A Norwich Pharmacal order (NPO) allows a party to obtain information from a third party, typically to help identify a wrongdoer or uncover evidence of misconduct. An NPO can be sought against a third party whose identity is known and who has been involved in someway in the wrongdoing of a potential defendant. The information provided through an NPO often facilitates the applicant in pursuing a substantive claim against the wrongdoer. NPOs are especially valuable when dealing with issues like fraud, intellectual property infringement, or defamation.
An NPO is a powerful but narrow remedy. Applicants should carefully assess the necessity and proportionality of such orders to ensure they are pursuing the most appropriate legal steps. While an applicant does not need to have a definite intention to pursue legal action against the wrongdoer, the request for disclosure must serve a legitimate purpose. Such an application should be made to the extent necessary to support the intended claims. The court will not permit the NPO jurisdiction to be used for broad or indiscriminate disclosure. Instead, it is designed for focused disclosure of essential information.
The applicant must demonstrate that the information is necessary for taking action against the ultimate wrongdoer. If the same information can be obtained through other means, it will be difficult—if not impossible—to justify the need for an NPO. That said, the threshold for necessity is not high, and the remedy does not have to be a last resort.
To successfully obtain an NPO, the applicant must satisfy the court on several key elements. These conditions include the following:
- Arguable wrong: The applicant must demonstrate there is a valid case that an actionable wrong has been committed by the ultimate wrongdoer. The applicant must show the wrongdoing is more than barely arguable but does not need to prove a greater than 50% chance of success at trial.
- Mixed up in: The third party must be involved in the wrongdoing to the extent that they have facilitated the wrongful act in some way.
- Possession: The third party must be in possession of, or likely to possess, the information or documents necessary to identify or locate the ultimate wrongdoer.
- Overall justice: The court can only grant an NPO if it is necessary in the interests of justice. This will depend on the specific facts of the case. The request for disclosure must be appropriate and proportionate, considering the exceptional yet flexible nature of the jurisdiction. The court will balance factors such as:
- The purpose for which the order is sought
- The likely consequences of refusing the order
- Whether alternative remedies exist
- The potential benefits to the applicant versus the potential harm to the respondent
- The nature of the compliance required and whether it is likely to be burdensome
It is important to keep in mind that when applying for an NPO, the applicant must provide “full and frank disclosure.” This means presenting all evidence and arguments supporting the application, as well as any information that may be detrimental to their case. Failure to provide such disclosure can result in the NPO being overturned at a later stage. Additionally, the applicant is usually required to offer a “cross-undertaking in damages,” meaning that if the NPO is later found to have been improperly granted, the applicant must compensate the third party and other innocent parties who suffer harm. Applicants are also usually required to provide the third party with an indemnity to cover the costs associated with the application and compliance with the order. In cases where the information is straightforward to provide, the costs are typically not substantial.
How can we help?
If you’re considering a Norwich Pharmacal Order, consulting with a lawyer is crucial. We can help assess whether it is the right tool for your case, guide you through the application process, and make sure that the requirements are met to increase your chances of success. Contact us on 0800 652 8025 or send an enquiry.
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