Hickox v Dickinson & Anor

The Norwich Pharmacal jurisdiction may be used where the applicant establishes a good arguable case that a legally recognised wrong has occurred, even though the precise wrongdoer or cause of action cannot yet be identified. The application must nevertheless have a realistic evidential basis and must not be speculative or wide-ranging.

The applicant must also show that the respondent facilitated the alleged wrongdoing, possesses or is likely to possess information needed to pursue the wrongdoer, and that disclosure is an appropriate and proportionate response. Confidentiality, delay and possible limitation defences do not necessarily defeat relief where the information is essential and the competing interests favour disclosure.

The claimant alleged that an impressionist painting had been stolen by Timothy Sammons and subsequently sold. She sought information from an art-dealer company and its director concerning the painting’s location, possession, transactions and purchasers.

The company accepted that it had acted as agent for the purchaser and that it was likely to hold the requested information, but resisted disclosure on grounds including confidentiality, delay and the absence of an identified wrongdoer other than Sammons. The claimant relied principally on conversion, and alternatively on bailment, unjust enrichment, fiduciary wrongdoing and equitable tracing.

The central issue was whether the conditions for Norwich Pharmacal relief were satisfied and whether an order should be made against the company and its director personally.

1. Relief granted in part. A Norwich Pharmacal order was made against the second defendant, subject to confidentiality and use undertakings. No order was made against the first defendant personally.
2. The court adopted the four conditions stated in Collier v Bennett [2020] EWHC 1884 (QB): a good arguable case of a legally recognised wrong; the respondent’s facilitation of that wrong; possession or likely possession of information needed to pursue the ultimate wrongdoer; and overall justice, requiring an appropriate and proportionate response.
3. The good arguable case requirement concerns the existence of wrongdoing as well as its merits. It does not require the applicant already to identify the precise wrongdoer or cause of action. But the case must have a realistic evidential basis. The jurisdiction cannot be used as a fishing expedition or for wide-ranging evidence-gathering.
4. The claimant established a good arguable case that Sammons had dishonestly sold or converted the painting without authority and that another person had purchased or taken possession of it. A subsequent possessor might therefore be liable in conversion, subject to any applicable exception to the nemo dat principle, including the Factors Act 1889. The possible defence, and limitation issues under the Limitation Act 1980, were matters for trial and did not defeat the application.
5. The alternative claims in bailment, unjust enrichment, knowing receipt, dishonest assistance and related fiduciary wrongdoing were insufficient. They depended on notice, knowledge or dishonesty by third parties, for which the evidence was speculative.
6. The second defendant was plainly mixed up in the transaction and uniquely able to provide the information. Confidentiality and delay did not outweigh the claimant’s interest in pursuing a realistic claim, particularly where no specific prejudice from delay was shown.
7. The first defendant was not shown to be personally mixed up in the wrongdoing, and it was unnecessary to order him to provide information as an agent of the company. The alternative equitable tracing jurisdiction described in Bankers Trust Co v Shapira [1980] 1 WLR 1274 was unnecessary and, in any event, its stronger evidential threshold and usual dissipation requirement were not met.

First-instance decision. No earlier decision in the same proceedings was stated.