Summary
The Norwich Pharmacal jurisdiction is not confined to cases in which the respondent participated in or facilitated the original wrongdoing. The essential distinction is between a mere witness or bystander and a person whose engagement with the wrongdoing makes it just to require disclosure. The court may assess involvement flexibly. Investigatory bodies may therefore fall within the jurisdiction where their engagement goes beyond merely possessing relevant information, including by notifying apparent victims, providing limited information and accepting in principle that fuller disclosure should be made. Disclosure must remain necessary and proportionate. Case-management powers cannot create a new jurisdiction for third-party disclosure, but may be used to administer a lawful Norwich Pharmacal regime efficiently.
Factual background
The claimants were existing or potential victims of alleged phone hacking by journalists working for News Group Newspapers Ltd. They sought disclosure from the Metropolitan Police Service of information obtained during police investigations, including material concerning the existence, extent and perpetrators of alleged hacking.
The police did not oppose the proposed disclosure regime, but News Group Newspapers Ltd argued that the court lacked jurisdiction and that the orders were in any event inappropriate. The application relied variously on Norwich Pharmacal principles, CPR 31.17 and case-management powers. The central questions were whether the police were sufficiently involved in the wrongdoing to attract Norwich Pharmacal relief and whether the proposed managed disclosure procedure was lawful and proportionate.
Held
- Jurisdiction. CPR 3.1(2)(m) does not create a free-standing power to order third-party disclosure where no existing jurisdiction permits it. CPR 31.17 likewise presupposes an application by a party to existing proceedings and could not justify the proposed pre-action Part 2 disclosure. Section 34(2) of the Senior Courts Act 1981 confirms that statutory limitation.
- Norwich Pharmacal threshold. The authorities are best understood as distinguishing a mere witness or bystander from a person who is sufficiently engaged with the wrongdoing to owe a duty to assist. Participation or facilitation are common examples, but they are not exhaustive labels. The jurisdiction is flexible and must not be treated as a rigid formula.
- The MPS was more than a mere witness. It had acquired the information through its public investigative functions, had informed apparent victims that they had probably been victims, had supplied limited information while indicating that further material existed, and did not oppose fuller disclosure under an appropriate regime. Taken together, those matters were sufficient to bring the MPS within the jurisdiction.
- The information was necessary because victims could not properly assess whether they had a claim, plead it meaningfully or evaluate settlement without it. Disclosure at an earlier stage was proportionate. Confidentiality concerning other victims and the integrity of investigations could be protected by undertakings and redactions.
- The court could manage the relief through the existing managed litigation. It could dispense with separate originating processes and individual applications where the respondent waived that requirement and the regime was an effective, proportionate means of avoiding repetitive applications.
- The disclosure orders were made, subject to provision for payment of the MPS’s reasonable costs of complying with each request.
The court’s approach to earlier authorities
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Appellate history
First-instance application in the High Court. No appellate decision is stated in the judgment.
Key cases cited
10 authorities cited.
- The Rugby Football Union v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) [2012] UKSC 55
- Ashworth Security Hospital v MGN Limited [2002] UKHL 29
- Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133
- Omar & Ors, R (on the applicatiom of) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA Civ 118
- The Nolan Family Partnership v Walsh [2011] EWHC 535 (Comm)
- Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 31-07-2009) [2008] EWHC 2048 (Admin)
- Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch)
- AOOT KALMNEFT v. DENTON WILDE SAPTE [2002] 1 Lloyd's Rep 417
- Axa Equity and Law Life Assurance Society Plc v National Westminster Bank [1998] CLC 1177
- Ricci v Chow [1987] 1 WLR 1658
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Cases citing this case
7 later cases · 5 positive · 2 caution
Most senior citing decisions:
- EUI Limited v UK Vodaphone Limited [2021] EWCA Civ 1771 applied
- Cancrie Investments Limited Sarl v Zulfiqur Al Tanveer Haider [2024] EWHC 3087 (Comm) applied
- Baroness Lawrence of Clarendon OBE v Associated Newspapers Limited [2023] EWHC 2789 (KB) applied
- Richard (Raziel) Davidoff & Ors v Google LLC [2023] EWHC 1958 (KB)
- Stephanie Rebecca Hayden v Associated Newspapers Limited & Anor [2022] EWHC 2693 (KB)
- Zenith Insurance Plc v LPS Solicitors Ltd [2020] EWHC 1260 (QB)
- Blue Power Group Sarl & Ors v Eni Norge AS & Ors [2018] EWHC 3588 (Ch)
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