The case of Norwich Pharmacal v Customs & Exercise Commissioners [1974] AC 133 established the Norwich Pharmacal jurisdiction. The remedy obliges a third party who is “mixed up” in the wrongdoing to disclose to a claimant the identity of another person who the claimant may wish to bring proceedings against and/or information that amounts to “a missing piece of the jigsaw”. Norwich Pharmacal relief has been granted where proceedings will be in England and overseas.[1] The remedy, however, “has never been used to obtain evidence for use in proceedings”.[2]

This article examines the Court of Appeal case of R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA Civ 118, its effect on Norwich Pharmacal relief in foreign criminal proceedings, its potential persuasiveness in the civil sphere and discusses the relationship between common law relief, statutory regimes and the Court’s discretionary power.

The Case of Omar

The circumstances of Omar were political and unusual. On 11 July 2010, there was terrorist attack in Kampala, Uganda in which many lives were lost. The appellants were charged with murder in connection to the bombings in Ugandan criminal proceedings. They, however, petitioned the Ugandan Constitutional Court claiming their prosecution was an abuse of process and unconstitutional because of their unlawful rendition from Kenya to Uganda and subjection to torture and other cruel and inhumane treatment. Unsurprisingly, the Ugandan authorities denied these allegations. To support their case in the Constitutional Court, the appellants sought Norwich Pharmacal relief in English proceedings. They claimed that the Secretary of State for Foreign and Commonwealth Affairs had information or evidence, which assisted or enabled them to establish their case in the Ugandan Constitutional Court. The English Divisional Court refused the appellants’ application on the ground it lacked jurisdiction to grant Norwich Pharmacal relief.[3] This decision was appealed to the Court of Appeal.

Part of the problem for the Appellants was that there was already a statutory scheme governing the circumstances in which evidence was to be collected in England to assist in proceedings on foot in Uganda namely, the Crime (International Cooperation) Act 2003 (“the 2003 Act”). The Court of Appeal, in reaching its decision, considered the question, “whether Norwich Pharmacal relief is excluded where a statutory regime covers the ground. Put another way, do the terms of the statutory regime preclude the judicial development of an overlapping or adjacent remedy?”[4] Lord Justice Maurice Kay, who gave the majority judgment, thought the first issue to be whether or not the foreign proceedings are criminal or civil (the significance of this step will be discussed below). The Court of Appeal held that when the 2003 Act is in play then Norwich Pharmacal relief could not have been intended by Parliament to survive the introduction of the statutory regime.[5] The Court of Appeal also held that the appellants had not demonstrated that Norwich Pharmacal relief was “necessary” on the basis that there was another “rational approach” available to them (namely, applying for disclosure against the Ugandan Government in the Ugandan Courts).[6]

Why did Kay LJ consider it necessary to determine whether criminal or civil foreign proceedings are on foot?

The Court of Appeal in its judgment in Omar referred to Lord Dyson’s passage in the case of R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] 2 AC 15 at [33]:

“if the two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament”[7]

Consequently, when is Norwich Pharmacal relief excluded by a statutory regime? The relevant statutory regimes will now be discussed, with reference to their interplay with Norwich Pharmacal relief, in order to discuss why it is necessary to first consider whether civil or criminal foreign proceedings are on foot.

Criminal statutory regime

The relevant statutory regime to enable English Courts to assist in obtaining evidence for use in foreign criminal proceedings is the 2003 Act. According to Burnett LJ[8], “the statutory scheme found in the 2003 Act admitted of no parallel common law jurisdiction enabling a court to order disclosure of evidence into foreign proceedings”.[9] The 2003 Act contains critical features.[10] Namely, the extent of ministerial discretion, national security safeguards and Crown service paramountcy. These are characteristics that the Norwich Pharmacal remedy does not have.[11] Unsurprisingly, the Court of Appeal in Omar decided Norwich Pharmacal relief was not available when the 2003 Act is in play.

Civil statutory regime

The relevant statutory regime that enables English Courts to assist in obtaining evidence for use in foreign civil proceedings is the Evidence (Proceedings in Other Jurisdiction) Act 1975 (“the 1975 Act”) which is reflected in rule 34 of the Civil Procedure Rules and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970.

