Hulley Enterprises Limited & Ors v White & Case LLP & Ors

A Norwich Pharmacal order is an exceptional discretionary remedy. The applicant must show arguable wrongdoing, necessity for disclosure to obtain legitimate redress, and that the respondent was mixed up in the wrongdoing and can provide the necessary information. Flexibility in the remedy does not remove those requirements.

Relief against lawyers acting for an alleged wrongdoer requires particular caution, especially where the lawyers are innocent respondents. The court may refuse relief where the material is already before the relevant proceedings, where the applicant does not seek to restrain its use, or where the application is better addressed to the court determining the underlying dispute.

The claimants sought delivery up of an electronic archive and documents derived from it, together with information and identification orders under the Norwich Pharmacal jurisdiction. They alleged that the archive had been unlawfully obtained and supplied to the Russian Federation, which used some documents in arbitral-award enforcement and set-aside proceedings.

The defendants were the Russian Federation’s English solicitors, an individual partner and a Dutch lawyer who had provided expert evidence in English enforcement proceedings. The claimants did not allege dishonesty or substantive wrongdoing by the defendants. The issues were whether delivery up or Norwich Pharmacal relief was justified and whether England and Wales was the appropriate forum for the claim against the Dutch lawyer.

1. Disposition. The claim was dismissed. No order for delivery up, Norwich Pharmacal relief, identification of the journalist or information about other persons involved with the archive was made.
2. Delivery up. The defendants did not possess the archive or any substantial subset of it. The court accepted their evidence and searches. The eight additional documents held by D3 were held only in connection with his professional duties as a Dutch lawyer. The claimants’ position that the documents already deployed did not belong to them, and that they did not seek to interfere with the Russian Federation’s use of them, substantially undermined any claim to confidentiality against the defendants.
3. Norwich Pharmacal jurisdiction. The jurisdiction requires an arguable wrong, necessity for disclosure to enable proceedings or other legitimate redress, and a respondent mixed up in the wrongdoing who can provide the necessary information. It remains flexible, but is exceptional because it interferes with the rights of innocent third parties. Relief against lawyers acting for an alleged wrongdoer is especially rare and requires compelling circumstances. The relevant wrongdoing is ordinarily that of persons other than the respondent; criticism of what an innocent respondent should have done does not itself establish entitlement to relief.
4. The claimants’ concern about further deployment of documents was a matter for the courts determining the fraud and enforcement proceedings. They could invite those courts to require disclosure or production of the material. The English court therefore found that Norwich Pharmacal relief was inappropriate in the circumstances.
5. Jurisdiction over D3. D3 remained a necessary and proper party, but England and Wales was not clearly and distinctly the most appropriate forum. His role in the English enforcement proceedings was marginal, while the claim concerned documents held in the context of his continuing professional role in the Dutch proceedings.