Case Alert - [2016] EWHC 2082 (Comm)

Judge rules that court does not have jurisdiction to permit service out of the jurisdiction of an application for a Norwich Pharmacal Order

A Bangladeshi bank claimed that a Singaporean company had committed a fraud on it (and that this claim was connected to England because the parties had agreed that English law and jurisdiction would apply to their agreement). The claimant alleged that a Dubai bank had been mixed up in the fraud and sought a Norwich Pharmacal order against it from the English courts in order to obtain more information about the alleged fraud. The claimant sought to rely on three gateways under PD6B:

  1. A claim is made for an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982 (PD 6B para 3.1(5)). This is the first time that the English courts have had to consider whether they have jurisdiction to allow service out of the jurisdiction of an application for a Norwich Pharmacal order in reliance on this gateway. Teare J noted that the object of the gateway is to aid foreign proceedings. He held that the gateway cannot apply to proceedings within the jurisdiction. Ordinarily, if the proceedings were taking place here, service out of an interim application would not be required because the defendant is here or because permission had been given to serve the substantive proceedings out of the jurisdiction. An application for a Norwich Pharmacal order is not "interim" within the meaning of para 3.1(5), because the third party from whom information is sought will not be the defendant to the substantive proceedings. Norwich Pharmacal relief is the final relief being sought against that third party.
  2. A claim is made for an injunction ordering the defendant to do an act within the jurisdiction (PD 6B para 3.1(2)). The judge held this gateway did not apply. Although the bank could comply with the order in England, the injunction would not require that: it would be entitled to take steps to procure the requested information in the UAE.
  3. A claim is made against a person on whom the claim form will be served and the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim (PD 6B para 3.1(3)). This gateway did not apply either. The claimant did not wish to serve a claim form on the bank and nor is the bank jointly liable for any fraud.

The judge went on to hold that, even if he was wrong about the gateways, he would have exercised his discretion to decline permission to serve out. That was because there was a risk that compliance with the Norwich Pharmacal order might breach UAE law and because there was a means by which the information could be provided in the UAE (by seeking the consent of the Central Bank).

One further issue in the case was whether service of the application could, alternatively, be made at the UK office of the bank. Section 1139(2)(b) of the Companies Act 2005 provides that service may be made by leaving or posting the claim form to "any place of business of the company in the UK" (this wording is repeated in CPR r6.9(2)para 7). Teare J accepted that such an argument could be made (the available evidence suggested that the UK office had no business of its own and it's only activity was marketing for the Dubai bank). However, he concluded that he did not have sufficient evidence to reach a decision on this issue. He relied on Cape Industries v Adams [1990], which he said suggested that "information about other matters concerning the relationship between the two companies must be considered before a decision can be reached as to whether ADCB Dubai has a place of business within the jurisdiction".

COMMENT: In light of this decision, a suggested approach for a claimant who wishes to seek a Norwich Pharmacal order against a foreign third party might be to seek an order requiring the third party to provide the requested information to solicitors in London (thus bringing the application within the gateway of para 3.1(2)). Whether the court would acceded to that request remains to be seen, though.