Norwich Pharmacal Order: How To Identify A Defendant

What is a Norwich Pharmacal order?

Are you looking to pursue a defendant causing you harm but you don’t know the identity of the defendant?

However, you know that a third-party can help you identify the defendant you want to pursue.

How can you compel the third-party to disclose the defendant’s information to you?

In this article, we will look at the Norwich orders and show how you can use this legal remedy to identify a defendant, assess a cause of action or even trace assets.

Are you ready?

Let’s get started…

What is a Norwich Pharmacal order

A Norwich order is an order of the court against a third-party to a lawsuit to share documents or information.

A plaintiff may file a Norwich-type order to verify the existence of a cause of action against another party, to access documents and evidence or to trace assets.

Typically, a Norwich injunction is issued against a third-party who has been directly or indirectly involved in some activity or actions, with no fault of his own, that have caused prejudice to the plaintiff.

For example, a court may issue a Norwich order against a financial institution compelling them to disclose confidential banking information relating to a defendant who has fraudulently misappropriated funds.

The bank is a third-party to the lawsuit who may have information, documents or evidence enabling the plaintiff to identify the defendant or trace the misappropriated sums of money.

Often, a Norwich injunction is considered when the victim of a tortious act does not know the identity of its wrongdoers and will need a third-party’s assistance to obtain the intended defendant’s information.

History on the Norwich Pharmacal order

The case of Norwich Pharmacal is an interesting one.

This case involved Norwich Pharmacal Co. vs Customs and Excise Commissioners.

Norwich Pharmacal was the owner of chemical patents. 

It had become aware that its patents were infringed as they had discovered their chemical was imported into the UK.

However, it did not know the identity of its patent infringers or wrongdoers.

To access the names of the importers, Norwich Pharmacal took action against Her Majesty’s Custom and Excise Commissioner to compel it to disclose the name of the individuals or entities that had violated its patents.

Norwich Pharmacal’s action was based on a common-law procedure known as the “bill of discovery”.

In 1974, Lord Reid renders a judgment for the House of Lords granting Norwich Pharmacal’s application.

The court, in its judgment, states that if a person, with no fault of his own, gets caught up in tortious acts of others, he will not be responsible for the tortious act but comes under a duty to assist the other by giving him full information disclosing the identity of the wrongdoers. 

Norwich order test

For the court to grant a Norwich Pharmacal order, the plaintiff must establish several factors:

1. The plaintiff must demonstrate a valid and bona fide claim
2. Demonstrate that the third-party is involved in the acts alleged by the plaintiff against the defendant or intended defendant
3. Demonstrate that the plaintiff is unable to get the information from any other sources or the third-party is the only practical source of information
4. The overall interest of justice favours the disclosure of information by the third-party
5. Whether or not the third-party can be indemnified for the costs related to the disclosure of information

Every jurisdiction may have developed additional guidelines in successfully granting Norwich injunctions.

Norwich orders in Canada

In 1998, the Federal Court of Appeal issued the first Canadian Norwich-type of order.

The case involved Glaxo Wellcome PLC vs M.N.R. [1998] 4 C.F. 439 and the fact pattern was very similar to the original Norwich Pharmacal case. 

Similar to Norwich, Glaxo Wellcome owned patents it had strong reasons to believe were infringed.

It filed an action against a third-party, the Minister of National Revenue, to have them disclose the identity of the importers having violated their patents.

The court recognized that the Minister of National Revenue should assist the plaintiff in identifying the defendant so the plaintiff can pursue its action against them. 

Norwich orders in Quebec’s civil law

The Civil Code of Quebec does not contain any specific provisions authorizing the issuance of a Norwich-type order.

The Quebec courts will use their general powers to render an order that is just and equitable in the circumstances or incorporate common-law recourses in Quebec’s substantive law.

In 2013, the Quebec Court of Appeal, in the case Fers et Métaux Américains S.E.C. et als vs Picard et als confirms that Quebec courts may render Norwich-type orders when it is justified by the circumstances.

In the Fers et Métaux Américains S.E.C. case, the purpose for the issuance of a Norwich Pharmacal injunction was to allow the plaintiff to find and trace funds misappropriated by the defendants. 

The Quebec Court of Appeal also confirmed the Norwich test adopted in the Canadian common-law as the basis for issuance Norwich orders in Quebec.

Drafting a Norwich-type writ

An attorney should make sure to draft a writ or court petition in such a way as to clearly establish the grounds on which a Norwich order is being sought.

In addition to providing sufficient allegations to succeed on the Norwich test, an experienced litigation attorney will draft his motion with the following points in mind:

1. Demand the disclosure of evidence or information that is strictly required to identify the defendant or trace the assets
2. Be clear as to the time period the third-party is required to disclose information about the defendant
3. Provide sufficient guarantees to protect and safeguard the confidentiality of the information it receives from the third-party
4. Provide the name and identity of a third-party expert who may be mandated to collect the documents or information and prepare a court report
5. Provide the objective of why the information will be relevant to the plaintiff’s case
6. Be clear that the information can only be used for instituting legal proceedings and for no other reason
7. Provide any compensation or indemnity needed to the third-party to cover the costs in complying with a Norwich order

The more the writ is focused and clear, the more the court will have an inclination to grant the Norwich order.

In what type of cases to use Norwich orders

Norwich orders were initially developed in the context of patent infringement and intellectual property rights infringement cases.

Over the years, the Norwich remedy has been extended to other areas of the law such as tort, defamation, breach of contract, criminal offences, cyberbullying, fraud and so on.

With the development of technology and the Internet, many can commit fraud or cause prejudice to others while remaining anonymous or using pseudonyms. 

This is where Norwich orders can be effective.

Using a Norwich order, you can bring an action for discovery against a third-party to help you find the identity of a wrongdoer. 

You can use Norwich orders to:

1. Identify online users posting defamatory comments 
2. Identify individuals performing cyberbullying 
3. Evaluate whether or not a cause of action exists
4. Trace evidence 
5. Preserve evidence or property 
6. Get banking information in cases of fraud
7. Harassment by unknown individuals
8. Privacy complaints 

You can even combine a Norwich order with a Mareva order to not only identify the defendant but obtain a freezing order of the defendant’s assets.

This can be quite powerful in cases of fraud or misappropriation of assets.

Takeaways

A Norwich order is a court injunction ordering a third-party having information or documents allowing the identification of a defendant, a cause of action or tracing of assets.

Often, a Norwich order is sought when the identity of the defendant is unknown to the plaintiff.

For example, a competitor publishing prejudicial and damaging content online but it’s impossible to find out who is publishing such content.

A Norwich order may be sought against the Internet service provider or hosting provider to obtain the name of the defendant associated with an IP address or to an online post.

The Norwich order requires that you establish five criteria, known as the Norwich test:

1. Show you have a valid and bona fide claim
2. Identify the third-party who may have relevant information that you need
3. Show that getting the information from the third-party is the only practical way to get the needed information
4. Cover the costs for the third-party in complying with the order
5. The overall interest of justice favours the disclosure of information by the third-party

Once these elements have been established, a court may render a Norwich Pharmacal order.

Bear in mind that this type of remedy is exceptional and extraordinary.

The courts will not easily grant a Norwich order unless you have important and serious reasons to get such an award.

You should consult with an attorney in your jurisdiction who can guide you with respect to the specific guidelines and criteria you will need to observe in your domestic jurisdiction.

We hope this article enabled you to better understand a Norwich-type of order.

Have you been involved or heard of such an order before?

We would love to hear from you, drop us a comment!