EUI Limited v UK Vodaphone Limited

Norwich Pharmacal disclosure is available only where an arguable wrong has occurred, the information is needed to pursue the ultimate wrongdoer, and the respondent is sufficiently mixed up in the wrongdoing to be more than a mere witness.

A person does not become engaged with a wrong merely by supplying technology that could facilitate deception or by possessing records capable of proving what happened. A mobile telephone service provider holding location data is therefore a mere witness where its service did not draw it into the alleged fraud. Privacy rights concern the discretionary exercise of the jurisdiction, not its existence.

An insurer suspected that a policyholder and his mother had made false representations about the parents temporarily leaving their home. The insurer sought mobile telephone and cell-site records which might establish the mother's location during the relevant period.

HH Judge Sephton QC, sitting as a deputy High Court judge, refused Norwich Pharmacal relief. He held that the mobile service provider was a mere witness and therefore outside the jurisdiction. The insurer appealed, contending that mobile telephony had facilitated the alleged deception and made the provider more than a witness.

The central issue was whether supplying the mobile telephone service sufficiently engaged the provider with the alleged wrong to permit Norwich Pharmacal disclosure.

1. Appeal dismissed. The mobile telephone service provider was a mere witness to the alleged fraud and was not susceptible to Norwich Pharmacal disclosure.

2. The jurisdiction described in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 requires more than possession of information identifying or providing evidence against a wrongdoer. The respondent must be mixed up in, or sufficiently engaged with, the wrong so that it is more than a mere witness or metaphorical bystander. Participation or facilitation is the usual means by which this threshold is crossed, although the underlying inquiry is whether the respondent's engagement with the wrong takes it beyond the position of a witness.

3. Providing a mobile telephone service did not draw the provider into the suspected deceit or conspiracy. The customer's ability to pretend that she was elsewhere did not alter that conclusion. Although the provider's records might help establish her whereabouts, its position was analogous to that of neighbours, another observer, or a security company whose cameras incidentally recorded unlawful conduct by a householder. Each would possess evidence without being engaged in the wrong.

4. The insurer's asserted need for stronger evidence before pleading deceit did not change the provider's status. In any event, the insurer already possessed evidence of inconsistent accounts and potentially excessive payments. Nor could concern that the suspected wrongdoers might devise an explanation after receiving notice enlarge the clear limits of the Norwich Pharmacal jurisdiction.

5. Article 8 privacy rights concern the exercise of the court's discretion once jurisdiction exists, rather than the existence of jurisdiction. The deputy judge had adopted that approach.

6. If substantive proceedings were commenced, disclosure might potentially be obtained from the provider under rule 31.17 of the Civil Procedure Rules 1998, provided it was necessary to dispose fairly of the claim. That possibility did not justify pre-proceedings disclosure under the Norwich Pharmacal principle.

Lewis LJ and Francis J agreed with Baker LJ.

1. Court of Appeal (Civil Division): The insurer's appeal was dismissed by [2021] EWCA Civ 1771. The mobile service provider was a mere witness and fell outside the Norwich Pharmacal jurisdiction.

2. High Court, Queen's Bench Division, Manchester District Registry: HH Judge Sephton QC, sitting as a deputy High Court judge, refused the insurer's application for Norwich Pharmacal disclosure. No neutral citation is stated.