anticipated proceedings, assist settlement, or save costs. Even where those conditions are met, the court retains a discretion. The ordinary disclosure process remains the primary route once proceedings are commenced.

The Applicants sought Norwich Pharmacal orders and pre-action disclosure against solicitors and private-investigation companies. They alleged that investigations into their personal and financial affairs involved unlawful access to personal data and misuse of confidential information.

The applications arose against the background of related Commercial Court proceedings concerning allegations of conspiracy to defraud and bribery. The Applicants had received redacted investigation reports and sought further information about the investigators, the methods used, and the dissemination of information.

The central issues were whether disclosure was necessary for Norwich Pharmacal purposes and whether the requirements of CPR 31.16 were satisfied.

1. The applications were dismissed. The Applicants already possessed sufficient information to bring claims against the Respondents, or to report the alleged conduct to the Information Commissioner. They knew the parties who had instructed the investigations, the solicitors involved, and the investigators who had carried them out.
2. Norwich Pharmacal relief requires the three conditions identified in Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625: arguable wrongdoing; a need for the order to enable proceedings against the ultimate wrongdoer; and involvement by the respondent in the wrongdoing together with the ability to provide the necessary information. The issue here was the second condition.
3. The requirement of necessity is not satisfied merely because the applicant wishes to obtain a complete account of the wrongdoing, identify every person who may have participated, or fine-tune a pleading. The purpose of the order is to enable action that could not otherwise effectively be taken. The jurisdiction remains exceptional, as explained in Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29.
4. Hughes v Carratu International Plc [2006] EWHC 1791 did not establish that Norwich Pharmacal relief is available whenever the information could be obtained through ordinary disclosure. That case concerned identification of the person who had instructed the enquiry agent. The present Applicants already knew the relevant prime movers and could plead their alleged wrongdoing without further information.
5. Under CPR 31.16, the Applicants had to show that the respondent was likely to be a party to anticipated proceedings, that the documents would fall within standard disclosure, and that pre-action disclosure was desirable to dispose fairly of the proceedings, assist resolution without proceedings, or save costs. Those requirements were not met. The proceedings could be fairly brought without further disclosure, settlement assistance was fanciful, and the applications were more likely to increase costs.
6. The court also declined to exercise its discretion to order disclosure. The Applicants could commence ordinary proceedings and obtain such disclosure as CPR 31.1 to 31.15 required. No different result was justified for Modus.