Rugby Football Union v Viagogo Ltd

A Norwich Pharmacal order may be granted where an applicant shows arguable wrongdoing, the respondent is mixed up in it, the applicant intends to seek redress, and disclosure is necessary to identify the wrongdoers. Redress need not take the form of substantial damages or legal proceedings. Where no realistic alternative exists, necessity and proportionality may coincide. Disclosure of limited personal data identifying arguable wrongdoers will generally be proportionate, provided the order is properly confined. The claimant need not redesign its operations to create another means of identification. Once necessity and proportionality are established, the discretion to grant relief is difficult to fault.

The Rugby Football Union sought a Norwich Pharmacal order against Viagogo Ltd, whose website had advertised tickets for Twickenham matches at prices above face value. The High Court, before Tugendhat J, found arguable contractual wrongs and trespass, accepted that Viagogo was mixed up in the conduct, and held that the RFU intended to seek redress and had no other realistic means of identifying the wrongdoers.

Viagogo appealed those conclusions and was retrospectively permitted to add a ground based on Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, the Data Protection Directive and the Data Protection Act 1998. The central issue was whether disclosure of names and addresses was necessary and proportionate.

The appeal was dismissed. Lord Justice Longmore gave the judgment, with Lord Justice Patten and Lady Justice Rafferty agreeing.

1. The court treated the five matters identified below as the relevant Norwich Pharmacal framework: arguable wrongdoing, involvement of the respondent, an intention to seek redress, necessity of disclosure, and the exercise of discretion. The RFU established each matter.
2. The ticketing conditions provided an arguable basis for contractual claims against distributors and transferees who resold tickets above face value. The terms also made cancellation and refusal of admission arguable consequences of unlawful resale. A person entering with such a ticket could therefore arguably be a trespasser, and the seller could arguably be jointly liable for inciting or encouraging the trespass. It was unnecessary to decide whether conversion had occurred. The reasoning was consistent with the analogy drawn from Said v Butt [1920] 3 K B 497.
3. The RFU’s proposed redress need not be limited to damages claims or legal proceedings. Injunctive relief, future enforcement, or exposing the conduct of the intermediaries could constitute adequate redress. The court relied on British Steel Corporation v Granada Television Limited [1981] AC 1096 as illustrating that redress need not involve litigation.
4. Necessity was established because the RFU had no realistic alternative means of discovering the identities of the sellers. It was inappropriate to require the RFU to abandon its existing distribution system and require personal identification at entry. The court applied the approach discussed in President of the State of Equatorial Guinea v RBS International [2006] UKPC 7.
5. The data-protection objection did not prevent relief. The Data Protection Act 1998 and the relevant European data-protection rules recognised that disclosure could be required by court order. Once arguable wrongdoing and the absence of any realistic alternative were established, disclosure of the limited data sought was proportionate. The order was confined to names and addresses. Viagogo’s terms were relevant to proportionality, although they did not necessarily amount to a waiver of confidentiality.
6. Since the order was necessary and proportionate, the judge’s discretion to grant it could not be faulted.

• Court of Appeal (Civil Division): Dismissed Viagogo’s appeal and granted retrospective permission to amend the notice of appeal. [2011] EWCA Civ 1585.
• High Court of Justice, Queen’s Bench Division: Tugendhat J granted a Norwich Pharmacal order requiring disclosure of information identifying persons advertising and selling the tickets.