Campaign Against Arms Trade v BAE Systems Plc

The Norwich Pharmacal jurisdiction may require an innocent third party to disclose information where it has become involved in, and facilitated, an arguable wrongdoing. Receipt of confidential information may be sufficient involvement where it advances the wrongdoer’s purpose, particularly where the recipient reads, retains, circulates or redacts the material. Involvement is only a threshold requirement. Relief remains discretionary and must be a necessary and proportionate response, having regard to all the circumstances, including the applicant’s resources, urgency, alternative practical sources and countervailing interests. Exhaustion of every possible avenue is not an absolute precondition. Disclosure may be ordered as a necessary precursor to intended public law proceedings. The order should remain confined to the specific wrongdoing and information for which necessity and proportionality are established.

The applicant, an organisation campaigning against the arms trade, sought Norwich Pharmacal relief against the respondent, an arms manufacturer. A confidential email containing privileged legal advice about proposed judicial review proceedings had been leaked to the respondent, which returned a redacted copy but declined to disclose how it had obtained the email or who had seen it.

The applicant argued that disclosure was necessary to identify and stop the source of the leak before issuing the proposed judicial review. The respondent disputed wrongdoing, involvement, necessity and proportionality, and challenged the jurisdiction to continue an earlier protective costs order. The court had to determine whether the Norwich Pharmacal jurisdiction was engaged, the appropriate extent of disclosure, and whether the protective costs order could be revisited without an application to vary or discharge it.

1. Norwich Pharmacal jurisdiction. The court was satisfied that an arguable wrong had occurred. The wrong could consist of breach of confidence, breach of contract, breach of fiduciary duty, or unlawful use of or interference with computer facilities.
2. Involvement. The respondent was an innocent third party, but was more than a mere bystander or witness. Its receipt of the email was part of the wrongdoer’s plan. The respondent had read the email, become privy to tactical legal advice, retained and circulated copies internally, and returned a redacted version which concealed information capable of identifying the wrongdoer. Those matters facilitated the wrongdoing.
3. Necessity and proportionality. Involvement merely triggered the jurisdiction. Relief had to be necessary and proportionate in all the circumstances. The applicant’s urgent need to protect privileged communications and commence proposed judicial review proceedings, its limited resources, the failure of its independent enquiries and the absence of any particular countervailing interest established necessity. The applicant was not required to exhaust every conceivable avenue where other avenues were impracticable.
4. Extent of relief. Disclosure was ordered concerning the leaked email, related documents and routing information, including reasonable steps to reconstruct deleted material, together with correspondence and an affidavit. Disclosure was to exclude material protected by the respondent’s legal professional privilege. A wider order for other confidential information was refused because suspicion of historic infiltration did not establish a sufficient evidential foundation and the wider order exceeded what was necessary and proportionate.
5. Protective costs order. The court declined to determine the merits of the earlier protective costs order because no application to vary or discharge it had been made and the applicant had relied upon it in pursuing the application. The court nevertheless held that the order had been within jurisdiction, having regard to section 51 of the Supreme Court Act 1981, section 4 of the Courts and Legal Services Act 1990 and the CPR.
6. Norwich Pharmacal relief was granted to the extent indicated, with the protective costs order continued. Further submissions were required on the final form of the order.