Filatona Trading Limited & Anor v Quinn Emanuel Urquhart & Sullivan UK LLP

A Norwich Pharmacal order may be granted where the applicant shows a good arguable case of a legally recognised wrong, involvement by the respondent, possession or likely possession of information, and that disclosure is an appropriate and proportionate response in the overall circumstances.

The applicant need not show that disclosure will itself identify the ultimate wrongdoer. A realistic prospect that it will assist identification is sufficient. Lawyers are not automatically mere witnesses; their involvement depends on the facts. Litigation privilege protects communications, not information or identity divorced from communications, unless disclosure would reveal their content or litigation strategy.

The claimants sought Norwich Pharmacal relief against their opponents’ solicitors. They sought identification of a business intelligence consultancy and relevant personnel who had obtained and supplied a Russian-language report later deployed in section 68 arbitration proceedings.

The claimants alleged that the report was forged and had been used to seek a substantial increase in the valuation payable to the opposing parties. The solicitors resisted disclosure principally on grounds of insufficient involvement, lack of possession, litigation privilege, confidentiality, delay and the risk of harm to innocent persons. The central issues were whether the Norwich Pharmacal conditions and the overall justice condition were satisfied.

1. Relief granted. The claimants established all three threshold conditions and disclosure was a necessary and proportionate response in the circumstances. The order was granted in the terms of paragraphs 11.1 and 11.2 of the Part 8 claim form, but not paragraph 11.3.
2. Arguable wrong. There was a strong arguable case that the report was a forgery designed to deceive the court and an arbitral tribunal. The possible wrongs included conspiracy, malicious falsehood, perverting the course of justice and criminal contempt. A civil claim was not essential; disciplinary or criminal redress could suffice.
3. Involvement. The respondent had been actively involved in receiving, translating, investigating and deploying the report in litigation. A person need not have facilitated the wrongdoing in a narrow sense. Some involvement is sufficient, with its nature and extent relevant to the overall justice assessment. Lawyers are not automatically mere onlookers or witnesses.
4. Possession and necessity. The information sought was in the respondent’s possession and could realistically assist in identifying the ultimate wrongdoer, even though a further application might be needed against the consultancy. Necessity does not mean that Norwich Pharmacal relief must be a remedy of last resort.
5. Privilege. The identity of the consultancy and relevant personnel was not privileged. Privilege attaches to qualifying communications and secondary evidence revealing their content, not to facts or identity divorced from communications. Disclosure would reveal neither privileged content nor litigation strategy, and there was no need to rely on the iniquity exception.
6. Overall justice. The seriousness of the arguable wrongdoing, the public interest in vindicating legal rights, the absence of another source, the prospect of deterring similar wrongdoing and the lack of reliable evidence of present-day harm outweighed confidentiality, delay and other objections.

First-instance decision. No prior appellate decision concerning this claim is stated in the judgment.