Norwich Pharmacal Relief: expansion of conditions to include "proper purpose"

Earlier this month, in Green v CT Group Holdings Ltd [2023] EWHC 3168 (Comm), the High Court held that Norwich Pharmacal Relief will only be granted where it is satisfied that, in addition to the widely recognised conditions, the application is made for a “proper purpose”. 

The facts

Linda Green (the Claimant) applied for a Norwich Pharmacal Order to obtain evidence from CT Group Holdings Ltd (the Respondent). The Claimant sought disclosure of the source of certain documents, in relation to ongoing proceedings in Jersey and Guernsey to which the Claimant was party. She argued that the Respondent was able to identify wrongdoers who had allegedly fabricated evidence intending to cause her prejudice in the Channel Island proceedings.

The test

A Norwich Pharmacal Order is a type of disclosure order which compels the respondent (a third-party) to disclose certain documents or information to the applicant. The legal principles derive from the 1974 House of Lords decision in Norwich Pharmacal Co. & Others v Customs and Excise Commissioners and the conditions to the grant of such an order have been refined over time. They were recently summarised in Collier v Bennett [2020] EWHC 1884 (QB) as follows:

1. the applicant must demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person (the Arguable Wrong Condition);
2. the respondent must be mixed up in, so as to have facilitated, the wrongdoing (the Mixed Up In Condition);
3. the respondent must be able, or likely able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued (the Possession Condition); and
4. requiring disclosure from the respondent must be an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction (the Overall Justice Condition).¹

In Green, the judge applied the above test from Collier, but commented that the formulation did not adequately consider the “issues that arise where the issues go beyond domestic proceedings”.² In particular, he was critical that this formulation did not properly take account of the decision in R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 and the resulting line of cases. 

The judge said that the Omar line of cases establishes that Norwich Pharmacal relief is not available to obtain evidence for use in foreign civil proceedings, or in connection with foreign criminal proceedings or a criminal investigation. That is because there are exclusive statutory schemes for obtaining evidence in such circumstances.³ For foreign civil proceedings, the relevant statutory scheme is set out in the Evidence (Proceedings in Other Jurisdictions) Act 1975.

To incorporate the Omar line of authority, the judge thus proposed that a fifth condition be added to the test in Collier.

• Is the application made for a legitimate purpose (the Proper Purpose test)?⁴

This condition would be used to exclude applications where the purpose was to seek information which in fact should be sought under a relevant statutory scheme.

Application of the test

The judge stated in this case that the effect of Omar is that “where the purpose of the Norwich Pharmacal application is to obtain evidence for use in foreign civil proceedings, or in connection with criminal proceedings or a criminal investigation being carried on outside the United Kingdom, the court has no jurisdiction to make a Norwich Pharmacal order because the exclusive remedy is under the respective statutory scheme”.⁵ This focuses the Court on the question: for what purpose is the Norwich Pharmacal order being sought and is it proper? If the Court is concerned with a multi-jurisdictional case with limited connections to England then the applicant’s purpose will be of increased importance, and it will be a harder test to meet. Equally, where there is a statutory scheme which provides a remedy then that will be the exclusive remedy and the Norwich Pharmacal jurisdiction will be ousted.

The judge stated that it would not be a proper purpose to seek the information for civil proceedings abroad and held the Claimant’s purpose was therefore illegitimate. The application was dismissed. He held that the Claimant had failed to demonstrate how the case was connected to this jurisdiction (other than the residence of CT Group) and that if the Claimant’s intention had been to bring proceedings against the CT Group in England then the application would have needed to be framed very differently (and should have been brought as an application for pre-action disclosure pursuant to CPR 31.16). In addition, he held that the Claimant had not satisfied the Overall Justice Condition.⁶

Significance of the decision

While it is interesting that the court is proposing an additional limb of the test for Norwich Pharmacal relief, this will not preclude applicants seeking Norwich Pharmacal Relief in multi-jurisdictional cases. Indeed, the Court has recently made service of such orders out of the jurisdiction easier through the creation of a new specific gateway in paragraph 3.1 of Practice Direction 6B. 

The important thing for such applicants will be to frame their application carefully in a way that demonstrates that a proper purpose is served by the making of such an order. The Court will consider the reasons why the application is sought and in multi-jurisdictional cases with more limited connections to England this question will come under greater scrutiny. In particular, it seems likely the applicant will need to show that it contemplates bringing proceedings against the ultimate wrongdoer in England using the information it seeks.

As a potentially significant addition to the test for Norwich Pharmacal relief, it is possible that this suggested change will be subject to appeal or may be further refined through subsequent consideration. It will be interesting to see whether appellate courts go on to endorse this new statement of the test.

¹ Green v CT Group Holdings Ltd [2023] EWHC 3168 (Comm) [18]. That summary was adopted by the Privy Council in Stanford Asset Holdings Ltd v Afrasia Bank Ltd (Mauritius) [2023] UKPC 35, which we discussed in our previous article "English Court will grant civil remedies notwithstanding parallel criminal proceedings". 
² Ibid [19].
³ Ibid [44].
⁴ Ibid [54].
⁵ Ibid [44].
⁶ Ibid [73].