Mohammed Al-Ajeel v Anglian Renewables Ltd

A Norwich Pharmacal disclosure application must form part of live proceedings, either an existing claim to which it relates or free-standing proceedings brought for disclosure. The respondent is “mixed up” in wrongdoing where its engagement of a subcontractor facilitated the alleged wrongdoing; the applicant need not show that the respondent actively participated in the negligent act. The court must separately assess the Norwich Pharmacal factors. Vexation from litigation against a different prospective defendant is not a relevant consideration for the respondent’s position. An appellate court may identify errors in the lower court’s balancing exercise but still dismiss the appeal where the lower court lacked jurisdiction to grant the application.

The appellant alleged that subcontractors engaged by the respondent negligently damaged his garden table while erecting scaffolding for a solar-panel installation. He had previously brought an unsuccessful claim against the respondent and sought disclosure of the subcontractors’ identities so that he could sue them in negligence.

The application was made within the earlier proceedings after those proceedings had ended. Recorder Rowlands refused it, principally on proportionality grounds. Permission to appeal was granted on the issue whether the requirements for Norwich Pharmacal relief were satisfied. The central issues were whether the respondent was sufficiently mixed up in the alleged wrongdoing and whether the court had jurisdiction to entertain the application without live proceedings.

1. Appeal dismissed. The Recorder’s decision was upheld, although the principal reason was different from the reasons given below.
2. The applicable Norwich Pharmacal factors, identified in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 and expanded in Collier v Bennett [2020] EWHC 1884, were whether there was a good arguable case of a legally recognised wrong, whether the respondent was mixed up in the wrongdoing, whether it could provide the information, and whether disclosure was appropriate and proportionate.
3. The respondent was mixed up in the alleged wrongdoing. It had engaged the scaffolders to carry out the relevant work, and the alleged negligence occurred while that work was being performed. That was sufficient facilitation. The test imposed a substantially lower threshold than proof that the respondent actively participated in, instructed, caused or encouraged the negligent act.
4. The Recorder wrongly treated the “mixed up” issue as part of the proportionality assessment. She also gave weight to possible vexation from further litigation, although any future claim would be against the subcontractors rather than the respondent. The existence of a possible second claim, and the availability of an eyewitness, also meant that the court could not conclude that the issues had necessarily already been decided.
5. Nevertheless, a Norwich Pharmacal application must be attached to live proceedings. It may be made within an ongoing claim or in free-standing proceedings brought for the purpose of obtaining disclosure. The former action had ended before this application was issued. The possibility of post-judgment enforcement applications did not assist, because this application was not needed to give effect to the judgment and was intended to facilitate proceedings against a different party.
6. The Recorder therefore had no jurisdiction to grant the application. The court’s observations on the merits were not binding on any future court considering a fresh application in free-standing proceedings.

• High Court (King’s Bench Division): Recorder Rowlands refused the Norwich Pharmacal application on 11 August 2023. Permission to appeal was refused on paper by Kerr J on 8 October 2024 and granted on renewal by Heather Williams J on 29 November 2024. The High Court dismissed the appeal.