In R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin), the English High Court reaffirmed the flexible nature of its Norwich Pharmacal jurisdiction to order disclosure of information and documents from third parties innocently caught up in wrongdoing, essential to assist parties to pursue their cases. Norwich Pharmacal relief is an important weapon in the fraud litigator’s armoury, with a whole host of uses, described below. In recent years, however, there has been a concern that its utility was becoming restricted by the Court imposing ever more barriers, causing fraud specialists to opine that the relief was falling out of favour. Mohamed is excellent news for fraud practitioners, as it confirms the flexibility of Norwich Pharmacal relief.

The key points of Mohamed are that:

  • Norwich Pharmacal relief continues to be a flexible remedy for parties at all stages of litigation, including pre-action and post-judgment;
  • The relief can assist anyone who lacks information and/ or documents essential to his case, in all contexts, whether civil or criminal, when the necessary elements are established;
  • Very often Norwich Pharmacal relief empowers persons who have been wronged, but do not know exactly by whom, to pursue their claims, by revealing the wrongdoer’s identity. However, the ambit of potential relief is open and is tailored to the needs and circumstances of the case;
  • The relief can be particularly helpful in fraud and other cases involving dishonesty and/ or potentially criminal conduct;
  • Courts are naturally careful in deciding whether to grant Norwich Pharmacal relief and will not allow a fishing expedition, but significantly, Mohamed makes it clear that Courts must not set the test too high or confine the jurisdiction within artificial barriers;
  • Ultimately the granting of the relief turns on what is in the interests of justice;
  • While important, the jurisdictional barriers to the relief, such as the respondent’s presence in England and the Court’s powers of implementation, are often surmountable through (eg) the availability of Norwich Pharmacal relief (or its equivalent) in other jurisdictions, ancillary to proceedings in England or otherwise; letters of request; and effective undertakings by applicants.  

Elements necessary to obtain Norwich Pharmacal relief

To appreciate the impact of Mohamed, it is helpful first to review the basics of Norwich Pharmacal jurisdiction. The relief derives its name from the House of Lords’ decision in Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] 2 All ER 943. Applicants must show:

  • a reasonable basis to allege that a wrong has actually or arguably been committed by an ultimate wrongdoer;
  • the disclosure of documents or information from the respondent is needed to enable action against the wrongdoer;
  • the respondent is not a “mere witness”, but is sufficiently mixed up in the wrongdoing so as to have facilitated it, even innocently, and therefore be in a position to provide the information sought; and
  • the order is necessary in the interests of justice on the facts of the case.  

Norwich Pharmacal compared to pre-action and non-party disclosure, witness summonses and letters of request  

The scope of the relief differs from that of pre-action disclosure under Rule 31.16 of the Civil Procedure Rules (“CPR”), which allows the Court to order disclosure of documents against respondents who are likely to become parties to the expected proceedings. In contrast, Norwich Pharmacal relief targets third parties who are unlikely to become parties to any proceedings (because they themselves are not wrongdoers), but who hold a key to unlocking the possibility of proceedings, whether by way of documents or information.

Once an action is underway, the Court has power under CPR 31.17 to order, against a person who is not a party to the proceedings, disclosure of documents likely to adversely affect the respondent, and/or support the applicant. However, Norwich Pharmacal relief may provide access to more than just documents and has a wider test: the order must be in the interests of justice. CPR 31.18 confirms that neither CPR 31.16 nor CPR 31.17 limit the Court’s Norwich Pharmacal powers: the remedies co-exist, with the most appropriate strategy for calling upon them depending on the facts of a specific case.

As an alternative to Norwich Pharmacal relief and disclosure under CPR 31.17, parties to proceedings might seek evidence from a witness and/or production of documents through the witness summons procedure in CPR 34.2, which requires the Court’s permission if the witness is to attend court or produce documents. The summons must be sufficiently certain to enable the witness to comply and can only require the production of evidence and documents which could be required at a hearing. In contrast, applicants for Norwich Pharmacal relief might never get to trial without the information or documents sought, which may or may not be relevant to the substantive issues to be tried. Witness summonses might assist where evidence and/or information is needed from a “mere witness” or a party, against whom Norwich Pharmacal relief is not available.

