Norwich Pharmacal Orders

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What is a Norwich Pharmacal Order?

A Norwich Pharmacal Order is named after the leading case which introduced the remedy to seek a disclosure where documents are in the possession of a third party.  More information about them can be found in our superb Takeaway resource hub.

A Norwich Pharmacal Order should not be sought against someone who is likely to be a party to a subsequent claim or any potential witness or connected individual. 

Why seek a Norwich Pharmacal Order?

You may find yourself in a situation where you are seeking a remedy to a dispute but do not have the necessary evidence to support your claim. Or you may be a prospective defendant whose defence would be greatly assisted by information in the control of a third party (who does not want to hand it over or may possibly destroy it). 

• without this information, your claim or defence may fail or you may be unable to persuade your opponent of the strength of your case, with commercially damaging consequences.
• it is of course important to engage in a conversation well before a claim is threatened or issued at Court.  Our team can help you with this.

Opting for a discreet process

In a similar manner to an application for a Freezing Order or other injunctive relief, an application for a Norwich Pharmacal Order can be made ‘without notice’ – ie so that the third party holding the information isn’t made aware of it beforehand.

• the person, company or partnership from whom you are seeking the information is not informed about your application until after the Norwich Pharmacal Order is obtained at a Court hearing. 
• this allows you to progress the application quicker (as you do not need to wait for a response) and in secret, reducing the chances that an unscrupulous respondent might destroy the information you are seeking.

The Norwich Pharmacal Order, like a Freezing Order, will put the receiving party on notice of the criminal consequences of not complying (or otherwise undermining the purpose of the Norwich Pharmacal Order) and can include a gagging order, preventing the respondent from telling anyone about the application or the disclosure sought.

Flexibility of a Norwich Pharmacal Order

A Norwich Pharmacal Order can be made in conjunction with other remedies such as an application for a freezing order.

This is particularly helpful when you are concerned that the NPO may lead to a loss of property or assets which can be enforced against, or where the claim or defence is sensitive in nature.

Norwich Pharmacal Order’s and Technology

Norwich Pharmacal Orders are particularly prevalent in cases which surround activity on the web, where there is more risks of commercial and criminal wrongs being perpetrated with relative anonymity.

• if you believe you are a victim of fraud and have only had contact with the alleged wrongdoer via a website, information on your opponent may be very difficult to obtain without the website’s assistance.
• A Norwich Pharmacal Order may require a website to disclose your opponent’s company details, address, location or any information to assist you with a claim that you wish to bring.  Without an Norwich Pharmacal Order, in such circumstances such a claim is likely to be useless and a waste of money.   

Risks to Applicant

It is important to note that when applying for an Norwich Pharmacal Order, the applicant has a duty of ‘full and frank disclosure’ meaning you must tell the Court everything, even information which will hurt your case.  

Additionally, as with applications for Freezing Orders, a condition of a Norwich Pharmacal Order may be that the applicant undertakes to pay the respondent’s costs and losses arising as a result of the Norwich Pharmacal Order, if it emerges that the applicant wasn’t entitled to the Norwich Pharmacal Order.

Where an undertaking is required, the Applicant will need to prove to the Court they have sufficient funds to pay any such potential losses.  

I have been served with an Norwich Pharmacal Order; can I challenge it?

There are several grounds upon which you can challenge a Norwich Pharmacal Order, including

• where it potentially contravenes human rights laws or where the respondent can show that the applicant didn’t disclose to the Court something important.
• where the applicant making the Norwich Pharmacal application was not entirely innocent.

It may also be possible to challenge the Norwich Pharmacal Order if the information disclosed is potentially incriminating or subject to a duty of confidentiality or privilege.

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Norwich Pharmacal Orders: An overview

Evidence is a presentation of information in support of or in response to a claim and is a requirement of most forms of commercial litigation, whether it is based on

• a testimony from a witness or expert on specific matters;
• documentary information; or
• other sources of information (including photographic, video or recorded information). 

These requirements are essential before you go to Court and put forward your position to someone who comes as a stranger to such matters (i.e., the judge), to assist them to reach a fair and accurate judgment based on the information before them.

This is equally important for claimants as it is for defendants, both of whom need to prove their case in order to persuade the judge as to what should be a fair and equitable judgment.

• sometimes this information is already in your possession and can be presented in the proceedings (subject to certain restrictions on Without Prejudice communications);
• alternatively, it may be in your opponent’s possession and it either needs to be requested before you provide evidence in support of your claim or defence (a process called disclosure).
• On other occasions, you may face an opponent who you suspect has not fully disclosed all the relevant information, in which case you may need to apply to the Court for an order for Specific Disclosure. 

Where the information is unavailable to you or your company personally and is not (or no longer) in the possession or control of your opponent, then you have a problem – the information may be an urgent requirement to stop something happening or may be required to stop stumbling in to a legal claim that should never have been started had you had the information up front.

Where this information is in the possession or control of a third party, who is uninvolved in the proceedings, then in the absence of any voluntary agreement for them to provide such information you can apply to Court to compel them, by obtaining a Norwich Pharmacal Order.

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At Francis Wilks & Jones we have considerable experience of assisting clients, either as Claimant or as Defendant, regarding any aspect of applying for or responding to an Norwich Pharmacal Order. Contact us today if you are in need.

We instructed Francis Wilks & Jones to take over a very complex trade finance and invoice discounting fraud which had been perpetrated against us and which had been commenced by a large City law firm with whom we had grown dissatisfied.  The case involved a claim of over $20 million and the two defendants in the claim had gone to great lengths to cover up the fraud and hide the misappropriated funds.

We could not rate FWJ highly enough for their teamwork, dedication and legal and forensic expertise. We would highly recommend them for this type of work.