Background on “Norwich Pharmacal” and similar jurisdictions
18.Another recent development is that claimants have sought to use what is known as the Norwich Pharmacal jurisdiction to apply to the courts for disclosure of sensitive Government-held information, usually to use in proceedings against third parties overseas. The jurisdiction takes its name from the case of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. This case involved unlicensed importation into the United Kingdom of a chemical compound called furazolidone for which Norwich Pharmacal owned the patent. Norwich Pharmacal was unable to identify the importers; the Customs and Excise Commissioners held information that would allow the identification of the importers but would not disclose it, claiming that they had no authority to give such information. The House of Lords held, in brief, that where a third party who had been mixed up in another’s wrongdoing had information relating to that wrongdoing, the court could, in its discretion, compel the third party to assist the person suffering damage or otherwise affected by the wrongdoing by giving them that information. This is now known as a Norwich Pharmacal order.
19.Thus a Norwich Pharmacal order is a remedy developed by the courts in England and Wales, under their inherent jurisdiction, with an equivalent jurisdiction in Northern Ireland. There is no equivalent jurisdiction in Scotland. The requirements for granting a Norwich Pharmcal order are generally recognised to be that (i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; (ii) the person against whom the order is sought must have been “mixed up” or involved in the wrongdoing, (iii) the information sought is necessary for the claimant to pursue redress or to rely on a defence in relation to proceedings concerning the wrongdoing and (iv) the court considers it should exercise its discretion in favour of granting the relief. Orders are commonly used to identify the proper defendant to an action or to obtain information to plead a claim.
20.In a more recent development (no fewer than nine times since 2008) Norwich Pharmacal applications have been made by individuals seeking to obtain disclosure of Government-held sensitive information. Often this has been sensitive intelligence information shared by foreign partner governments on a confidential basis.