Oldknow v Evans

Norwich Pharmacal relief is an exceptional jurisdiction directed to identifying a wrongdoer from information within the respondent’s knowledge. It does not require a respondent to identify persons whom it merely reasonably believes to be responsible, or to provide a narrative and documents enabling the applicant to investigate possible defendants. Such relief may amount to an impermissible fishing exercise, particularly where innocent persons may be identified and harmed.

Pre-action disclosure is confined by CPR 31.16. It is unavailable where the requested documents are sought principally to discover whom to sue rather than to dispose fairly of anticipated proceedings, resolve the dispute or save costs.

The claimant sought disclosure from the Labour Party concerning the leak of an internal report and media briefing which she alleged defamed her and infringed her privacy and data protection rights. She sought Norwich Pharmacal relief and pre-action disclosure to identify those responsible for the leak.

The Labour Party had conducted an internal investigation and formed a view as to likely responsibility, but did not know conclusively who had carried out the leak. Other investigations remained ongoing, and individuals identified by the Party denied involvement. The central questions were whether the requested information and documents satisfied the Norwich Pharmacal possession condition and whether pre-action disclosure was desirable under CPR 31.16.

1. Norwich Pharmacal relief dismissed. The threshold conditions were considered by reference to the formulation in Collier v Bennett [2020] 4 WLR 115: an arguable wrong, the respondent being mixed up in it, possession or likely possession of information necessary to pursue the wrongdoer, and overall justice.
2. The possession condition was not satisfied. The essential purpose of the jurisdiction is to identify wrongdoers from the respondent’s own knowledge. It is not to require a party to identify those whom it reasonably believes, or who may have, committed the wrong. That would provide a list of possible culprits rather than identify the actual wrongdoer. The proposed order therefore amounted to fishing, applying the reasoning in Arab Satellite Communications Organisation v Saad Al Faqih [2008] EWHC 2568 (QB) and the warning against fishing approved in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.
3. The proposed narrative account and selection of documents were also an advance request for disclosure enabling the claimant to investigate and select potential defendants. They were not focused information necessary, or likely to be necessary, to identify the wrongdoer. The court rejected the suggestion that redactions or a collateral undertaking would cure the difficulty.
4. Alternatively, the overall justice condition was not satisfied. There was a real risk of identifying innocent individuals, exposing them to high-profile litigation, expense and stress. The competing privacy, confidentiality and data protection interests reinforced the conclusion that the exceptional remedy should not be granted. The factors identified in The Rugby Football Union v Consolidated Information Services Limited [2012] UKSC 55 were not a statutory checklist but informed a fact-sensitive assessment.
5. The claim for pre-action disclosure under CPR 31.16 was also dismissed. The rule permits disclosure of documents, not answers to questions. Although the threshold requirements in rules 31.16(3)(a) to (c) were satisfied, disclosure was not desirable under rule 31.16(3)(d). It would not fairly dispose of the anticipated proceedings, assist resolution or save costs, and was sought to identify persons whom the claimant wished to sue.

not stated in the judgment.