The extent of the use of the Norwich Pharmacal jurisdiction, which enables disclosure orders against non-parties, in the Isle of Man was recently tested before the Isle of Man High Court. The court ruled that Norwich Pharmacal orders are for the provision of information rather than evidence and are to be used as a last resort.

In Templeton Insurance Limited and Bradford & Bingley International Limited, Deemster Corlett faced an application based on the Norwich Pharmacal disclosure jurisdiction in respect of copies of certain banking information. The applicants contended that the information sought may be relevant to proceedings in England being amended or fresh English proceedings being commenced. Deemster Corlett took the opportunity to comment on how Norwich Pharmacal works in such circumstances.

Deemster Corlett stated that the application was not brought in connection with existing Manx proceedings; nor was it brought in relation to documents which would be disclosable in the existing English proceedings. However, he highlighted that it could enable the claimants to amend the English proceedings or, conceivably, to start fresh proceedings.

Deemster Corlett was satisfied that this was not an application for the provision of evidence, pointing out that if it were, the application would fall foul of Section 56B(3)(b) of the High Court Act 1991. He confirmed that the only way in which the Manx court can collect 'evidence' for use in foreign civil proceedings is under the Evidence (Proceedings in Other Jurisdictions) Act 1975. He also confirmed that he considered that the Norwich Pharmacal jurisdiction upon which the application was founded was for the provision of information rather than evidence. He was satisfied that the application had been properly brought.

The deemster outlined that Norwich Pharmacal is to be used in cases where it is questionable that a wrong has been committed, but where the circumstances are such that, unless disclosure is ordered, the applicant will be unable to investigate what has occurred or, where appropriate, to bring proceedings. Specific reference was made to Gee on Commercial Injunctions, in particular to the following passage:

"In principle the contemplated steps should be effective to redress the wrong and the information is not restricted to identifying the wrongdoer but can extend to full information required for this purpose including information about what the wrongdoer has done with his assets."

It was made clear in the judgment that the alleged wrongdoer in the present case was clearly identified and had been known for some time, but further information was being requested, and that there was a proper jurisdictional basis to do so.

In the circumstances, Deemster Corlett was persuaded to grant the application, particularly in the light of a pending trial in England. He stated:

"I bear in mind, of course, that the Norwich Pharmacal jurisdiction is supposed to be a relief of last resort, but in the light of the time being short between now and the trial in England, I believe it is right to say that I am using this, in essence, as an instrument of last resort."

The court considered that granting the application was a proportionate response and also imposed a de minimis limit in respect of amounts to be identified in the banking documentation.

For further information on this topic please contact John T Aycock at M&P Legal by telephone (+44 1624 695800), fax (+44 1624 695801) or email ([email protected]).