UMBRELLA LEGAL SOLICITORS LIMITED v AFFIRM LEGAL LIMITED

A Norwich Pharmacal order is an exceptional remedy for obtaining necessary information about an arguable wrong. The applicant must establish an arguable legally recognised wrong, the need for the order, and that the respondent was mixed up in the wrongdoing and can provide the information. Necessity does not require the remedy to be one of last resort, but the order must be a necessary and proportionate response in all the circumstances.

The jurisdiction cannot be used for evidence gathering or to compel a witness statement verified by a statement of truth. Where the applicant knows the likely wrongdoers, has other practicable routes to information, or has rejected an offer of identification, necessity may fail. Even where the conditions are met, the court retains a discretion to refuse relief.

The claimant, a legal services company, alleged that text prepared for an unpublished website had appeared on the defendant’s website. The defendant removed the material and offered to identify the contractor who had supplied it in open correspondence, but declined to provide a witness statement verified by a statement of truth.

The claimant sought a Norwich Pharmacal order requiring identification of the contractor and permission to use the information in contemplated copyright and confidentiality proceedings. The issues were whether the claimant had shown an arguable wrong, whether the order was necessary, and whether relief should be granted in the court’s discretion.

1. The application was dismissed. The claimant had not established the first condition. Although identical wording had appeared on the defendant’s website, the evidence did not establish that the claimant owned the asserted copyright. There was insufficient evidence identifying the author of the words or demonstrating the relevant contractual allocation of copyright. The consultancy agreement relied on did not clearly cover the PCP finance material.
2. The claimant also failed to establish necessity. It had repeatedly identified Mr Malik as the likely wrongdoer and had narrowed the possible source to Mr Malik or HestaBit. That uncertainty did not prevent an application for pre-action disclosure under Civil Procedure Rules 1998 r 31.16 against one or both possible defendants.
3. The claimant had not first put its allegations to Mr Malik or HestaBit. Those were obvious steps which had not been exhausted. Further, the defendant had offered to provide the identity of the supplier in open correspondence. The claimant should have accepted that offer and then considered its position.
4. The jurisdiction supplies necessary information, not evidence. A witness statement verified by a statement of truth was not required for the information to perform its Norwich Pharmacal function. Evidence might later be obtained in proceedings against the wrongdoer, including by compulsion if necessary.
5. The court accepted that the third condition would have been satisfied if the first two conditions had been established. Nevertheless, applying the requirement that relief be a necessary and proportionate response in all the circumstances, the court would have refused the order in any event. The claimant had refused an adequate offer of identification and had not exhausted other means of obtaining the information.

First-instance decision. No appellate history was stated in the judgment.