ORB A.R.L & Anor v Fiddler & Anor

Norwich Pharmacal relief requires an arguable wrongdoing, involvement by the respondent beyond that of a mere witness, and disclosure that is necessary and proportionate for a legitimate purpose. The applicant must identify the intended use of the information in evidence. The jurisdiction cannot be used to obtain material principally for a collateral litigation advantage, such as attacking an opponent’s credibility or forcing settlement. On a without notice application, the applicant must make full and frank disclosure of all material facts and make proper inquiries. Serious cumulative failures justify discharge of the order and may also preclude its re-grant.

The claimants obtained without notice Norwich Pharmacal orders requiring the defendants to preserve and deliver telephones and records and to provide information concerning an alleged scheme involving hacking, false allegations and attempted blackmail. The orders were made to identify persons allegedly responsible and to support possible recovery of money paid during the events.

The second defendant applied to discharge the order. The court considered failures of full and frank disclosure and whether the information was sought for a legitimate purpose. The same grounds applied to the order against the first defendant.

1. Disposition. The Norwich Pharmacal orders against both defendants were discharged and were not re-granted.
2. Full and frank disclosure. On a without notice application, the applicant must make a full and fair disclosure of material facts, assessed by the court, and must make proper inquiries. Important adverse matters must be specifically drawn to the judge’s attention. It is insufficient that they are merely present somewhere in the papers. The court retains a discretion after non-disclosure, but the breaches here were sufficiently serious and numerous to justify discharge and to preclude re-grant: [36], [46], [81].
3. Jurisdictional requirements. The court stated three threshold conditions: an arguable wrong by an ultimate wrongdoer; disclosure necessary to enable legal proceedings or other legitimate redress; and involvement by the respondent distinguishing him from a mere witness. Necessity is a threshold requirement. Disclosure must be a necessary and proportionate response, although the remedy need not be one of last resort: [82]-[88].
4. Legitimate purpose. The applicant must identify the intended purposes of disclosure in evidence, because the court must scrutinise the proposed use and may restrict use to those purposes. The claimants failed to provide the required evidential statement. The evidence instead showed that the information was sought principally to discredit Mr Ruhan and obtain leverage in the main action. That collateral purpose did not engage the policy of enabling a person to vindicate legal rights and was not a legitimate use of the jurisdiction: [91]-[105].
5. The court also considered the non-exhaustive discretionary factors relevant to Norwich Pharmacal relief, including the strength of the contemplated claim, the public interest in vindicating rights, alternative sources of information, the respondent’s involvement, confidentiality, privacy and data-protection interests. The application failed at the necessity and legitimate-purpose stage, and independently because of the serious non-disclosure: [89]-[90].

This was a first-instance application in the Commercial Court. Earlier Norwich Pharmacal and related orders had been made in connected proceedings, including orders of Walker J, but no appellate decision is stated.