Brady & Anor v PKF (UK) LLP & Ors

A Norwich Pharmacal order requires evidence of wrongdoing, the respondent’s involvement, necessity, and utility. The respondent’s involvement may be unwitting, and the court may order disclosure identifying those connected with the wrongdoing and delivery up of documents containing information derived from it.

Hearings are ordinarily public. Privacy requires exceptional circumstances and strict necessity. A third party whose interests are obviously affected by a Norwich Pharmacal application should be served or notified. Information obtained by subterfuge should not be used for any purpose, and documents evidencing reliance on it may require disclosure.

The claimants sought Norwich Pharmacal relief against an accountancy firm and one of its partners after the first claimant’s mobile telephone records had apparently been obtained by deception and passed to persons involved in an investigation concerning rival bids for the Olympic Stadium.

The defendants initially resisted disclosure on grounds of client confidentiality, but later admitted possessing copies of the records and agreed to a limited order. The interested party, which had engaged the defendants, sought an adjournment and raised objections to wider disclosure. The court determined whether the hearing should be private, whether the interested party should have been notified, and the proper scope of the disclosure and delivery-up orders.

1. Open justice. The application for a private hearing was refused. The principles stated in R v Legal Aid Board ex parte Kaim Todner [1999] QB 966 and R (Binyam Mohammad) v SSFCA [2011] QB 218 required exceptional circumstances and strict necessity. Concern about reputational embarrassment or inaccurate reporting was insufficient.
2. Norwich Pharmacal relief. Following Norwich Pharmacal v Commissioners for Customs and Excise [1974] AC 133 and Ashworth Hospital [2002] 1 WLR 2033, the necessary elements were wrongdoing, involvement of the respondent, necessity, and utility. All four were established. The involvement need not be knowing or culpable. The defendants were therefore ordered to provide identifying information and deliver up copies of the records and documents containing information derived from them.
3. Notice to affected third parties. The interested party should have been served or at least notified because its interests were obviously affected. The court relied on Frankson v Home Office [2003] 1 WLR 1952 and Flood v Times Newspapers Ltd (Berezovsky intervening) [2009] EMLR 18. The hearing on contested parts of the order was accordingly adjourned for six days.
4. Scope of disclosure. Every document referring to or relying on the wrongfully obtained records had to be provided, even where the reference was slight. Legitimate commercial sensitivity could justify redaction of unrelated material, but the court warned that widespread redactions would attract suspicion. The defendants could retain one copy of documents they had created.
5. The court also observed that an assumption that anonymously received records could be used without notifying the subject or authorities was manifestly incorrect. Orders were made in the agreed additional terms, with costs reserved.