Pharmacy2u Ltd v The National Pharmacy Association

Pre-action disclosure is an unusual remedy. The court must first decide whether there is a real prospect that disclosure would fairly dispose of anticipated proceedings, assist settlement or save costs. If that threshold is met, the court must exercise its discretion on all the circumstances, including the nature of the loss, the clarity of the issues, the documents sought and the applicant’s ability to formulate its case without disclosure.

Disclosure under CPR 31.16 concerns proceedings against the respondent, not proceedings intended against third parties. Information enabling claims against third parties may instead fall within the Norwich Pharmacal jurisdiction. Even where that jurisdiction’s conditions are met, relief remains exceptional and discretionary. Proportionality, the availability of an adequate claim against the primary wrongdoer and the risk of bypassing a determination on the merits are material considerations.

Pharmacy2u Ltd, the owner of the PHARMACY2U EU trade mark, alleged that the National Pharmacy Association had infringed the mark by circulating a notice to its pharmacy members and publishing it online. It sought the members’ names and contact details by pre-action disclosure under CPR 31.16 and by Norwich Pharmacal relief.

The information was said to be needed to assess dissemination and damage and to enable correspondence with, or possible claims against, individual members. The court considered whether the statutory conditions and discretionary requirements for pre-action disclosure and Norwich Pharmacal relief were satisfied.

1. Pre-action disclosure. The conditions in CPR 31.16 were considered in two stages. First, there had to be a real prospect that disclosure would fairly dispose of anticipated proceedings, assist resolution without proceedings or save costs. Secondly, the discretion had to be exercised on all the facts. Relevant considerations included the nature of the loss, the clarity of the issues, the nature of the documents, any pre-action protocol or inquiries and the applicant’s ability to advance its case without disclosure: Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 W.L.R. 1562.
2. The reference in rule 31.16(3)(d) to anticipated proceedings meant proceedings against the respondent to the application. It did not extend to proceedings against other persons. Disclosure intended to identify potential claims against the NPA’s members was therefore outside the rule, although it could in principle be sought under the Norwich Pharmacal jurisdiction.
3. Even on the assumption that the dissemination was infringing, disclosure was neither necessary nor desirable. The NPA was the primary alleged wrongdoer and there was no suggestion that it could not meet any damages award. P2U did not need to join the members to obtain effective relief against the NPA. Claims against 3,202 members for minor acts of infringement would be disproportionate and an inappropriate use of court resources. There was also a serious risk that threatening individual members would secure compliance without a judicial determination of the underlying dispute.
4. Norwich Pharmacal relief. The three threshold conditions identified in Mitsui v Nexen Petroleum [2005] EWHC 625 (Ch) were satisfied or arguably satisfied: an arguable wrong, a need for information to identify potential defendants and the respondent’s involvement and ability to provide the information. The absence of innocence on the part of the person mixed up in the wrongdoing did not prevent relief. However, the remedy remained exceptional and discretionary: Ramilos Trading Limited v Buyanovsky [2016] EWHC 3175. The same proportionality and merits-related concerns justified refusing relief.
5. The combined application notice was not dismissed for being brought under Part 23 rather than by Part 8 claim. In the circumstances, that was the proportionate and cost-effective course. The application was dismissed.