The wording of the 1975 Act does not appear to afford a broad discretion on the Secretary of State when deciding whether or not to act upon a request from a foreign Court for disclosure of information. It is, therefore, less clear what Parliament intended when passing the 1975 Act when compared to the wording of the 2003 Act. That is, whether Parliament intended to exclude all aspects of Norwich Pharmacal relief in 1975.

In foreign civil proceedings Norwich Pharmacal relief may be sought to find the “identity” of a defendant or the “missing piece” of the puzzle. This is because, in such circumstances, foreign civil proceedings are usually not on foot, a point at which the 1975 Act is not in play. Accordingly, Omar may have limited application in the civil sphere. This, however, will depend on the interpretation of the 1975 Act. The question that then follows is whether there is scope for Norwich Pharmacal relief when the civil statutory regime is in play?

Discretionary power of the Court to award Norwich Pharmacal relief

A Court may exercise its discretion to award Norwich Pharmacal relief in situations where the 1975 Act is in play when Norwich Pharmacal relief is considered to be in the interests of justice and such exercise would continue to develop the Norwich Pharmacal remedy. To support this proposition, in Omar, Ms Phillippa Kaufmann QC argued that Norwich Pharmacal “provides a flexible remedy which can be adapted to meet the interests of justice”[12] and made reference to the Divisional Court case of R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2):[13]

“…where in this truly exceptional case information is said to be necessary to exculpate an individual facing a possible death penalty if convicted, we consider that a court is entitled to exercise the jurisdiction to order certain specific information be made available to serve the ends of justice…”

Echoing the need for flexibility in the common law, Mann J in Various Claimants v News Group Newspaper Ltd referred to the “need for continuing flexibility in the development of Norwhich Pharmacal principles”.[14] Lord Sumption JSC in Singularis Holdings Ltd v PricewaterhouseCoopers[15], however, narrowed the discussion on the remedy’s flexibility; outlining the remedy should only apply when it is necessary to give effect to a recognised legal principle.[16] Lord Mance JSC in the same case referred to the Divisional Court in the case of R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1)[17] when considering the scope and caveats on the flexibility afforded to Norwich Pharmacal relief stating [140]:

“…Norwich Pharmacal relief may extend beyond the discovery of the identity of a wrongdoer or of a missing piece of the jigsaw, but under the strict caveat that the action cannot be used for wide ranging discovery or the gathering of evidence and is strictly conned to necessary information”

Further, in AB Bank v Abu Dhabi Commercial Bank PJSC[18], the Court considered whether or not it had jurisdiction to permit service of an application for a Norwich Pharmacal Order overseas. Teare J stated that even if he were wrong about the “gateways” argued for allowing service he would have exercised his discretion to decline service as there was a risk the Norwich Pharmacal Order might breach the recipient’s state laws and the information sought could be obtained by alternative means.

With regard to the above authorities a Court, when considering the interaction between Norwich Pharmacal relief and whether or not it is excluded by virtue of the 1975 Act, may have regard to the remedy’s flexibility, whether there is an alternative, its ability to serve the interests of justice and the extent to which the evidence sought is necessary.

So where are we now?

In circumstances where the 1975 Act is considered not to be exhaustive the Court may exercise its discretion to award Norwich Pharmacal relief. Although, the 2003 Act was held in Omar to be comprehensive, a distinguishing feature between the two statutory regimes is the scope of discretion afforded to the Secretary of State. It is, therefore, reasonable that Norwich Pharmacal relief may be awarded in the civil sphere in circumstances where (i) it is in the interests of justice to do so (ii) Norwich Pharmacal relief would give effect to a recognised legal principle and (iii) would enable necessary information to be sought beyond the wrongdoer’s identity and finding a missing piece in the jigsaw.

It is only a matter of time, however, before the relationship between the 1975 Act and Norwich Pharmacal relief for obtaining evidence in English Courts for use in civil foreign proceedings is discussed with reference to Omar; no doubt further defining the scope of the common law remedy and highlighting its nuances.