Rowland & Anor v Stanford

A Norwich Pharmacal order may be made against a respondent who is more than an innocent facilitator, including a person alleged to have participated in or benefited from wrongdoing. The jurisdiction can protect against threatened or further wrongdoing, not only support an intended claim against the ultimate wrongdoer.

The applicant must establish the Arguable Wrong, Mixed-Up In and Possession conditions before the court considers whether disclosure is an appropriate and proportionate response in the overall interests of justice. Where the respondent is the only realistic source of information about unidentified recipients, an alternative remedy such as pre-action disclosure will not necessarily displace Norwich Pharmacal relief.

The privilege against self-incrimination requires a real and appreciable risk of prosecution. It does not ordinarily protect pre-existing documents whose production is independent of a compelled testimonial obligation.

The claimants sought Norwich Pharmacal relief concerning an electronic archive containing a large body of emails from the First Claimant’s personal account. They alleged that the archive had been obtained without authority, supplied to the defendant, and disseminated or used by him and unidentified third parties.

The defendant opposed disclosure on several grounds. He argued that the claimants should pursue a substantive claim or pre-action disclosure, relied on the public interest in exposing alleged fraud, challenged their clean hands, and invoked privilege against self-incrimination.

The central issues were whether the Norwich Pharmacal conditions were satisfied, whether the remedy was inappropriate because other procedures might be available, and whether privilege justified refusing information or documents.

1. Relief granted. The court ordered imaging of the archive, production of communications concerning its supply and dissemination, and an affidavit addressing the circumstances of receipt and dealings with third parties.
2. The court adopted the four-part framework in Collier v Bennett: a good arguable case of a legally recognised wrong; involvement in or facilitation of that wrong; possession or likely possession of information needed to pursue the ultimate wrongdoer; and an appropriate and proportionate response in the overall interests of justice. The first three are threshold conditions, although the strength of the arguable wrong may inform the overall justice assessment.
3. The defendant’s possible involvement in the wrongdoing did not make Norwich Pharmacal relief inappropriate. The jurisdiction is not confined to wholly innocent participants. X Ltd v Morgan Grampian (Publishers) Ltd showed that the remedy may be available where the recipient of confidential information and its source are joint tortfeasors.
4. Mitsui & Co Ltd v Nexen Petroleum UK Ltd was distinguished. Its essential point was that information should ordinarily be sought from an identified prospective defendant rather than an innocent third party where both could provide it. Here the defendant was the only person able to provide information about unidentified third-party recipients.
5. The claimants had a good arguable case that confidential personal data had been taken without authority. The defendant had received and sought to use the archive, and was therefore mixed up in the wrongdoing. He possessed information relevant both to historic wrongdoing and to preventing further misuse. Public-interest issues might arise in a later application to restrain use of particular material, but did not prevent present identification of what had happened to it.
6. The clean-hands objection failed. The doctrine is limited to misconduct having an immediate and necessary relation to the equity sought. The possibility that proceedings might later be brought against the defendant did not justify refusing relief.
7. Privilege against self-incrimination required assessment of whether there was a real and appreciable risk of prosecution, and the relevant offence should be identified. Given the uncertainty and the defendant’s position as a litigant in person, the affidavit obligation was qualified by a proviso permitting refusal where provision of information was likely to incriminate him, subject to the consequences of wrongful refusal.
8. Following JSC BTA Bank v Ablyazov, the privilege did not extend to pre-existing documents coming into existence independently of any compulsory order. The requested communications were therefore ordered to be produced separately from the affidavit obligation.