Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd

A Norwich Pharmacal order is substantive relief requiring proceedings against the person from whom disclosure is sought. It is not merely ancillary to anticipated proceedings against an unidentified wrongdoer. Accordingly, unless the respondent is already a party to proceedings, the application must ordinarily be commenced by claim form, usually under Part 8, rather than by a free-standing application under Part 23. The fact that the application is expected to be uncontested, or that only one application is made, does not alter the procedural requirement.

Towergate applied without existing proceedings for pre-action disclosure under CPR rule 31.16 and for a Norwich Pharmacal order against Albaco. The application was made by a Part 23 application notice. Master Matthews permitted the pre-action disclosure application to proceed but directed that a claim form was required for the Norwich Pharmacal relief.

Towergate asked the court to reconsider that direction. The central issue was whether a free-standing Norwich Pharmacal application could properly be made under Part 23 without first issuing a claim form.

1. The application was refused in substance. Master Matthews confirmed that Towergate must use a claim form, ordinarily under Part 8, if it wished to seek the Norwich Pharmacal order.
2. Subject to statutory exceptions and cases concerning intended actions, an effective order against a person requires proceedings to have been started against that person or that person to have been joined to existing proceedings. CPR rule 7.2(1) provides that proceedings are started when the court issues a claim form.
3. A Norwich Pharmacal order is substantive relief. It obtains information enabling a claim against an unidentified third party to be brought, and is not ancillary relief in an intended action against the disclosure respondent.
4. Part 23 applications are designed to take place within existing claims governed by the integrated procedural code. A free-standing application would leave unresolved rules concerning service, responses, disclosure, court-file access, joinder, non-compliance and termination.
5. The Chancery Guide could not override CPR rule 7.2(1), since it was neither statutory nor judicial authority. Santander Bank plc v National Westminster Bank [2014] EWHC 2626 (Ch) had not decided the point; it had assumed that an uncontested Norwich Pharmacal application could proceed under Part 23 without discussing the relevant rules.
6. The court assumed, without deciding, that CPR rule 31.16 might constitute an implied statutory exception permitting pre-action disclosure without originating process. That assumption did not assist the separate Norwich Pharmacal application.