The Growth of Norwich Pharmacal Orders: Part I – An Evolving Litigation Tool

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4 September 2021

A Norwich Pharmacal order (NPO) is generally used to discover the identity of a wrongdoer from a third party. It is an exception to the rule that discovery can only be sought when proceedings are closed. Proceedings are instituted against the third party for the sole purpose of obtaining an order identifying the unknown wrongdoer. An NPO typically directs the third party to disclose information to the applicant about the wrongdoer’s identity.

In Ireland, a party seeking an NPO must establish a very clear and unambiguous case of wrongdoing (see Megaleasing UK Ltd v Barrett (No. 2) [1993] 1 I.L.R.M. 49) and proof of wrongdoing in respect of each element of the tort complained of (O’Brien v Red Flag Consulting Limited [2015] IEHC 867).

NPO’s and emerging technologies

The NPO arose out of a UK decision in Norwich Pharmacal v Customs and Excise Commissioners [[1974] AC 133. It has developed in recent times to suit our increasingly digital world. With remarkable foresight in 2002, Lord Woolf commented on the use of NPOs in Ashworth Hospital v MGN Limited [2002] UKHL29:

“New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy.”

Earlier this year, the Irish High Court granted an NPO to an American businessman to assist him trace stolen cryptocurrency, a portion of which had found its way to an account hosted by the Irish based defendant, Coinbase Europe Limited.

Another recent application initiated by the Health Service Execution (HSE) against Chronicle Security Ireland (Chronicle), concerned data and confidential material obtained by “parties unknown” in a cyber-attack on the HSE. The HSE was granted an NPO which required Chronicle to provide subscriber details of persons who uploaded and downloaded the confidential material taken in the cyber-attack to its malware analysis service “VirusTotal”.

Further development

There is scope for the use of NPO’s to evolve further. In Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Limited [2021] IEHC 287, the applicant school sought an order to compel Facebook to identify those behind an Instagram account. The account allegedly published objectionable content relating to individuals and events at the school. Unusually, the school sought the NPO for the purpose of disciplinary or pastoral action, rather than to initiate legal proceedings against any individual.

As this was an uncommon application, not alleging illegality, the High Court proposed referring several questions to the ECJ to clarify points of law in this area:

Whether there is an implied right under Charter of Fundamental Rights of the European Union to post material anonymously on the internet.

What is the proper threshold for granting a NPO and whether it is necessary to establish a “strong prima facie case” of tortious wrongdoing and an intention to pursue legal proceedings; and
Whether a potentially affected person should be provided an opportunity to make submissions anonymously to the court as to whether the order sought should be made
The school has since withdrawn its application. Although the substantive questions remain unanswered, the proposed referral demonstrates a possibility that NPO’s use may evolve beyond current restraints of a clear case of wrongdoing and an intention to pursue legal proceedings.

Costs

Third party businesses innocently involved in the alleged wrongdoing will be understandably nervous about the costs associated with complying with or defending NPO applications. Orders regarding costs are fact dependent, but it appears the court will have regard to how parties defend the application. This is illustrated by contrasting the cases of Parcel Connect Ltd v Twitter [2020] IEHC 279 and Blythe v The Commissioner of An Garda Síochána [2019] IEHC 854.

In Parcel Connect, the defendant refused to reveal the identity of the user of the offending account without a court order. Nonetheless, it maintained a neutral position by not specifically challenging the NPO application. The court made no order as to costs of the application or the disclosure. However, in Blythe, the defendant mounted a robust defence to proceedings, with the court commenting:

“unfortunately, it is not clear to [the court] why the defendant has opposed this application so vigorously or indeed at all”

On this basis, the court awarded the costs of proceedings, including the motion, in favour of the plaintiff. The court observed that:

“as regards the costs of making the disclosure, the case for costs in making disclosure are stronger where the requested party doesn’t object to the order, because there must be some incentive to parties to come to terms at an early stage”.

Essentially, had the defendant agreed to disclosure of the limited information requested, he might have had a case for recouping the costs involved in making the disclosure. However, the court made no order as to costs of disclosure.

Future

Developments in the use of NPO’s as a litigation tool against a background of fast moving technological advancements will continue. The flexibility of the NPO and the pragmatic approach of the Irish Courts to their use is evident in recent cases.

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See Part 2 of this article here – The Growth of Norwich Pharmacal Orders: Part II – The High Court Decision in Portakabin v Google.

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