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Norwich Pharmacal relief in England and Gibraltar: availability of relief for the purposes of domestic and overseas proceedings – Elliott Phillips and Simon Everington

By Elliott Phillips & Simon Everington

Partner Elliott Phillips and Associate Simon Everington discuss the availability of Norwich Pharmacal relief in England and Gibraltar, in Offshore Red.

Elliott and Simon’s article was published in Offshore Red, May 2020.

Since the House of Lords case of Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, the English Courts have had the equitable jurisdiction, where it is a “necessary and proportionate response in all the circumstances” (per Lord Woolf CJ in Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033 at [36] and [57]), to order a respondent who is effectively “mixed up” in a piece of wrongdoing (but who, in most cases, is not likely to be a party to the proceedings) to provide the applicant with certain documents or information.

Originally, the courts’ jurisdiction was limited to ordering details relating to the identity of the “wrongdoer” or information that would help investigators to identify the wrongdoer.

However, the courts broadened that jurisdiction in later cases to cover specific information without which the applicant could not allege liability (Axa v Natwest [1998] PNLR 433; Carlton v VCI [2003] EWHC 616 (Ch)) and information regarding whether a legal wrong had been perpetrated at all (P v T [1997] 1 WLR 1309).

The interpretation of the English Courts’ jurisdiction to grant a Norwich Pharmacal Order has continued to evolve and, although subsequent cases have refined aspects of the test, the commonly cited conditions are set out in the case of Mitsui v Nexen Petroleum [2005] 3 All ER 511, in which Lightman J stated at [21]:

i) “a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;

ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and

iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the wrongdoer to be sued.”

Norwich Pharmacal Orders granted to help in English civil proceedings…

…when the respondent is outside the jurisdiction

Although the procedure for applying for and obtaining Norwich Pharmacal Orders in domestic disputes in England and Wales is well established, it is more complex in the international context.

The English courts have, on rare occasions (e.g. in Lockton Companies International v Persons Unknown [2009] EWHC 3423 (QB), Sabados v Facebook Ireland [2018] EWHC 2369 (12 June 2018)), granted permission to serve Norwich Pharmacal applications on respondents who based themselves in foreign jurisdictions. However, the courts are understandably wary of doing so in cases where it might infringe the sovereignty of other states.

In the case of AB Bank Ltd v Abu Dhabi Commercial Bank PJSC [2016] EWHC 2082 (Comm), Teare J set aside a Norwich Pharmacal Order against a bank in the United Arab Emirates on the basis that none of the “jurisdictional gateways” set out in Practice Direction 6B that would have permitted the application to be served out of the jurisdiction applied.

Instead, an applicant is likely to have more success in obtaining the relief if the respondent, although based abroad, has a branch inside the jurisdiction (see, for example, Credit Suisse Trust v Banca Monte Dei Pasche Di Siena [2014] EWHC 1447 (Ch)). If that is not the case, a prospective applicant may do well to consider local law and procedure for assistance.

…when the wrongdoer is outside the jurisdiction

A court may also grant a Norwich Pharmacal Order when the wrongdoer is, or is believed to be, in a foreign jurisdiction and a wrong has taken place there (see, for example, Smith-Kline and French Laboratories Ltd v Global Pharmaceutics Ltd [1986] RPC 394, Jade Engineering (Coventry) Ltd v Antiference Window Systems Ltd [1996] FSR 461).

Norwich Pharmacal Orders granted to help in foreign civil proceedings

The granting of Norwich Pharmacal Orders to assist in foreign civil proceedings requires closer examination.

In principle, the English courts do have jurisdiction to make Norwich Pharmacal Orders in relation to documents that are subsequently used in foreign civil litigation (see, for example, United co Rusal Plc v HSBC Bank Plc [2011] EWHC 404 (QB), Omar v Omar [1995] 1 WLR 1429).

Indeed, in his judgment in Shlaimoun and another v Mining Technologies International Inc [2011] EWHC 3278 (QB), Coulson J confirmed that when a Norwich Pharmacal Order is granted it may be taken as including the court’s implied consent that the documents obtained pursuant to the Norwich Pharmacal Order may be relied upon in subsequent foreign proceedings (as long as the possibility of such foreign proceedings has been made known to the court).

However, this is not the case if a civil matter is subject to the regime set out in the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the “English Act”), by which a foreign court may ask for evidence for the purposes of proceedings in that jurisdiction. In reaching the decision in Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 (Comm), Flaux J found that the English Parliament had intended for the English Act to govern such disclosure to the exclusion of the courts’ jurisdiction to grant Norwich Pharmacal relief where the regime of the English Act applies.

Recent offshore developments

In the case of K&S v Z&Z BVIHCM(COM) 2020/0016 that recently went before the British Virgin Islands Commercial Court, the judge deviated from the English decision in Ramilos. Although the BVI’s Evidence (Proceedings in Foreign Jurisdictions) Act 1988 adopts the same terms as the English Act, the BVI judge found that it was highly unlikely that the BVI House of Assembly intended for the BVI Act to prohibit the availability of Norwich Pharmacal Orders to help people in foreign litigation. He therefore concluded that the BVI courts do have jurisdiction to provide Norwich Pharmacal relief for the purposes of overseas proceedings.

Such relief is already available in some other offshore common-law jurisdictions such as Guernsey, where the Royal Court has granted Norwich Pharmacal relief for the purposes of civil proceedings in various other jurisdictions (see, for example, the case of Equatorial Guinea (President) v Royal Bank of Scotland International).

Norwich Pharmacal relief in Gibraltar

As with the courts in England and other common-law jurisdictions, Gibraltar’s Supreme Court has the jurisdiction to grant Norwich Pharmacal Orders to help people in domestic civil proceedings.

As for granting Norwich Pharmacal relief in support of foreign proceedings, Gibraltar, like the BVI, also adopts the same terms as the English Act in the Evidence Act 1948 (the “Gibraltar Act”). However, in the case of Secilpar v Fiduciary Trust [2003-2004] Gib LR 463, Gibraltar’s Court of Appeal determined that there is jurisdiction to grant Norwich Pharmacal relief in support of foreign proceedings by applying the constraints contained in section 17 Civil Jurisdiction and Judgments Act 1993 (Gibraltar’s equivalent of England’s section 25 Civil Jurisdiction and Judgments Act 1982). More specifically, the Court of Appeal found that it was desirable in cases of international fraud and other cases involving serious civil wrongs to make a Norwich Pharmacal Order to support the proceedings in the foreign court.

Time will tell whether other offshore jurisdictions will follow the approach taken in the likes of the BVI, Guernsey and Gibraltar or will instead follow the more restrictive regime in England.

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