Master decides whether a Norwich Pharmacal order should be made where payments were mistakenly made to third parties

In an earlier decision, Master Matthews refused the claimant's applications for Norwich Pharmacalorders against various banks. A Norwich Pharmacal order is a common law right which requires a respondent who is "mixed-up" in wrongdoing (whether innocently or not), so as to facilitate that wrongdoing, to provide "full information" on the alleged wrongful act. In this case, the applicant is a bank which mistakenly made electronic payments to the wrong bank accounts (the respondents to the applications are the various banks at which these accounts are held).

The Master had held that there had been no "wrongdoing" when the payments had been made to the wrong accounts – such wrongdoing would only arise if the account holders subsequently refused to repay (and there was no evidence of such refusals) – and hence the recipient bank had not been "mixed up" in any wrongdoing.

However, Birss J has since granted Norwich Pharmacal orders to the claimant in respect of other recipient banks (see Weekly Update 30/14). Birss J had found that a claim in restitution (unjust enrichment) was a "wrong" capable of justifying a Norwich Pharmacal order. Although he felt bound to follow that decision, Master Matthews said he thought that view represented a "significant extension" of the earlier law and that a distinction should be drawn between a claim to trace funds and "a mere debt" (and that there is no legal wrong in a third party merely receiving payments). Furthermore, the Master noted that the recipient banks had done nothing to "facilitate" the mistake in this case.

Although bound to follow the decision of Birss J ("unless and until a different view is reached at High Court judge level or above"), the Master said that he would order disclosure of only the customers' names and addresses (if the previously refused applications were renewed). He said it would be "unduly intrusive and unnecessary" to order details of email addresses, telephone numbers and dates of birth to be disclosed (and, indeed, Birss J had also refused to order the disclosure of dates of birth). Such details were not needed for the claimant to commence proceedings.

Finally, any order would require an undertaking by the claimant "not, without the permission of the court, to use any documents or information obtained…except for the purpose of enforcing its legal rights in connection with the mistaken payment".