Court considers a Norwich Pharmacal order application against a firm of solicitors

A Norwich Pharmacal Order (“NPO”) is a common law right  which requires a respondent who is  “mixed-up” in wrong doing (whether innocently or not), so as to facilitate that wrongdoing, to  provide “full information” on the alleged wrongful act. It was held in R(Omar) v Foreign Secretary (see Weekly Update 24/12) that it must be shown that the  respondent’s involvement facilitated the wrongdoing ie there must be some participation. However,  this test was challenged in Various Claimants v News Group Newspapers (see Weekly Update 27/13),  where Mann J  held that all that is required is that a respondent not be a “mere witness” (there,  the police had a duty to acquire information and so could not be described as “mere witnesses”).

In this case, the applicant sought a NPO against solicitors who had come into possession of certain  documents when instructed to act on behalf of the defendants. There was no allegation of wrongdoing against the solicitors themselves. The judge said that it was necessary to  establish that the solicitors were mixed up in the wrongdoing: “that it [the respondent]   has  innocently facilitated the commission of the alleged wrongdoing”. On the facts, the solicitors had had no connection at all with the wrongdoing – they  had merely had documents in their possession which might relate to it. It was also held that  the  fact that an application under CPR r31.16 (for pre-action disclosure) cannot succeed does not lead  to a conclusion that an application for a NPO must succeed. Accordingly, the application for the  NPO failed. The judge also pointed out that the information being sought could be obtained by an  application for pre-action disclosure against the defendants.