Santander UK Plc v The Royal Bank of Scotland Plc & Ors

A Norwich Pharmacal order is an exceptional remedy, available only where disclosure is necessary to enable the claimant to enforce legal rights. A claim for restitution following a mistaken payment may, following a High Court decision, be treated as a sufficient wrong for the jurisdiction, although proprietary tracing claims are materially different from claims to recover a debt. Disclosure should be confined to the minimum information required. Ordinarily, that means the recipient’s name and postal address, not telephone numbers, email addresses or date of birth. The applicant must also show that it cannot identify or pursue the recipient by other reasonable means.

The claimant made three paper applications for Norwich Pharmacal orders against banks whose customers had received mistaken payments. The claimant sought the recipients’ names, addresses, email addresses, telephone numbers and dates of birth so that it could pursue restitutionary claims.

The applications had initially been refused. Subsequently, in Santander UK plc v National Westminster Bank and others [2014] EWHC 2626 (Ch), Mr Justice Birss granted similar orders and held that restitution could constitute a wrong for Norwich Pharmacal purposes. Master Matthews reconsidered the earlier applications in light of that decision, while addressing the proper scope of disclosure and the appropriate procedural route.

1. The applications were reconsidered. Master Matthews held that the earlier conclusion—that a restitutionary claim could not constitute a wrong for Norwich Pharmacal purposes—was inconsistent with the decision of Mr Justice Birss. Although he considered that decision flawed, judicial comity required him to follow it unless and until a different view was reached by a High Court judge or a higher court.
2. Bankers Trust distinguished. Bankers Trust v Shapira [1980] 1 WLR 1274 concerned tracing and recovering property in which the claimant asserted an equitable proprietary interest. That was materially more potent than a claim in personam for repayment of money. The case therefore did not establish that a mere restitutionary or unjust-enrichment claim justified a Norwich Pharmacal order.
3. Necessity controlled the scope of disclosure. The jurisdiction is exceptional because it invades privacy and burdens an innocent intermediary. The claimant needed the recipient’s name and postal address to commence proceedings. Telephone numbers, email addresses and dates of birth were unnecessary. The applicable test was necessity, not proportionality.
4. Further evidence was required. The claimant had to address whether its own customer was contractually obliged, or otherwise able, to assist in identifying the intended payee. Without that evidence it was difficult to establish that the claimant could not commence recovery proceedings by other means.
5. Procedure and safeguards. A renewed order would be limited to name and contact address, subject to an undertaking restricting use of the information to enforcing legal rights concerning the specified mistaken payment. Future applications should ordinarily be issued by claim form under Part 7 or Part 8, rather than by Part 23 application notice.