An Explanatory Note: Norwich Pharmacal Orders and Defamation Claims

Since publishing my previous article entitled Online Defamation and Social Media, I wanted to expand on specific issues within a claim and possible ways that a court can assist. More and more enquiries are landing on my desk from a client who would like support in dealing with defamatory comments online. However we are also contending with our clients not knowing specifically who the wrongdoer is and how it affects a potential claim.

We sometimes suggest filing for a Norwich Pharmacal Order to be granted by a judge. A Norwich Pharmacal Order or an NPO is essentially the product of Norwich Pharmacal v Commissioners of Customs & Excise [1974] UKHL 6 and acts as a form of disclosure order which is made by a judge under the equitable jurisdiction of the court.

Of course, this explains nothing without understanding what is being disclosed. An NPO would normally been sought when there has been some type of wrongdoing against one party, but it is not actually known who the identity is of the person in the wrong. Still confused, well an example can be seen using the Norwich Pharmacal case. In Norwich Pharmacal, Customs & Excise had published information revealing that a number of shipments of a particular chemical compound (patented by Norwich Pharmacal) had been imported into the UK without a licence which would be a breach of Norwich Pharmacal patent rights. Norwich Pharmacal had no cause of action against Customs & Excise and sought disclosure of the names of the wrongdoers who had imported the patented compound. The House of Lords held that Customs & Excise were under a duty to disclose the information sought.

The prerequisites for obtaining an NPO are clear:

  1. There are no other relevant CPR provisions.
  2. The respondent is likely to have relevant documents or information.
  3. There is a good arguable case that there has been a wrongdoing.
  4. The “mere witness” rule is not infringed.
  5. The respondent is involved in the wrongdoing.
  6. The order is necessary in the interests of justice and is not sought for an improper purpose.

It is important to note that this type of order is usually obtained to assist in another legal claim such as defamation as in the Totalise plc v The Motley Fool Ltd [2001] EWHC 706 (QB). This case concerned the identity of a party who was posting defamatory material on a website, and certainly as the years have passed since this case, where the material is then shared through social media or a link to the website is posted on social media. Other examples of cases involving an NPO being requested are:

  1. To identify the full nature of the wrongdoing and enable you to plead your case;
  2. Obtain the source of information contained in a publication;
  3. To enable the victim of a wrongdoing to answer allegations made against him.
  4. Trace assets and proprietary claims;
  5. In aid of execution of a judgment and to enable the victim of a wrongdoing to answer allegations made against him.

It will also be no surprise that an NPO will often be sought against newspapers that receive and publish information after receiving documents in breach of confidence and the court then orders for the newspaper to reveal the identity of the source. An interesting case in this regard was X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 which also saw the claimant obtain a without notice injunction to prevent a magazine from publishing an article that had confidential information within it. This was on top of the request for the disclosure of the journalist’s notes that the claimant was hoping would identify the informant. It was held that the journalist and the publishers were within the Norwich Pharmacal principles, because it was to protect the claimant from other tortious dissemination of confidential information as well as being in the interests of justice.

All of the above is not overly helpful unless you know how to apply for an NPO and how much it costs. Depending on the circumstances, the application may be made under a Part 8 claim form or under CPR 23 which essentially is the filing of a form that outlines the claim including any evidence and usually in the form of a witness statement. If the NPO is sought to assist in an on-going claim there would be a different application filed, of which courts will assist in this process. For further support in understanding the procedure and particular issues that may accompany this, I suggest reading Santander UK plc v National Westminster Bank plc and other companies [2014] EWHC 2626 (Ch).

The cost of an NPO is different to a standard proceeding where the costs are paid to the party that wins. If an NPO is granted, then usually it is the applicant that will pay both the legal costs of the respondent and any costs incurred for the respondent to comply with the Order. Of course, this will not always be the case, especially in some instances such as in the Totalise case above where an applicant can be awarded some of its costs.

Lastly, if an NPO has been granted then the respondent will have it served on them in person and there must be allowances for any specific requirements with the NPO such as gagging orders etc.

The process has had some media attention over the years and can prove useful and is certainly necessary. See the following cases for further reference and do not hesitate to contact the office for further information or assistance on an NPO.

McAlpine v Bercow [2014] EMLR 3.

P v T Ltd [1997] 1 WLR 1309).

Monroe v Hopkins [2017] EWHC 433 (QB).

Patel v UNITE the Union [2012] EWHC 92 (QB).

Carlton Film Distributers v VCI plc [2003] EWHC 616 (Ch).

Orb arl v Fiddler [2016] EWHC 361.

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