Arab Satellite Communications Organisation v Al Faqih & Anor

A Norwich Pharmacal order is directed to obtaining information which will identify a wrongdoer, not to speculative fishing for possible defendants. Disclosure of a small pool may exceptionally be ordered, but the court must be satisfied that there is no substantial chance of injustice to those named. Where disclosure would probably identify only some possible wrongdoers, leaving innocent persons exposed to a serious breach of confidence, the jurisdiction is not justified. Confidentiality undertakings may be insufficient where disclosure would make effective proceedings impracticable and enforcement of the undertaking uncertain.

The claimant alleged that the defendants’ political broadcasts had been transmitted without authority through the claimant’s satellites. It sought an order requiring disclosure of the identities of persons involved in arranging the broadcasts. The application was made on a Norwich Pharmacal basis, treating the defendants as innocently mixed up in wrongdoing by others.

Master Eyre ordered disclosure of the identity of anyone who was or might have been involved in the arrangements. The defendants appealed against the words “or may have been”. The claimant cross-appealed against the limitation to broadcasts via the claimant’s satellites.

1. Appeal allowed; cross-appeal dismissed. The order was varied by removing the words “or may have been” and retaining the limitation to arrangements involving the claimant’s satellites.
2. A Norwich Pharmacal order ordinarily requires disclosure of information which identifies the wrongdoer. It does not confer a general licence to seek information which merely may assist in identifying a claim or defendant. The present application differed materially from the usual case because the information would identify a group of possible wrongdoers, not the person responsible for the alleged trespass.
3. An order identifying a small pool of potential wrongdoers might in principle be available, especially where other information would enable the claimant to distinguish the wrongdoer from innocent persons. Such relief is at the limits of the jurisdiction and requires the court to be satisfied that there is no substantial chance of injustice to those named.
4. The evidence did not establish that the alleged wrongdoer would be among all persons identified, or that the claimant could distinguish that person from innocent past sponsors. Disclosure would therefore expose persons who might have acted lawfully to a serious breach of confidentiality. The proposed undertaking restricting disclosure within the claimant organisation did not provide sufficient protection, and maintaining it would make proceedings or even properly threatened proceedings difficult.
5. The court reached its conclusion without relying directly on article 10 of the European Convention on Human Rights. It accepted that disclosure might have a chilling effect on political expression, but was not prepared, without further argument, to hold that article 10 was engaged where the publication was exclusively outside Convention territory. The judge also proceeded on the assumption that there was a good arguable cause of action, while noting that the underlying trespass issue was not open and shut.
6. The judgment did not bind the trial judge on any later application, since the circumstances might change after trial.

• High Court (Queen’s Bench Division): allowed the defendants’ appeal against Master Eyre’s order and dismissed the claimant’s cross-appeal. The separate costs appeal fell away.