Blue Power Group Sarl & Ors v Eni Norge AS & Ors

A Norwich Pharmacal order is available where there is a good arguable case of wrongdoing, a need for information to enable lawful redress, and a respondent mixed up in the wrongdoing who can provide the information. The remedy is not confined to cases where court proceedings against the wrongdoer are intended. Necessity is assessed as a necessary and proportionate response in all the circumstances. The court must balance the applicant’s ability to investigate independently against the respondent’s ability to assist, the burden of the order, the strength of the wrongdoing case, and the risk of harm to innocent persons. A broad order requiring extensive enquiries will be refused where the alleged wrongdoing is weak, the respondent is no better placed than the applicant to identify the wrongdoer, and the burden is disproportionate.

The defendants applied within existing proceedings for information identifying the source of potentially privileged documents found in the claimants’ possession. The underlying action concerned alleged breaches of contract, confidence and database rights arising from a proposed compressed-natural-gas project. The defendants also sought inspection, delivery up or deletion, but those matters were agreed in principle.

The claimants argued that a separate originating process was required, that there was no need for disclosure because existing proceedings were underway, and that the jurisdiction could not assist where foreign proceedings might follow. The central issues were whether the jurisdictional conditions were satisfied and, if so, whether a broad information order should be made.

1. Jurisdiction and procedure. The court rejected the argument that a separate originating process was required. Existing proceedings provided a formal procedural vehicle, and insisting on a separate claim would be form over substance, particularly where the respondents had full notice of the application.
2. Foreign redress. A Norwich Pharmacal order is not unavailable merely because one possible form of redress may involve foreign legal proceedings. Lawful redress may include internal investigation, dismissal or disciplinary action, and the applicant need not intend to sue the wrongdoer.
3. Threshold conditions. The conditions are a good arguable case of wrongdoing, a need for information to enable action against the ultimate wrongdoer, and a respondent who was mixed up in and facilitated the wrongdoing and is able or likely to provide the necessary information. The necessity condition concerns whether the information is needed to enable action; the wider question whether action should be taken informs the discretion.
4. On the evidence, the case of wrongdoing concerning the in-house documents was very weak. The claimants’ explanation that confidential information was routinely exchanged was unanswered. The defendants knew the identity of the person who transmitted one document, and the remaining evidence did not show that the claimants were better placed to identify other sources.
5. Discretion. The court balanced the weakness of the wrongdoing case, the defendants’ incomplete internal investigation, the claimants’ limited ability to assist, the risk of exposing innocent persons to disciplinary action, the minimal risk of further leakage, and the disproportionate burden of the proposed order. The order sought would require extensive retrospective enquiries and was refused. The court also declined to compel a lesser order because the defendants had not identified sufficiently precise further steps and the parties’ misunderstanding about possible co-operation had been resolved.
6. Disposition. The application was dismissed. The agreed arrangements concerning inspection, delivery up and deletion were not disturbed.

First-instance decision. No prior appellate decision is stated in the judgment.