Collier & Ors v Bennett

Norwich Pharmacal relief requires a good arguable case of a recognised wrong, a respondent mixed up in the wrongdoing, possession or likely possession of information needed to pursue the wrongdoer, and an overall assessment that disclosure is appropriate and proportionate. The first three conditions are thresholds. The jurisdiction cannot be used to discover whether a cause of action exists, but focused disclosure of deleted publications may be ordered where existing evidence establishes an arguable wrong.

A person who accepts liability for facilitating publication cannot thereby conceal another alleged tortfeasor. Access to justice ordinarily permits a claimant to identify and sue every alleged wrongdoer. Pre-action disclosure additionally requires the jurisdictional conditions in rule 31.16 and a favourable discretionary assessment.

The claimants alleged that an unidentified operator of an anonymous Twitter account had defamed and harassed them. They suspected that the defendant was the operator. The defendant admitted responsibility for and control of the account, possessed its deleted tweeting history and knew who had authored the tweets, but declined to identify the author.

The claimants brought Part 8 proceedings seeking Norwich Pharmacal relief identifying the account's users and disclosing deleted tweets. Alternatively, they sought pre-action disclosure under rule 31.16 of the Civil Procedure Rules 1998. The applications raised whether each claimant had shown an arguable civil wrong and whether focused disclosure was necessary, appropriate and proportionate.

1. The first and second claimants' narrowed applications succeeded; the third claimant's applications were dismissed. The first claimant's surviving traces of deleted tweets established a good arguable case that he had been accused of dishonesty, racism, fraud and supporting violence. The second claimant's evidence was weaker but sufficiently identified alleged accusations that she had dishonestly fabricated anti-Semitism claims for political and fiscal purposes. The third claimant's evidence was vague and non-specific.

2. The Norwich Pharmacal jurisdiction, preserved by rule 31.18 of the Civil Procedure Rules 1998, involved four conditions: an arguable wrong; the respondent's involvement in facilitating it; possession or likely possession of information necessary to pursue the wrongdoer; and an overall assessment of justice, appropriateness and proportionality. The first three were threshold conditions. A good arguable case required more than an honest and reasonable belief in wrongdoing, and the exceptional jurisdiction could not support a fishing exercise.

3. The proposed harassment claims did not satisfy the arguable-wrong condition. The evidence did not show conduct of sufficient gravity to sustain criminal liability under section 2 of the Protection from Harassment Act 1997, identify the number of abusive tweets, or address the competing Article 8 and Article 10 rights.

4. The involvement and possession conditions were admitted. The defendant had facilitated or authorised the tweeting, knew the author's identity and retained the deleted tweets. Overall justice strongly favoured relief. An admission of liability by one possible joint tortfeasor could not deprive victims of their right to identify and sue every alleged wrongdoer publicly. The narrowed request concerned readily recoverable, core publications and was neither onerous nor a fishing exercise.

5. The first and second claimants would also have obtained pre-action disclosure. They and the defendant were likely parties to subsequent proceedings; the confined tweets and related data would fall within standard disclosure; and disclosure had a real prospect of assisting fair disposal, compromise or cost saving. The same considerations justified the discretionary exercise.

6. The defendant was ordered to identify those who used the account and posted about the successful claimants between March 2018 and 9 July 2019. He was also to disclose the specified tweets and associated metadata and analytics. Whether compliance required a verifying witness statement was reserved for further submissions.

The claim was issued as Part 8 proceedings on 12 February 2020 and released by the Master for hearing by a High Court judge. No appeal or earlier merits decision is stated in the judgment.