Mohamed: background facts

Arrested in Pakistan in April 2002, Mr Mohamed was held incommunicado in various locations until his transfer to Afghanistan in May 2004 and thence to Guantanamo Bay. During that time, he was interrogated by or on behalf of US government officials. After May 2004, Mr Mohamed confessed to US officials that he had been involved in Al-Qaeda and in terrorist activities. On the basis of those confessions, he was charged with terrorist offences under the United States Military Commissions Act. Before the charges could be considered by a Military Commission, the Convening Authority established under that Act had to decide whether the charges should be referred for trial. Mr Mohamed, seeking to avoid this referral, alleged that his confession had been obtained as a result of torture between April 2002 and May 2004.

The UK Government was not involved in the US interrogations. However, the UK Foreign Secretary accepted that Mr Mohamed’s allegations were arguable and that documents existed which might be considered exculpatory, or otherwise relevant to the US Military Commission trial. Mr Mohamed requested these documents, but the Foreign Secretary refused, on the basis that he had no duty to disclose them, and that disclosure would cause significant damage to the UK’s national security.

Mr Mohamed applied to the English High Court, inter alia, for Norwich Pharmacal relief to be granted, requiring the Foreign Secretary to provide the documents and information.

The decision of the English High Court

The Court granted Norwich Pharmacal relief, noting that the jurisdiction offers an exceptional though flexible remedy, which can adapt to novel circumstances, enabling applicants to obtain information essential to a fair trial when the elements are met. The Court reiterated that only an arguable case needs to be shown and that innocent participation by respondents is sufficient. In Mr Mohamed’s case, the UK Government was not a “mere witness”, because it had facilitated Mr Mohamed’s interrogation by having at the relevant time knowledge of the reports of his interviews, which contained information about his detention and treatment, although it had itself not been involved in the matter1.

Importantly, the Court criticised the High Court’s decisions in Mitsui & Co Limited v Nexen Petroleum UK Limited [2005] EWHC 625 (Ch) (in which Herbert Smith LLP acted for the unsuccessful applicant) and Nikitin v Richards Butler LLP [2007] All ER (D) 129 (Feb). It regarded Mitsui as wrongly characterising Norwich Pharmacal relief as a remedy of last resort, available only if the innocent third parties were the only practicable source of information. In the Court’s view, Nikitin had unduly increased the test of what was necessary to enable action by referring to information or documents “vital” to a decision to sue or ability to plead, which could not be obtained from other sources. The Court in Mohamed preferred the approach in Campaign against Arms Trade v BAE Systems plc [2007] All ER (D) 324 (Feb), which emphasised that the Court should, and was entitled to, have regard to all the prevailing circumstances in the matter in hand. Accordingly, Mohamed regarded Mitsui and Nikitin as having built “artificial barriers” around the relief, by unduly narrowing the ambit of the Court’s discretion and cluttering the content of “necessity”.

Comment

By properly applying the authorities, Mohamed helpfully clarifies that the test for Norwich Pharmacal relief should not be constrained, for example in the ways which contributed to the applications in Mitsui and Nikitin being unsuccessful. Mohamed reinforces that the imperative of the jurisdiction is to achieve justice, which demands a flexible approach. The scope of the information which might be ordered is case-specific and not confined to the identity of wrongdoers or the “missing piece of the jigsaw”. Although only a first instance judgment, Mohamed is perhaps of greater persuasive weight than Mitsui or Nikitin, as it was decided by two judges, including Thomas LJ of the Court of Appeal. Mohamed is also interesting because it involved the High Court applying Norwich Pharmacal case law, which has developed in a commercial context, to a public law human rights claim.  

Post-script  

It will be interesting to see whether the ECtHR’s recent decision in Financial Times Limited v UK (App. no. 821/03) has any bearing on the English court’s approach to Norwich Pharmacal relief outside the context of orders requiring journalists to reveal their sources. The Financial Times had relied on leaked documents to publish an article about the planned takeover of South African Breweries by Interbrew. The Court of Appeal held that the public interest in protecting the source of the leak was not sufficient to withstand the prevailing public interest in allowing Interbrew to seek justice against the source of the leaked information. The ECtHR disagreed, finding a breach of the Financial Time’s right to freedom of expression under Article 10 of the ECHR. It held that Interbrew’s interests were insufficient to outweigh that right, notwithstanding the serious consequences of the leak on the share market, the interests of justice and concern in relation to the prevention of crime. Applied narrowly to journalistic cases, this case shows Article 10 intervening with the Norwich Pharmacal test of necessity. Mohamed’s restoration of necessity to its lower threshold may encourage respondents to try and make more use of human rights arguments, including, for example the right to privacy, protected under ECHR Article 8.